After months of deliberation, the University Assembly passed a resolution this October to remove a clause from the Campus Code of Conduct designed to prevent special-interest student organizations from discriminating against certain groups in their criteria for membership. The resolution cited the need for more extensive debate on “the interplay of discrimination, freedom of speech, freedom of religion and freedom of assembly” on campus.
The initial decision to include discrimination in the campus code was sparked by controversy last April when the Chi Alpha Christian Fellowship (XA) asked Chris Donohoe ’09 to step down from a leadership position after he openly embraced his homosexuality.
The Student Assembly Finance Commission temporarily froze funding to the group after the incident to allow the UA to inquire into whether or not the group’s actions violated University policy. At the moment Chi Alpha’s actions were not prohibited and funding was restored, but the Codes and Judicial Committee of the U.A. proposed the anti-discrimination clause to allow reciprocal action in future incidents.
When President Skorton reviewed the amended campus code for approval for last semester, he requested that a footnote protecting “free speech, freedom of association and religious freedom” be added to the anti-discrimination clause.
According to John Cetta ’10, who interned at the Foundation for Individual Rights in Education this past summer and is currently the UA’s student liaison to the CJC, Skorton’s footnote is a step in the right direction but does not offer enough protection for students’ rights.
The clause was ultimately removed because of these concerns, allowing the rest of the amendments made last semester to be passed without objection. The CJC has not yet made a decision whether to replace the axed clause.
The anti-discrimination clause was not the only alleged problem in Cornell’s campus code.
On May 12, 2009, FIRE sent a letter to Skorton criticizing the University’s response to the Chi Alpha incident and its policies on harassment, demanding a reevaluation of the student code. Six months later the topic is still under discussion.
“FIRE is concerned about the threat to freedom of religion, expressive association, and legal equality posed by the decision of Cornell University’s Student Assembly Finance Commission to investigate and punish a religious student organization for requiring that its leaders adhere to the organization’s sincerely held religious beliefs,” Adam Kissel, Director of FIRE’s Individual Rights Defense Program stated.
The letter continued: “An expressive organization, whether it is religious, political or something else, must be allowed to limit its leadership to people who share the group’s beliefs.”
FIRE requested that Cornell “immediately correct this ongoing injustice” and make greater attempts to protect students’ rights to freedom of religion and association. The University responded on August 5, 2009 — over two months after the date by which FIRE requested a reply — that Skorton had asked the U.A. to review this matter and that final action was not anticipated until this fall.
According to Danielle D’Ambrosio ’10, who was president of XA at the time, the organization was bound by its national organization and its sponsoring denomination “to uphold the ideals stated by the Assembly of God.”
“XA cannot ... allow someone to be an official leader, teacher and representative if that individual’s beliefs and actions are in direct disagreement with XA’s official position,” D’Ambrosio stated in an email.
The anti-discrimination clause in question, according to D’Ambrosio, was not sufficiently clear to fulfill its intended purpose.
“It still leaves room for a range of definitions of ‘discriminate’,” D’Ambrosio stated. “Do we want groups to be allowed to prevent someone from joining based on their sexual orientation? Absolutely not. Do we want groups to be allowed to prevent someone from being on their leadership based on their agreement or disagreement with the goals and beliefs of the group? Absolutely yes.”
“You must differentiate between leadership and membership,” Reverend Kenneth Clarke Sr. of Cornell United Religious Works said. “Based on constitutionally-protected convictions, a religious organization can make selections on who their leadership should be.”
Charles Haynes of the First Amendment Center, who spoke at Cornell in September, agrees with Clarke and with FIRE’s stance.
“Student groups should have a right to protect their membership and [to choose] their officers,” Haynes said. “Otherwise the University is saying that the group can’t really exist. They are discriminating against groups that need to have a particular identity.”
According to Donohoe, the XA incident last April was certainly an issue of discrimination in general, but not specifically against XA.
“This isn’t an issue of freedom of expression or religious freedom, this is about discriminatory action taken against a person because of his sexual orientation,” Donohoe said.
“On this issue, we saw people who seemed to imply that the opposing side did not have the right to their opinions, which certainly contradicts the idea of free speech.” D’Ambrosio stated.
Blanca Hernandez ’10, a close friend of Donohoe’s, believed that suspending funding for XA did not infringe upon the organization’s rights.
“Unless one’s free speech causes direct physical harm to another, it should never be silenced or limited,” Hernandez stated in an email. “This right is legally guaranteed and should be extended into every public and private institution — especially at a university. ... Removing one source of an organization’s funding does not silence its free speech.”
Hernandez argued that XA, as a recipient of Cornell funding, was sponsored at least in part by her own tuition.
“If an organization is at all funded by the SAFC or any other institution that mandatorily takes money from each member of the student body, the organization should be prohibited from discriminating against any suspect classification,” Hernandez stated. “If an organization chooses to find other sources of funding, however, it must be allowed to exist and remain affiliated with Cornell University, no matter how racist, sexist or homophobic its beliefs may be. Offense is not enough to combat the benefits of free speech, especially at a place where the legitimacy of knowledge depends on the exposure of a full range of varied beliefs.”
According to Donohoe, the University should have done more to respond to XA’s action against him.
“Taking a stance against discrimination is always the right course of action and that’s not what Cornell has done,” Donohoe said.
Despite debate over the constitutionality of including an anti-discrimination clause in the campus code of conduct, Hernandez thinks it would help ameliorate conflict and promote tolerance in the future.
“It is a farce to expect that an anti-discrimination clause will result in a colorblind and gender-neutral campus,” Hernandez stated. “What the clause will do, however, is force an organization to provide reasoning for rejecting a member that extends beyond ‘he has a boyfriend.’ No clause can forcibly instill tolerance – but Cornell should do all it can to protect those that provide it with the Diversity it prides itself on. “
Andrew Brokman ’11, student representative to the U.A., agreed that some version of anti-discrimination policy would be beneficial to the University.
“Unfortunately, our campus code, while including a lot of confusing clauses about harassment, doesn’t say anything about discrimination,” Brokman said.
According to Brokman, Cornell’s code should be linked to other policies, like Open Hearts, Open Minds, that incorporate action against discrimination.
“Our campus code is written in such a way that a nuanced policy is really difficult to put in with the rest of what’s written,” Brokman said.
As the University faces criticism for its stance, or lack thereof, on discrimination, its adherence to the ethos of free speech is brought into question.
Cornell’s campus code of conduct states: “Because it is a special kind of community, whose purpose is the discovery of truth through the practice of free inquiry, a university has an essential dependence on a commitment to the values of unintimidated speech. To curb speech on the grounds that an invited speaker is noxious, that a cause is evil, or that such ideas will offend some listeners is therefore inconsistent with a university’s purpose.”
Certain policies within the student code, however, seem inconsistent with this statement of purpose.
FIRE gives Cornell’s student codes a red light rating, meaning that at least one policy "clearly and substantially” limits freedom of speech. The University’s harassment codes, specifically, were cited as overly broad and vague.
Gene Policinski, vice president and executive director of the First Amendment Center, agreed.
“So often the codes want to be restricting speech — you can’t say this, you can’t say that,” Policinski said. “We have to accept as a society that some people will say those things if for no other reason than to acknowledge that those views exist.”
According to Policinski, universities exist to expose students to controversial viewpoints and encourage dialogue.
“At times I would hope to see policies that encourage more speech — that invite people to react — particularly in today’s world where you can have an online presence as well,” he said.
Will Creeley, Director of Legal and Public Advocacy of FIRE who spoke at Cornell this September, also believes in student expression and free speech as an integral part of an undergraduate education.
“I think that every student should demand a modern liberal education, which means being exposed to viewpoints with which one might not be comfortable,” Creeley said. “When students are exposed to a wide range of ideas, their ability to counter in an argument those ideas with which they disagree will be stronger and they will learn more.”
University policies that attempt to limit speech often end up doing more harm than good, according to Charles Haynes.
“Practically speaking, to try to put a lid on speech that might be offensive or to create a social environment where people don’t tell certain kinds of jokes to one another or say things that are offensive to one another, that backfires, in my experience,” Haynes said. “It only sends that kind of speech underground. It makes people resentful. It creates a backlash. Even if one believed in trying to clean up speech, I don’t think it works on campus,”
According to Policinski, the best way to counter offensive speech is to recognize its presence, not to restrict it.
“Frankly you’re never going to stop hate speech. At most you’re going to drive it underground, where it may be more dangerous,” Policinski said.