Posted: December 1, 2020
Sponsor: Committee on Academic Freedom and Professional Status of the Faculty
Background
This Faculty Statement on Academic Freedom and Responsibility was adopted by the University Faculty on May 11, 1960:
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.
While this statement is fine in itself, times have changed and there a need to reaffirm our commitment to these values with greater detail.
The Resolution
Whereas Cornell University is totally committed to the principle of academic freedom, freedom of speech, and freedom of expression;
Be it resolved that the Faculty Senate supports this revision of the 1960 statement.
While I was searching for the 1960 version of the academic freedom statement, I came up with something else, a statement that seems to be from April 2017:
https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/3/6798/files/2017/04/Statement-on-Academic-Freedom-18quh2e.pdf .
There is no date or identification on this document, though. As the web address is similar to that on the recent revision that we’ve been discussing i.e.
https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/3/6798/files/2020/12/PROPOSED-CU-Statement-on-Academic-Freedom-and-Free-Speech-and-Expression-12.01.20.pdf
I’m wondering if you know what it is. There’s some good stuff in the April 2017 document; it seems a shame to lose it or to keep doing it over and over.
From Risa Lieberwitz, ILR School, Faculty Senator
Sorry about the typo in one of my points just posted before this one.
The first point in my comments should read:
1. This first point is more of a “tweaking” of the language (not based on a comment from the Dec. 16 meeting) In Amendment #1, it may be better to change the word “following” to “this”: “Cornell University will abide by the principles and standards of academic freedom and freedom of speech and expression as set forth in this Statement and in other Cornell policies.”
[Please see my other two points in my comments posted earlier today.]
From Risa Lieberwitz, ILR School, Faculty Senator
At the December 16th Faculty Senate meeting, there was a productive discussion about the proposed amendments. I am posting about the points in the discussion about the amendments that I found particularly important:
1. This first point is more of a “tweaking” of the language (not based on comments at the Senate meeting). In Amendment #1, it may be better to change the word “following” to “this”: “Cornell University will abide by the principles and standards of academic freedom and freedom and speech and expression as set forth in this Statement and in other Cornell policies.”
2. In the “chat” comments from the December 16th Senate meeting, several faculty members raised the question of whether the Statement makes clear that the scope of academic freedom and freedom of speech includes invited speakers or guests. One way to address this could be to add language to Amendment #3 to state: “The Cornell community, including the University Assembly and other elected governance bodies, have a responsibility for protecting academic freedom and freedom of speech of faculty, students, staff, and invited speakers and guests.”
3. In the “chat” comments from the December 16th Senate meeting, a faculty member suggested leaving in the word “discrimination” in one of the sentences in Amendment #4. I think this is a good point. The phrasing would now read: “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 and protected status harassment under Cornell policies and procedures, and also meets one or both of the following criteria:”
Today’s discussion in the senate revealed some concerns at the intersection of freedom of speech, broadly interpreted, and the more specific academic freedom. The current authoritarian environment tends to pit freedom against expertise. If we elide the difference between academic freedom and freedom of speech, we make ourselves vulnerable to an authoritarian delegitimization of faculty expertise.
So, I’d move or omit the 2nd paragraph that introduces the “core values” statement. Is it necessary to include this “core values” statement? I don’t recall these values statements being endorsed by the faculty senate. The statement quoted in this revision moves from “pursuit of knowledge” to “open inquiry & expression” to “ideas some may consider wrong or offensive.” It doesn’t say what the “pursuit of knowledge” is; it rather suggests a dichotomy: someone’s openness versus someone else’s thin skin. Such reductive presentations of this issue are not useful and they invite problems.
If the 2nd paragraph instead begins, “The University endorses the Faculty Statement on Academic Freedom and Responsibility adopted
by the University Faculty on May 11, 1960…” which is currently after the core values paragraph, it first clarifies academic freedom. Then it can go on to define freedom of expression.
In the paragraph that touches on discrimination and harassment, is it really necessary to mention academic freedom? Without the phrase “academic freedom,” the paragraph would read as follows. And it might be shorter, also, as it no longer is trying to do everything– defining harassment and harmful speech in the context of protecting academic freedom:
“The University is committed …. to creating a learning, living, and working environment free of discrimination, harassment, and sexual and related misconduct. …. Speech and other forms of 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….” [end.]
Charles Van Loan
Dean of the University Faculty
315 Day Hall
Cornell University
Ithaca, NY 14853
Re: Cornell Statement on Academic Freedom and Freedom of Speech and Expression
Dear Dean Van Loan:
On December 1, 2020, the Faculty Senate posted for public comment a proposed “Cornell Statement on Academic Freedom and Freedom of Speech and Expression.” This statement is intended to replace detailed provisions addressing these topics found in the current Campus Code of Conduct. The undersigned alumni generally support the document but make these suggestions to strengthen it:
1. Applicability to students and non-academic employees
The current Campus Code of Conduct as well as the Statement of Core Values address the freedom of speech that protects students and non-academic employees as well as members of the Faculty. It is important that Cornell continue to protect students and non-academic staff as they speak out on issues of the day as well as explore controversial ideas in the classroom, publish their views, invite speakers to campus, or participate in shared university governance.
The document should emphasize this by adding text at the end of the introduction, just before the heading “Responsibilities” to clarify that although quotes are from the 1940 AAUP statement, this document and the described freedoms apply to the entire Cornell community: faculty, students and non-academic employees.
2. Primacy of This Document Over the Student Code
The current Campus Code of Conduct has many references to free speech. Because both the free speech and academic freedom protection as well as the violation specifications are integrated into a single document. So, there is no doubt that the free speech provisions are a limitation on the violation specifications. The Judicial Administrator and the hearing panels must read the current Campus Code as a whole and respect free speech considerations while they enforce discipline on campus.
Going forward, Cornell is splitting the document into two separate ones, and the temptation will be to read free speech concerns out of the Student Code and its enforcement. To prevent this confusion, this document should contain express provisions that if there is any conflict between the Student Code and this document, this document prevails. For example, Student Code Section 4.21 makes “any federal, state, or local law, regulation, or ordinance” applicable to student conduct, even if it were to infringe upon academic freedom or free speech rights. A statement making this document primary would ensure that Cornell judicial system would not apply Section 4.21 or any other provision in a manner to limit free speech.
3. Definition of Harassment
The current draft at footnote 4 recognizes that an overbroad definition of “harassment” can infringe upon free expression rights. The U.S. Supreme Court addressed this in Davis v. Monroe County Board of Education, and the Department of Education’s final rule amended the definition of harassment for Title IX purposes. The harassment must be “severe, pervasive, and objectively offensive” (emphasis added) to avoid free speech concerns. Given that Cornell has not adopted a “hate speech” Code and hence the scope of free speech is to be applied in a content-neutral manner, it is important for this policy to frame harassment in a careful manner that does not chill the exercise of free speech. If we are to maintain a campus with a vibrant exchange of ideas, the document should define harassment with care and make the definition equally applicable to faculty, staff and students. Any process that seeks to discipline students, faculty, or staff for alleged harassment must factor in the academic freedom and free speech rights of Cornellians.
Please make this letter a part of your decisional record, and we thank the faculty for undertaking this important task.
Respectfully submitted,
James Branegan ‘72
Mark Clemente ‘73
Rose Gutfeld, ‘78
Michael Furman ’79, President, Delta Chi Association
Richard B. Hoffman ’67
John Horvatis ‘99, Delta Phi
Mark Kamon ’75, Past President CDUA
R. Alexander Latella ’10 Alumni Treasurer, Cornell Delta Phi Association
Jeffrey N. Mausner Law ‘76¬
Robert C. Platt, ’73 Law ‘76
Howie Schaffer ’90 Alumni President, Alpha Delta Phi at Cornell University
Charles J. Sennet ‘74
Len Shapiro ’74 TDX BETA
Rob Shuck ’87, President, Chi Phi Chapter House Assoc
David Stuhlmiller ’92, Cornell Tradition Fellow; President,
Beta Chapter of the Kappa Delta Rho Fraternity of Cornell, Inc.
Richard M. Warshauer, ‘71
My comment pertains to the penultimate paragraph, regarding academic freedom and harassment. Like some of the comments above, I recommend defining hostile environment harassment and related behaviors narrowly, so as to maximally protect freedom of expression and academic freedom. In addition to the two criteria set forth at the end of the paragraph, I recommend that conduct be required to meet the threshold of severe, pervasive, and objectively offensive conduct. These elements, which I am importing from Title IX case law as well as the federal Title IX regulations from August 2020, appropriately define hostile environment harassment such that policy makers and decision makers at the campus level would have proper guidance in enforcing policy evenly.
Secondly, to the extent this paragraph references other Cornell policy, I recommend that the university ensure that its policies elsewhere appropriately define harassment. For instance, the recently proposed changes to the student code of conduct encompass “offensive conduct that does not by itself amount to harassment.” I recommend that Cornell narrow this definition, pursuant to applicable case law, as it continues to review and revise the student code of conduct.
The Foundation for Individual Rights in Education (FIRE, where I work) regularly works with universities across the country to craft their speech-related policies, including harassment policies like these ones. We would be pleased to do the same with Cornell.
By Risa Lieberwitz, ILR School, Faculty Senator
I suggest that the Senate consider the following amendments (noted in brackets) adding a sentence to the end of the first paragraph of the proposed Statement on Academic Freedom and Freedom of Speech and Expression:
“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. [Cornell University will abide by the principles and standards of academic freedom and freedom of speech and expression as set forth in the following Statement and in other Cornell policies.]”
a minor point: in the bracketed addition above why use the future tense? Instead of “Cornell U *will* abide” how about just “Cornell U *abides* by the principles…” etc., as a present and ongoing constant?
From Risa Lieberwitz, ILR School, Faculty Senator
I suggest that the Senate consider the following amendments (noted in brackets) to the following paragraph, which is part of the “Responsibilities” section of the proposed Statement on Academic Freedom and Freedom of Speech and Expression:
“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. Though the necessity is rare, the University has long affirmed the President’s authority and duty to protect the community and maintain public order where imminent threats to health and safety require it. However, any intervention by the President or the President’s designee in campus rights of expression and assembly shall be reported [promptly] to the [Cornell] community, [including the elected campus governance bodies,] with an explanation of the bases for the actions taken [and the plan for restoring full rights of expression and assembly as expeditiously as possible.]”
By Risa Lieberwitz, ILR School, Faculty Senator
My comment addresses issues raised by the prior two commenters about the paragraph in the proposed Statement concerning academic freedom and definitions of harassment.
I suggest that the Senate consider the following amendments to the paragraph concerning academic freedom and harassment, as follows (note: amendments are in brackets):
“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 [protected status harassment] under Cornell [policies and procedures] 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.:”
Rationale for the suggested amendment:
This paragraph in the proposed Statement on Academic Freedom and Freedom of Speech and Expression is based on Cornell’s Policy 6.4 and Procedures (with a link to them in a footnote of the proposed Statement). Cornell’s Policy 6.4 and Procedures cover ‘protected status” harassment, which is broader than sexual harassment (and includes racial, national origin and other forms of protected-status harassment). Thus, Cornell’s Policy 6.4 and Procedures include Title IX-related harassment and non-Title-related harassment and discrimination. These policies and procedures also include provisions limiting the scope of harassment definitions based on the need to protect academic freedom. The provisions related to academic freedom define harassment in terms of speech “targeting” individuals rather than speech that more generally affects groups.
Protecting academic freedom is essential to avoid overly broad definitions of harassment as related to teaching, research, and extramural speech. The protection of academic freedom also depends on having strong due process provided through full and fair hearings by faculty peers.
My comments pertain to the potential consequences of the following paragraph:
“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. [with ref to Title IX]”
I have two concerns here, inspired by real-life cases (that occurred in 2018-19 in other schools, resp. Brown and the New School) and, more generally, by recent attempts, all over the globe, to bind academic freedom to the duty of “being respectful to the diverse identities of others” (to quote the wording that was rejected last month by the Council of Cambridge University in the UK; an amendment replaced “respectful” with “tolerant”).
1. “Specific person or persons:” What we have seen recently is that many individuals routinely claim they are individually harmed by general statements that are at odds with what they believe to be the principle of their own identity. How do we make sure we avoid a confusion between specific attacks toward one, or several, person(s), and controversial but generic statements that could be presented by others as targeting them de facto?
Case 1. A clinical psychologist is conducting research and teaching a class devoted to the psychological context of gender reassignment. By comparing the profile of individuals over the course of several decades, she sees a distinct and recent rise (in the US) of such demands, due to female teenagers who previously never expressed any unease with their assigned gender but ask for a transition as they face puberty. The professor claims this contrasts with the usual profile of transgender people and posits that “some cases of gender dysphoria may be ‘socially contagious.’” A transgender student objects to the reasoning, they ask for the psychologist to withdraw her article and to stop teaching this material, which the scientist refuses to do in the name of academic freedom. The professor is not seeking to limit the rights of transgender people, and she has no qualms with this specific person but she feels she has to provide an explanation for the current situation.
2. “The definition of discrimination, harassment, and sexual and related misconduct under Cornell policy.” I understand the requirements coming from federal law through Title IX (and the relation to policy 6.4). It seems to me, however, that the text makes a distinction between (on one hand) “discrimination, harassment” in general and (on the other hand) “sexual and related misconduct.” Then, I believe the dispositions could be alleged to cover non-Title IX types of discrimination (based on race, religion, or even political affiliation, citizenship, and so on), all the more so given that “diversity and inclusion are part of Cornell’s University heritage.” It would seem rather logical to me to argue that racial and sexual discriminations are equally wrong. But then, let’s take a look at the following case.
Case 2. A literature professor is teaching “I Am not your Negro,” the documentary movie Raoul Peck devoted to the Black writer James Baldwin. She draws the attention of her students to the fact that the title is a corrected version of a quote by Baldwin. She interrogates a situation where the apparent celebration of a Black intellectual and writer consists in rectifying his very words and attenuating the original term into “Negro.” The professor reads the actual quote aloud. Some students immediately object to this: she is white and she cannot pronounce a “racial slur.” She responds that Baldwin used the term intentionally, was not naive, knew this would be read by white people (“your” is clear enough), and that not pronouncing the words is in fact censoring the writer’s intentions. Of course, she does not condone the use of racial slurs in general and does not address her students of color in using such terms. But she considers that altering the words of a Black writer is, in itself, an act of racism. Nevertheless, a student of color claims she felt threatened, harassed, and discriminated by the professor’s language and argues that a white professor uttering the “N-word” without euphemizing it in class goes beyond the limits of academic freedom and therefore practices not “free speech” but “hate speech.”
If we have addressed the concern raised in my point 1 (specific individual vs. specific identity), we may have taken care of the situation pertaining to this second example. What remains, however, is the dual issue of “discrimination” in general and of its potential relation to what limits academic freedom.
Three suggestions/comments:
The framers may want to consider inserting Cornell community on page 2, second paragraph under responsibilities just to distinguish from the broader Ithaca community:
President’s designee in campus rights of expression and assembly shall be reported in a timely fashion to the CORNELL community, with an explanation of the bases for the actions taken.
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Regarding this text on page 2:
…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.
Are the latter two specified in the policy on sexual harassment or is this additive. In this day and age, I am concerned about the reasonable objection of the person or persons targeted by the speech. If already in and only applicable to the sexual harassment policy then I am good. However, if this is more generic, it should be considered that even in the normal course of business with the polarization of politics, such as it is now, that regular speech on policies or politics may cause individuals to feel they are being targeted and they may think they are “reasonably” objecting to that speech. Just something to consider or clarify.
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Regarding the last sentence on page 2, perhaps instead of “strongly encouraged,” it should be stated that the University must be informed of gatherings and can be consulted on logistics etc but I agree fully that they should not have to seek permission.