Cornell President Responds to Student Assembly Resolution Limiting Freedom of Association

Cornell University President David J. Skorton issued a response yesterday afternoon to a Student Assembly (SA) resolution, narrowly passed in February, that seeks to limit the ability of student groups to require that their voting members and leaders actually share the group's core beliefs. He has asked the SA to reconsider important parts of the resolution.

Resolution 44, which requires President Skorton's approval before enactment, states that student groups

As FIRE noted in our March 3 letter to President Skorton, this requirement is deeply problematic for freedom of association at Cornell:

Our letter asked Skorton to once again stand up for the right of freedom of association, as he did when faced with a similar resolution in 2009. At that time, Skorton asked that a footnote protecting "free speech, freedom of association and religious freedom" be inserted into a resolution passed by the Student Assembly. While FIRE believes this footnote, standing alone, would provide insufficient protection for these crucial rights, we nevertheless were cheered by Skorton's recognition of the deep problems inherent in denying belief-based organizations the right to make belief-based choices about voting membership and leadership.

So, it was with great interest that we read President Skorton's response to Resolution 44, sent to the SA yesterday and available in full here. In sum, he halves the proverbial baby by accepting some of the Resolution while rejecting other aspects of it and its implications.

With regard to Resolution 44's attempt to add new categories to Cornell's existing non-discrimination policy, President Skorton writes:

Cornell’s current policy dealing with non-discrimination is broad and effective: it bans all forms of legally prohibited discrimination in all University educational programs and activities and employment. This non-discrimination policy was adopted by the highest body of the University, the Cornell Board of Trustees, and has university-wide application in all policy related documents and agreements. The current policy prominently appears in university catalogues, brochures, handbooks, other policy documents, contracts and agreements. And several university offices make it their business to enforce the policy including the Offices of Workforce Diversity and Inclusion, University Counsel, Human Resources, and Student and Academic Services.

Since the Trustees-approved policy already encompasses all categories of “legally prohibited” discrimination, it is not clear to me (and presumably would not be clear to the Board) why the SA wishes to add several other categories of non-discrimination. The University is not empowered to formulate public policy; and should not add prohibitions that exceed those adopted by authorized federal, state, and local bodies.

The SA’s proposal to expand the categories of non-discrimination in the IO agreement — by adding “height,” “ancestry,” “immigration status,” “religious practice,” “socioeconomic status,” and “weight” — extends well beyond the Trustees-approved policy. So, I do not accept this aspect of the SA resolution, and consequently I ask the SA to reconsider it. [Note omitted.]

Next, Skorton proclaims Cornell an entirely private university (though this may not be the case), free to do as it will, but choosing to rely on constitutional jurisprudence to formulate its policies on expression and association:

May Cornell as an institution make these policy judgments without legal constraint? Yes, it may. Should the University adopt these consequential changes in how it deals with independent student organizations, particularly “religious” organizations, as the SA advocates? Yes, in some key respects I believe the SA’s recommended revisions should be accepted. But I also ask that the SA reconsider other aspects, in order to address conceivably competing policy interests between the University (and its Student Assembly) and student religious organizations.

The issues the SA resolution raises are complex; more so than they should be since it seems unassailable that all organizations, secular and sectarian, should readily embrace broad principles of non-discrimination. But when constitutional rights are perceived to pertain the stakes from all sides tend to take on different dimensions.

It is important, however, to understand that “constitutional” considerations do not control how the policy issues raised by the SA proposal should be resolved. As Cornell University Counsel James Mingle advises, the U.S. Constitution constrains governments (at the federal, state, and local levels) regarding certain governmental actions that affect individuals and entities. Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations. However, many private universities, including Cornell, typically have chosen to do so as a matter of policy.

When considering the basis and boundaries of such rights, private universities typically look to clearly established constitutional law (as developed by the courts) for guidance. And when determining how such constitutionally recognized rights as freedoms of speech, press, association, and religion should inform and/or be incorporated into university policy documents, private universities (including Cornell) are cognizant, as they should be, of their own First Amendment right as a private university of academic autonomy to determine appropriate educational policy.

Skorton finally turns to the crucial issue, the Resolution's attempt to require student organizations to accept voting members and leaders who do not agree with a given group's core beliefs:
 

Taking these critical considerations into account here, there is a conflict, as the SA acknowledges, between the non-discrimination provision regarding sexual orientation on the one hand, and the leadership practices of some student religious organizations which proclaim that homosexual conduct is inimical to the group’s genuinely held religious beliefs. This position may strike many of us as outdated, indeed offensive; but First Amendment principles protect even offensive speech and, within certain limits, recognize the right of private associations to tailor their membership and leadership practices. The University’s task is to take measure of the institutional and individual interests that are implicated by SA Resolution #44, and to decide how Cornell in its discretion should determine educational policy governing its relationship with and funding of independent student organizations.

Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university’s non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group’s legally recognized prerogative to engage in “religious discrimination” in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.

With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.

For followers of FIRE's work generally, and our ongoing dialogue with Cornell specifically, this is a fascinating letter, one demanding further comment. We will provide that here in coming days.