Cornell falls short with new expression policy and guidance on faculty political speech

Cornell University talks a big game on free expression.

It named freedom of expression the theme of its 2023-24 academic year. Its president, Martha Pollack, has repeatedly affirmed Cornell’s commitment to free speech and academic freedom. And, despite being a private university not bound by the First Amendment, the university’s core values and policies reflect a dedication to its underlying principles. When students and faculty arrive on campus, they can reasonably expect their rights to free speech, academic freedom, and open inquiry to be protected by the administration. 

‘Building knowledge and inspiring discussion’: Cornell stands up for free speech, announces university-wide free expression initiative

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Cornell President Martha E. Pollack announced this week a university-wide initiative to explore the theme of free expression and academic freedom throughout the 2023-24 academic year.

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But actions speak louder than words, and Cornell’s actions continue to fall far short of its lofty promises — most recently with both its guidance for faculty on classroom political speech and its newly issued Interim Expressive Activity Policy. 

FIRE wrote Cornell last week expressing concerns about the faculty guidance’s infringement on academic freedom in the classroom, and about the Interim Expressive Activity Policy’s broad prior restraints on outdoor events and student postings. 

With respect to the former, Cornell’s provost issued guidance to faculty and instructors on Jan. 23 advising them to “avoid the use of the classroom, scheduling, or other academic activities to advance political views.” The directive apparently arose in response to an incident on Jan. 22, the first day of the spring semester, in which a teaching assistant canceled the first session of an English literature seminar “in solidarity with collective calls for a Global Strike for Palestine.” 

A properly tailored response might have been a reminder to faculty of their obligations not to detour too significantly from pedagogically relevant material in class and not to cancel classes for improper reasons. But the directive went much further, targeting a broad array of classroom speech. 

There are, after all, many legitimate pedagogical reasons why professors may discuss or advance political views in the classroom, whether in the context of a philosophical discussion examining various perspectives on an issue, playing devil’s advocate to challenge a student, or teaching courses focused on a single perspective, such as critical studies courses in law schools. As our letter explains: 

A directive to avoid such speech risks chilling faculty’s willingness to engage with students on contentious political issues for fear of reprimand or discipline. Inviting that risk violates not only Cornell’s own current academic freedom policies that protect faculty classroom speech, but also the 1960 Faculty Statement on Academic Freedom and Responsibility that the university endorsed, as well as the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure, both of which recognize faculty’s freedom of expression “in the classroom on matters relevant to the subject and the purpose of the course.” 

Two provisions of the Interim Expressive Activity Policy, issued Jan. 25, are also concerning: its registration requirement for outdoor events and its posting rules. 

First, the policy’s outdoor events provision requires organizers to register at least two days in advance to hold outdoor events of more than 50 people at a large number of locations on Cornell’s 745-acre Ithaca, New York, campus. This eliminates nearly any opportunity for spontaneous demonstrations in response to recent or unfolding events, a fundamental element of student expressive rights. It would affect vigils held in the immediate aftermath of terrorist attacks or natural disasters and protests or rallies responding to breaking news of court decisions, police shootings, or government policy. As Justice Harlan wrote in a 1969 case concerning civil rights activists who were arrested for marching without a permit: “When an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be considered at all.” 

Second, the policy’s posting rules substantially restrict students’ ability to post signs or flyers without first obtaining administrative permission. Specifically, students must obtain approval from administrators before hanging any posters or flyer outdoors. And prior approval is also required for all indoor postings other than in specially designated areas — which the policy inexplicably fails to identify.

Cornell’s posting rules are neither narrowly tailored nor reasonable.

Prior restraints — that is, restrictions on speech before it occurs — like Cornell’s new registration and posting rules, are highly disfavored under long-established law, and courts consider them presumptively invalid due to the significant burden they place on speech. That burden includes procedural hurdles, such as filling out and submitting a form, as well as the waiting period between application and approval. That doesn’t mean a university can never require registration, notifications, or permissions for certain events or postings. But those restraints — to overcome the presumption of invalidity — should be limited to circumstances where the restriction is reasonable, narrowly tailored to address a significant university interest, and leaves open ample alternative channels for communicating with the same audience. 

Cornell’s policy fails to meet these criteria. The breadth of the registration requirement for outdoor events unreasonably limits an excessive amount of student expression and fails to leave open alternative channels by which spontaneous demonstrations can reach the same audience. Moreover, requiring organizers to register all outdoor events of 50 students at the most readily accessible and desirable speaking locations on the university’s main campus is not narrowly tailored to Cornell’s stated purpose of preventing conflicting events and promoting safety. The policy already provides administrators the authority to shut down events due to scheduling conflicts, disruption, or safety concerns. 

As FIRE explained, “Cornell cannot justify its registration scheme by mere speculation that disruption, scheduling conflicts, or safety threats already directly addressed by longstanding policy could occur.” 

Likewise, Cornell’s posting rules are neither narrowly tailored nor reasonable. Its interest in restricting outdoor posting is already addressed by other provisions of the policy that, for example, limit the types of structures on which flyers may be posted, require removal of flyers within two weeks, and prohibit obstructing exit signs, exit doors, or fire safety systems. Further, Cornell’s failure to identify the indoor areas specially designated for student postings hinders students’ ability to comply with the rules. As written, a student wishing to comply with the policy would need to seek out an administrator before posting anywhere on campus — either to provide the necessary approval or to tell the student where posting is allowed. 

Cornell, like many universities, has undoubtedly faced many speech-related challenges in recent months. But its knee-jerk response to those challenges should not be to abdicate its promises to protect student and faculty rights to free speech and academic freedom. 

The free speech principles developed in case law reflect wisdom gained over multiple generations regarding how best to respect the expressive rights of individuals while maintaining public order. If Cornell decides it wants to do more than just talk about the importance of free expression, it may find those principles offer a useful guide for its own policies. 

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).