"Cornell Statement on Responsible Speech and Expression"

In reply tio the 11/16 posting of Prof. Lieberwitz posting the AAUP Statement on Responsible Speech and Expression:

Many thanks for posting the statement in which I am in general agreement.  It is the responsibilty of every student, faculty, non-academic staff member, Trustee and alumni to protect freedom of speech, freedom of inquiry and academic freedom on the Cornell campus.

However, we need to avoid circular reasoning here.  The problem with the current UC proposal before the CJC and the UA is that it seeks to define away many important free speech rights and would bring a chilling effect on free speech by way of a new Judicial system that strips away important due process safeguards.  Since 1970, Cornell has held students, faculty and staff to the same standards when dealing with protests, demonstrations, audience reaction to invited speakers, etc.  The University Senate and later its successor the Univrsity Assembly has hammered out what rules should apply, and students, faculty and staff all sit in judgment on hearing panels when there is an alleged violation.  The process was kept sparate from Day Hall.  I acknowledge that few faculty or staff have been called before the Judicial Administrator over the past 50 years.  But isn't it comforting that if a faculty or staff is accused of such misconduct, they have the ability to get a fair hearing outside the internal politics of their academic department or college?  In today's cancel culture, some members of the Cornell community are demanding that specific faculty be fired merely because of expressing unpopular political views outside of the classroom.  The answer is: the community has agreed upon rules and a method for adjudicating how those rules are applied.  Day Hall has been long removed from such dabates.  Unfortunately, some would ask the Board of Trustees on Dec 10 to overturn all of that and turn the whole issue back to Day Hall to the peril of students, faculty, staff and even campus visitors.  Like George Orwell's Animal Farm, the definition of any word in the AAUP Statement could then be redefined to take away the protections intended.

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Section 4.10: Harassment / Humiliation

The comment filed on 11/15 at 20:48 makes an excellent point.  The definition of harassment has been expanded well beyond the current Campus Code of Conduct which defines the offense as:

"To harass another person (1) by following that person or (2) by acting toward that person in a manner that is by objective measure threatening, abusive, or severely annoying and that is beyond the scope of free speech."

This clear and precise definition is easy to understand and could be applied by any fact-finder on a hearing panel.  The proposed Section 4.10 would introduce the word "humiliation" at two points, which makes the violation far broader and more subjective.  

Aside from vagueness there is also the problem that Section 4.10 tries to describe the boundaries of free speech.  This is because most harassment incidents involve verbal, written or symbol speech.  The current definition expressly excludes "free speech" from the definition.  However, proposed Section 4.10 backpedals from this important protection:

 

Because of protections afforded by principles of free speech and academic freedom, expression will not be considered harassment unless the expression also meets one or both of the following criteria:

     - it is meant to be either abusive or humiliating toward a specific person or persons; or

     - it persists despite the reasonable objection of the person or person targeted by the speech.

This is not the correct boundary of free speech.  In 1999, the U.S. Supreme Court in Davis v. Monroe County Board of Education, interpreted Title IX to create a test that the conduct must be “so severe, pervasive, and objectively offensive” that it denies its victims equal access to education.  The Department of Education has incorporated the Davis test into its definition of sexual harassment, and logic would dictate that harassment outside the sexual context would be at least as protective of free speech.

The UC draft having gone from an express protection of free speech to the above quote, then appears to even strip that protection away.  It adds, "Offensive conduct that does not by itself amount to harassment as defined above may be the basis for educational or other non-punitive interventions to prevent such conduct from becoming harassment if it were repeated or intensified."  This sentence creates an impermissible chilling effect on campus free speech.  Either conduct is a prohibited violation or it is not.  If a complanant alleges conduct which does not violate Section 4.10, no complaint should be accepted and the respondent should not be subject to "non-punitive interventions."  There are many mechanisms on campus to mediate disputes from RAs in the dorms to the Ombudsman.  The stigma and burden of a Campus Judicial proceeding should not attach to a student offending another student while exercising free speech rights.  Accordingly, this sentence should be deleted from the definition of "harassment."

It bears repeating.  Unlike some other colleges, Cornell has never adopted a "speech code."  Cornell values free speech and academic freedom, as reflected in the current Campus Code.  Proposed Section 4.10 is a backdoor attempt to regulate free speech and should be rejected.  The current Campus Code definition should be retained.

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Code Jurisdiction Concerns

I believe that the Codes and Judicial Committee ("CJC") and University Assembly ("UA") must deeply discuss the impact that the Code revisions may have on the jurisdiction of the Code. It is imperative that the Code revisions process remain with the UA, primarily through the CJC bringing action to the UA and subsequent approval / consideration of such changes by the President. As such, there needs to be clarity in the proposed Code changes that maintains language found in the Preamble and Article IV of the current Code:

Preamble: “This Title is necessarily general. Its purpose is to inform the Cornell community of the general principles and policies upon which the Cornell judicial system operates, and to give general guidance to the judicial system as it handles specific cases arising under regulations authorized by the Board of Trustees, including legislation adopted by the University Assembly (or its successor) and approved by the President as representative of the Board.”

Article IV: “The Regulations for Maintenance of Public Order were adopted by the Board of Trustees and may be amended only by action of the Board of Trustees, upon the recommendation of or after consultation with the University Assembly”.

The proposed Code changes are silent or vague on whether this jurisdiction is maintained, as the only relevant wording is as follows:

Proposed Code Change: “Authority and administration of the Code and associated Procedures are vested with the Vice President for Student and Campus Life (VP SCL), in consultation with the elected Assemblies of the University”.

The University Assembly encompasses each constituent group on campus and historically amendments have come through our body. This is a different situation altogether as rather than an amendment, or amendments, we were asked to revise an entire Code. I believe that amendments should still come through the UA, then to the CJC, back to the UA, and then to the President for approval.

Proposed Code Change: In addition to this, the University Assembly is not one of the designated groups that advises to the appointment of the OSCCS Director, the Complaint’s Codes Counselors, and the Respondent’s Codes Counselors under the proposed code. Under the current code, the appointment of Judicial Administrator and the Judicial Codes Counselor, the equivalent to the Complaint’s Code Counselor and Respondent’s Code Counselors respectively, are approved by the UA as stated in Section 3.2 of the University Assembly Charter. It is important for all relevant constituencies to be involved in this appointment process, not only the SA, GPSA, and the OSA but also the UA given its jurisdiction over the Code.

I am writing this here because comments are closing tomorrow and I believe this is pertinent for all community members to be aware of.  

Best, Logan Kenney, Chair of the UA

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"Cornell Statement on Responsible Speech and Expression"

Submitted by Risa Lieberwitz, Professor, ILR School, and President of the Cornell University Chapter of the AAUP:

The Cornell University Chapter of the American Association of University Professors (AAUP) endorses and recommends for adoption as Cornell policy the following proposed “Statement on Academic Freedom and Freedom of Speech and Expression” (amending the proposed “Cornell Statement on Responsible Speech and Expression”:

Fall 2020 - Cornell Statement on Academic Freedom and Freedom of Speech and Expression

General Principles

Cornell University is committed to fundamental principles of academic freedom and rights of free expression. Freedoms to engage in research and scholarship, to teach and to learn, to express oneself and to be heard, and to assemble and to protest peacefully and lawfully, are essential to the function of the University as an educational institution. As stated in the American Association of University Professors (AAUP) 1940 Statement of Principles of Academic Freedom and Tenure, “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.”

The University’s Statement of Core Values affirms the fundamental nature of Free and Open Inquiry and Expression:

We are a community whose very purpose is the pursuit of knowledge. We value free and open inquiry and expression—tenets that underlie academic freedom—even of ideas some may consider wrong or offensive. Inherent in this commitment is the corollary freedom to engage in reasoned opposition to messages to which one objects. https://president.cornell.edu/initiatives/university-core-values/

The University recognizes and affirms the importance of extending to all students and employees the core values of free and open inquiry and expression. The University further recognizes and affirms employees’ right to communicate freely outside of the scope of their Cornell employment in their capacity as a private citizen.

The University endorses the Faculty Statement on Academic Freedom and Responsibility adopted by the University Faculty on May 11, 1960, which provides:

Academic Freedom for the Faculty means: Freedom of expression in the classroom on matters relevant to the subject and the purpose of the course and of choice of methods in classroom teaching; from direction and restraint in scholarship, research, and creative expression and in the discussion and publication of the results thereof; to speak and write as a citizen without institutional censorship or discipline. . . .

Academic freedom is valued very highly at Cornell, and the University Faculty defends it tenaciously; nevertheless, the same University Faculty is disinclined to see the concept abused. Academic freedom does not imply immunity from prosecution for illegal acts of wrongdoing, nor does it provide license for faculty members to do whatever they choose.

The University recognizes and affirms that academic freedom also encompasses the freedom to address any matter of institutional policy or action whether or not as a member of any institutional governance body.

The University further affirms that “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve. Extramural utterances rarely bear upon the faculty member’s fitness for continuing service. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.” [AAUP 1940 Statement of Principles of Academic Freedom and Tenure, with 1970 Interpretive Comments, n.6]

Responsibilities

The Cornell community, including the University Assembly and other elected governance bodies, have a responsibility for protecting freedom of speech and academic freedom. Towards that end, the President or the President’s designee shall consult with the University Assembly, Faculty Senate, Student Assembly, Graduate and Professional Student Assembly, Employee Assembly, and other elected campus governance bodies on a regular basis to ensure that the community’s fundamental commitments to free expression, academic freedom, and respect for others are safeguarded.

Responsible enjoyment and exercise of these rights includes respect for the rights of all. Infringement upon the rights of others, including the rights to speak and to be heard, or interference with the peaceful and lawful use and enjoyment of University premises, facilities, and programs, violate this principle.

The University is committed to protecting academic freedom and to creating a learning, living, and working environment free of discrimination, harassment, and sexual and related misconduct. Based on the protections afforded by academic freedom, speech and other expression will not be considered prohibited conduct unless this speech or expression meets the definition of discrimination, harassment, and sexual and related misconduct under Cornell policy and also meets one or both of the following criteria: a reasonable person in the setting would find it to be abusive or humiliating toward a specific person or persons; or it persists despite the reasonable objection of the person or persons targeted by the speech. [See, Cornell University Policy 6.4, Prohibited Bias, Discrimination, Harassment, and Sexual and Related Misconduct and Procedures http://titleix.cornell.edu/procedures/ ]

The University recognizes that outdoor picketing, marches, rallies, and other demonstrations are traditional and legitimate forms of self-expression and dissent on campus. In recognition of their importance to freedom of speech, no university permit is required for such outdoor activities for members of the Cornell community; however, consultation with the university is encouraged to ensure the safety and protection of rights for all those involved.

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Re: Section 4.10

Some of the language of Section 4.10 seems vague compared to other parts of the code. In particular, the use of the word "humiliating" is of concern. The section does not make clear what the definition of "humiliating" would be. Is "humiliating" someone something serious, like maliciously trying to embarass them or causing them to feel shame (in which case, it should be included in the Judicial Code revision)? Or, could it be something more innocent/simple like politely pointing out the broken promises made by someone running for office or highlighting the flaws in one's argument in the course of public debate (both of which could cause embarassment and, in turn humiliation)? In any case, before these changes are adopted to the Campus Code, the University should make the definition of the word "humiliating" more clear.

Now, if the University aspires to uphold academic freedom above all else, it would be wise to put forth a narrower, more serious definition for the word "humiliating". In my view, it seems as though the University intends to prevent harmful and unwanted harassment from occurring in the Cornell community, a goal which I fully support. Malicious harassment should be stopped and abolsutely has no place in a community like Cornell University.

However, there are moments in contentious and spirited debate in which one may feel embarassed or humiliated, due to the facts and arguments presented. In my experience, those who engage in controversial debate and campus discourse do not intend to embarass their peers. Rather, they intend to build them up, through the rigorous processes of formulating ideas, testing them, and rethinking them again and again. These moments, though they may cause temporary humiliation and embarassment, should not be punished. Rather, they are a critical part of the learning process and the free, provocative academic setting we find ourselves in today.

It is imperative that the University, before adopting these changes:

1) Explicitly defines what "humiliating" means.

2) Chooses a definition of "humiliating" that only covers situations in which someone intentionally and maliciously engages in this sort of conduct, not situations inherent in the learning process or academic debate/discourse.

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Strongly Oppose these Changes

Do NOT make any changes that will:

1. Eliminate the right to cross-examination
2. Deny the right to a public hearing
3. Reduce the "clear and convincing evidence" burden of proof
4. Prohibit or inhibit the participation of independent counselors

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Standard of Proof and Other Models

Thank you for your thoughtful comments.  When the University Senate first adopted the Code and the Judicial Procedures, the standard was "proof beyond a reasonable doubt."  It was subsequently reduced to "clear and convincing evidence"  which is the standard now in effect.  The Foundation for Individual Rights in Education (FIRE) also has a model code which recommends the "clear and convincing evidence" standard.  The University Counsel's proposal would drastically broaden the scope of the Code to include any organization which has Cornell students as members.  So, student-alumni, student-faculty, professional and town-gown organizations are now having their rights and property at risk.  Given the broaden scope, the process cannot be said to be "about student development."

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Consideration of Bias: Harassment and Sanctions Generally

Historically, the Cornell judicial system (as well as the nation's criminal justice system) strives to attain “blind justice” that is without regard to the status of the complainant or respondent.  Indeed, Section 1 of the University Counsel’s draft states, “The Code is drafted to safeguard individual rights as well as those rights conferred by the University, reflecting its dedication to fairness in the treatment of all members of the university community.”  Section 1 also declares Cornell to be a place “where students, faculty, and staff with different backgrounds, perspectives, abilities, and experiences can …  feel empowered to engage in any community conversation.”  The University Counsel’s draft departs from goal at two points.  First, Section 4.10 definition of the elements of Harassment provides, “The fact that the conduct targets a group that has historically experienced discrimination may be relevant to a contextualized judgment about whether the conduct creates a hostile environment.”  This provision is being added to the current Code.  Second, the University Counsel’s draft is based upon the Presidential Task Force on Campus Climate Subcommittee on the Regulation of Speech and Harassment whose final report (at 8) recommended:

We believe that nondiscrimination is a core university value. As such, we believe the university should at least have the option of suspending or expelling from our community someone who violates the campus code when the violation was motivated by bias. 

To meet Cornell’s stated goals of fairness, the consideration of “bias” or the status of the parties must be separated from proving each element of the alleged offenses.  For this reason, The Spring CJC draft (at Section 6.8) provided for two hearing phases: first to establish responsibility and second to establish sanctions or remedies.  The University Counsel’s current draft (Section 20) does not contemplate a further sanction phase of the hearing and merely asks the parties to have written impact statements ready for the panel once responsibility has been determined.

By way of comparison, NYS Penal Law § 485.05 defines a hate crime in terms of a set of underlying crimes with the additional requirement that the accused selected the victim because of his characteristic  or committed the act in substantial part because of a belief that the victim had the characteristic.  The hate crime law adds an important limitation, “Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people's burden.“  Section 20 of the General Counsel’s draft does not provide for the “bias” penalty enhancement.  However, should the UA decide to add one, it should also contain the caveat that proof of the complainant's and respondent’s characteristics alone is not sufficient to establish the bias penalty enhancement.

Finally, the elements in the definition of harassment in Section 4.10 should not include subjective evaluation of a “hostile environment.”  All elements of each offense should be based upon an objective standard.  If a complainant wishes to raise his status, the hearing panel should wait for the sanction and remedy phase to consider it.  Accordingly, the quoted sentence should be removed from Section 4.10 and relocated as a special case in Section 20.10:

“For a party found responsible for harassment (as defined in Section 4.10), the panel may consider the race, religion, gender, gender expression age, disability or national origin (etc) of the complainant in setting sanctions and remedies.  However, the complainant must prove that respondent’s acts were motivated in large part by his belief that the complainant had those characteristics for this to be relevant to the proceeding.” 

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Aspirational tone my ass

"your plain english" changes removes cross-examination & right to a public hearing, lowers burden of proof, and removes participation of independent counselors. Winnie the Pooh is applauding your efforts of making your procedures more "efficient". Also love the spin with the summary above. 

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The proposed changes will disadvantage students not benefit them

These changes will fundamentally alter student rights if you are ever accused of violating the Code of Conduct.

The rights we will lose:

1. Cross-examination (in almost all circumstances)
2. Right to a public hearing
3. The "clear and convincing evidence" burden of proof
4. Participation of independent counselors

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