Cornellians United

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Committee on Expressive Activity Comments

COMMENTS OF CORNELLIANS UNITED FOR FREE SPEECH

Cornellians United For Free Speech submits these comments in response to the October 30 draft final report of the Cornell Committee on Expressive Activity. Cornellians United is a group of students, faculty and alumni dedicated to advancing freedom of speech, viewpoint diversity, academic freedom and due process on the Cornell campus. Our website is www.cornelliansunited.org

1. Cornell Should Adopt Rules for the Maintenance of Public Order that are protective of free speech and the right to peaceful assembly.

Since 1970, Cornell has a legal obligation to adopt Rules for the Maintenance of Public Order. Such rules must not “be construed to limit or restrict the freedom of speech and peaceful assembly;” NYS Education Law Section  6430(6)(a). The rules must “govern the conduct of students, faculty and other staff as well as visitors and other licensees and invitees on such campuses and property.”  Because students, faculty and staff protest together, it would be unfair for different standards to apply to each group.

Cornell had a well-accepted set of Rules for the Maintenance of Public Order from 1970 through December 10, 2020, when they were repealed by the Board of Trustees over the objection of the University Assembly and many others. At that time, the criticism of the then-existing Rules were that they were “too legalistic” and detailed. Since the Committee finds “Many of the provisions currently housed in Cornell’s interim expressive activity policy are not special to expressive activity but pertain to all activities on campus,” we suggest refocusing the document from a stand-alone expressive activity policy to being a new edition of the Rules for the Maintenance of Public Order.  Cornell is required to have the latter but not the former. If the Committee does not address what Rules for the Maintenance of Public Order should contain, it is likely that whoever authors such Rules could undo or contradict the work of the Committee.

For the convenience of the Committee, here are links to a variety of Rules for the Maintenance of Public Order adopted by other universities in New York State:

2. Cornell’s Approach to Group Accountability vis a vis Personal Accountability is Problematic

In almost all cases, misconduct by organizations is performed by individuals. Similarly, most individuals engaging in misconduct may be members of several organizations. Cornell needs clear policies on when an organization can be held accountable for the action of some of its members and when individuals should be punished for the misconduct attributable to the organization for which he is a member.

Although there are no written policies, Cornell’s current practice seems to be that if three or more people who are a member of an organization, engage in misconduct, OSCCS will bring charges against an entire organization, club, team or fraternity.  Yet, in Spring 2024, Students for Justice in Palestine and the Coalition for Mutual Liberation (CML) staged an illegal encampment on the Arts Quad, and OSCCS took action against just individual CML leaders of the encampment without filing charges against the two organizations.  In contrast, Climate Justice Cornell was processed by OSCCS for making a false application for the permit that resulted in the establishment of the encampment as an temporary “art installation” on the Arts Quad. (Yet, we note that many other Climate Justice Cornell protests, such as blocking the bridges over the Gorge and various Cornell streets and sidewalks in earlier years did not result in prosecutions or suspensions.)

In October 2024, when CML staged an illegal disruption of the ILR Career Fair in the Statler Ballroom, a faculty member who witnessed the event, filed a complaint with OSCCS against an organization regarding a clear cut violation of the Student Code of Conduct.  There is nothing to indicate that OSCCS has processed the complaint under the Student Code Procedures.

The goals of conduct regulation are to deter future violations while satisfying the community’s sense of due process and fundamental fairness.  Cornell’s current approach toward group accountability does neither. It appears to apply “guilt by association” by arbitrarily punishing individuals who may not have engaged in the actual misconduct itself. For example, the Trustees’ Greek Recognition Policy requires: “Collective responsibility for the behavior of the members when in their chapter house or when acting as a group outside of the chapter house.” Yet, Cornell does not impose a similar expectation on other clubs, teams or student groups and certainly not on faculty or staff groups.  A uniform set of criteria for all groups should be developed.  The group punishment / “collective responsibility” wild card has a needless chilling effect on free expression at Cornell. People who are members of a group should not be held accountable and punished for actions that they did not take. The values embodied in the “freedom of association” case law under the First Amendment should be honored at Cornell.

It is highly troubling that an organization such as Students for Justice in Palestine (which has registered as an organization) can evade accountability by forming the Coalition for Mutual Liberation (which refuses to register) and then acting in the name of the latter group. The final document should address the obligations of unregistered groups to comply with the rules.

3. Cornell’s Harassment Definition Should Reflect the Davis Test.

The draft Final Policy does not reflect current law and could be read to perpetuate prejudice.  Remember, the Committee’s mandate is to establish time, place and manner distinctions in a content neutral manner.

The Committee claims:

“Under well-established legal precedents, a hostile environment exists when a community member is subject to unwelcome conduct that a reasonable person would find to be objectively offensive and so severe or pervasive that it limits or denies the community member’s ability to participate in or benefit from a university program or activity.”

However, under both the Supreme Court case of Davis v. Monroe County Board of Education as well as the currently-effective 2020 Title IX Regulations, the test is: “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” All three elements must be present.

4. Cornell’s Fact-finding, Adjudication and Setting of Punishment Should be Community Driven Rather Than Administrator Driven

The hallmark of Cornell’s conduct adjudication system is that fact finding and punishments are determined by hearing panels instead of by members of the Central Administration.  This has been true not only of the former Campus Code of Conduct, but also the systems that were in place in the 1950s and 1960s.

We are very concerned that the recent interim suspensions disrupt this role.  Because most of the protests on campus seem to be directed toward expressing dissatisfaction with the Central Administration and/or the Board of Trustees, they should not play a role in invoking or applying the interim suspension policy or its “progressive measures.” Under the existing Student Code, the  accused is presumed to be innocent and interim suspensions are not allowed if ”other less restrictive alternatives are available.” Because the VP of Student and Campus Life hears appeals on the appropriateness of interim suspensions, he should not play any role in the decision to suspend pending a hearing. For this reason, the Office of Student Conduct and Community Standards (OSCCS) should be returned to the University Assembly rather than reporting to the Vice President of Student and Campus Life.

The hearing panels should be impartial fact finders.  Because many of the cases that will go to the hearing panels involve First Amendment principles, the panel members should receive training on free speech issues. In terms of the current Student Code Procedures,Section II(H) should be amended to delete “Training focused on diversity, equity and inclusion that is approved by the Presidential Advisors on Diversity and Equity (“PADE”) shall be required on an annual basis.” Such diversity training tends to confuse panel members with vague concepts that are incompatible with unbiased fact finding and content neutral regulation.

5. Transparency of the System Needs Improvement

For a conduct system to earn the respect and trust of the community, it must be transparent. There should be widely-distributed, clearly-written rules of conduct with a well documented set of procedures.  The current Interim Expressive Activity Policy does not contain any procedures. The Student Code procedures lack a clear time table of when cases will be investigated and brought before a hearing panel.  Some students have claimed that OSCCS deliberately delays hearing in order to coerce students into agreeing to alternative dispute resolutions that would only be palatable if no meaningful hearing option is available.  For this reason, annual reports from OSCCS are essential to allow the community (including accused students) to understand the nature of the caseloads and the processing time frames to bring cases to a hearing.

It is impossible to assess the reasonableness of an interim suspension, if the length of time to reach a hearing is kept secret.

The Office of Judicial Administrator, predecessor to the OSCCS, issued annual reports that were made public. When the Student Code Procedures were adopted, they had a similar provision, which reads:

“The Director shall provide an annual report to the Vice President, the SA and the GPSA on the operations of the office and of the student conduct system. The Director [of OSCCS] shall undergo an annual review overseen by the Vice President or designee. The Vice President or designee shall request and thoughtfully consider feedback from the SA and GPSA as part of that annual review.”

We have been working since May 2024 seeking access to the Annual Reports of OSCCS. OSCCS refuses to make their reports public, and the Vice President has not responded to requests to release the reports. There is no public record of the SA and GPSA participating in the annual review. Further the shared governance body with jurisdiction over “campus codes of conduct” – the University Assembly – is oddly excluded from the annual OSCCS review process.  Greater transparency is urgently needed.

Transparency makes the difference between a fair and open process and a Star Chamber proceeding.

6. There Should Be a 45-Day Limit on any Interim Suspension

If the public had full access to the OSCCS annual reports and case loads, we could make a recommendation backed by solid evidence on what time limit is reasonable for interim suspensions.  Since the Cornell community is kept in the dark, we will speculate that a 45-day period should be the maximum amount of time needed to bring a case under an interim suspension to the hearing.  If the OSCCS cannot hold the hearing in that time period, and the accused poses such a serious threat to the health and safety of the campus, then 45-days should be sufficient to obtain an injunction from the local courts to block the presence of the student on campus.  Either way, an objective third party is making a decision within 45-days and the interim suspension does not become a greater punishment than the penalty handed down by the hearing panel after a full and fair hearing.

Conclusion

We congratulate the Committee for its hard work on these difficult issues.  Although the Draft Final Report addresses many concerns, it relies upon the existing enforcement mechanisms for student, faculty and staff misconduct.  The Committee’s work has exposed major flaws and inequities in Cornell’s adjudication of conduct, and we hope that the Committee’s final report is just the first step in much needed reforms.