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Cornell Must Not Repeat the Mistakes of the Interim Expressive Activity Policy

Cornell AAUP chapter president, Risa Lieberwitz, defends in the Cornell Daily Sun academic freedom and free expression on campus from ongoing efforts at their restriction.

This Committee on the Interim Expressive Activity Policy should apply a philosophy that values the broadest protection of academic freedom and freedom of expression as central to the public mission of the University. Academic freedom protects a broad range of teaching, research, extramural speech (on or off campus, concerning issues that may or may not be within faculty disciplinary expertise) and institutional governance-related intramural speech. The Committee should strengthen the Cornell Policy Statement on Academic Freedom and Freedom of Expression, rather than adding restrictions to it.

Without such protection, faculty, student and staff speech is subject to restrictions in the name of civility, order on campus or avoidance of conflict with legislators or other politicians. Without independence of thought and expression, our teaching, research and debate is chilled, watered down and loses the legitimacy that only academic freedom and freedom of speech can provide.

Further, there are serious concerns with both the procedural and substantive aspects of the IEAP.

First, there must be full and meaningful participation by all shared governance bodies in the review and decision-making process of revising the IEAP. According to the Cornell University bylaws, the faculty senate has jurisdiction over questions of educational policy that is general in nature. This would include an Expressive Activity Policy that affects academic freedom and freedom of expression inside and outside the classroom.

Respecting the role of the Faculty Senate will bring faculty expertise and experience into the process and is essential to bring legitimacy to this process. At the March 13, 2024 Faculty Senate meeting, then-Provost Kotlikoff made statements confirming the importance of the Faculty Senate’s role in considering an Expressive Activity Policy, including the Faculty Senate’s vote on any proposed or finalized policy. As recorded in the verbatim minutes of the March 13 Faculty Senate meeting, then-Provost Kotlikoff stated that “the role of the faculty and faculty senate in discussing and voting on this subsequent full policy, finalized policy is fully acknowledged. So, I don’t — I don’t see an issue there.”

Given the crucial role of higher education institutions in a democratic society, great weight must be placed on the interests of faculty and students to engage in free and open speech and debate. The traditional First Amendment “strict scrutiny” test is well suited to recognize these strong interests, whether or not the speech occurs in public or private institutions of higher education. This would require the University administration to prove that it has a compelling interest in restricting speech and that the restriction is the “least drastic” (or narrowest) means possible to further that compelling interest.

Content-neutrality is a minimum requirement for any restrictions on freedom of expression, but is not nearly sufficient for the University to show a compelling interest in imposing a narrowly drawn restriction. Further, speech about controversial issues is inherently disruptive, including in public events such as invited speakers, or in protests or demonstrations. There must be much more than disruption, discomfort or inconvenience to justify restrictions on speech. There should be a heavy burden of proof on the University administration to provide clear and convincing evidence of imminent threats to health or safety.

Two examples illustrate the overly broad nature of the restrictions of the IEAP.

First, the Revised IEAP removed the “expectation” of registration of outdoor public events after faculty and students raised widespread objections about the chilling effect on speech and the surveillance mechanism created by requiring registration. However, the Revised IEAP continues to overly privilege registered outdoor events in ways that restrict expression, stating, “By choosing to register, organizers enable the university to…reduce the potential for unintended conflict with other scheduled activities.” However, the existence of a registered event is not a compelling basis for restricting speech, nor is prohibition of a protest at the same time as the registered event the narrowest means for achieving any interests of the administration. As the former Campus Code of Conduct provided, “The presence of a counter-protest does not itself constitute a disruption to a University function or authorized event. Moreover, those who oppose a speaker may thus make their views known.”

Another example of overly broad restrictions is the blanket prohibition of “heckling” speakers. This imposes a form of “civility” that broadly excludes speech that may be annoying or cause discomfort, but which does not automatically silence the speaker or prevent other audience members from hearing the speaker. There may be a point where heckling progresses to silencing a speaker, at which point there would likely be a basis for restricting it. However, protecting speech requires a more nuanced approach than a blanket prohibition on heckling.

Another substantive concern relates to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance. The Cornell administration’s use of Title VI as a justification for the IEAP, however, is misleading, as academic freedom and freedom of expression are protected by Title VI, Title IX, and Cornell Policy 6.4. Speech at protests or in a classroom that a listener finds offensive does not, in itself, constitute hostile environment harassment. The US Department of Education states that it “interprets Title VI and its implementing regulations consistent with free speech and other rights protected under the First Amendment to the U.S. Constitution. Nothing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment. Neither Title VI nor its implementing regulations require schools to enact or enforce codes that punish the exercise of such rights.” Further, Cornell’s policy limits the definition of “harassment” based on “protections afforded by principles of free speech and academic freedom.”

Any Cornell policies restricting speech must be enforced only with full due process protections. This past year there have been instances of selective enforcement, misuse of Cornell policies on temporary suspensions and ad hoc processes used to target faculty for their speech. The lack of due process is unfair, causes significant harm to individuals subject to punitive measures without fair and reliable procedures, creates a chilling effect on students, faculty and staff, and undermines the legitimacy of University policies and their enforcement.

Cornell acted hastily in its unilateral imposition of the IEAP. It is now up to this Committee to ensure that academic freedom, freedom of expression, due process and shared governance are respected in revising, reviewing and voting on any Expressive Activity Policy and any accompanying enforcement and sanctions measures.

Risa L. Lieberwitz is a Professor of Labor and Employment Law in the School of Industrial and Labor Relations. She researches academic freedom in the university, freedom of speech, due process and the “corporatization” of the university. She is the President of the Cornell University Chapter of the American Association of University Professors. She can be reached at rll5@cornell.edu.

Congratulations UAW!

What it is to break a strike

(This is a piece in the Cornell Daily Sun written by Cornell AAUP Chapter vice president David Bateman. It is not a chapter statement.)

BATEMAN | What It Is to Break a Strike

Members of the Cornell community — custodians, groundskeepers, cooks, food service workers, greenhouse employees, gardeners, mechanics and others — are on strike. As the administration has acknowledged, the work these employees do is absolutely essential to the basic operation of the University. None of us can work, learn, research or teach in their absence.

Naturally, the strike has placed enormous stress on the institution. Basic work can’t be done.

And so the University leadership has asked us all to “step up” and pitch in, with emails from central administration, many colleges and other units giving guidelines on how all of us — students, faculty, staff, etc. — can do “our part.” To take extra responsibility to keep facilities clean. To volunteer for additional shifts. To serve food to students in dining halls. Retirees have been invited to fill in for former colleagues. The University leadership wants us to think of this as a noble, community effort to ensure that our students are fed, our facilities are clean and that Cornell continues to function despite the absence of its essential workers.

No doubt some of us have an inherent impulse to “step up” and do our part. This is natural, and the desire to help is a good one. We probably all believe that we should contribute when there is a crisis. And we hold in some contempt those who refuse to do so, who treat additional work produced by a crisis as someone else’s responsibility.

A labor strike, however, is one of those vital moments where a deeper logic is revealed. Strikes reveal the moral inadequacy of “community” as a guiding principle, how “stepping up” and “chipping in” can in fact be a cover for immoral actions.

A labor strike is not equivalent to a natural disaster or a crisis outside of our making. A strike reveals a profound conflict within our community, in this case one that is the result of the University’s own policies and choices. These include Cornell’s consistent refusal to recognize or pay for the considerable costs associated with its successes — a cost-of-living crisis in Ithaca and surrounding communities — and its desire to keep in its control as much of the value produced by its workforce as it can.

The workers represented by UAW 2300 have voted, democratically and overwhelmingly, to collectively withhold their labor until this conflict is resolved on terms that allow them to live and thrive.

The capacity to collectively withhold labor is the only real source of power workers have. In this context, “stepping up” or “doing our part” in the way that the University would like takes on a very different meaning. The workers have chosen to withhold their labor. The University would like us to replace it. This is not chipping in – it is choosing a side. When we replace striking labor, whether in their jobs or the work that they would be doing, we attack and undermine our friends and colleagues in their collective decisions and struggle. To “step up” in this context means taking the side of their employer, who wields enormous power over their lives and the lives of many others.

This is what it means to break a strike. This is what it means to scab.Subscribe to our daily newsletter!

“Community” can be a vague, empty term. We only imbue it with meaning through our actions. The University leadership has shown us its vision of “community.” It has shown this vision of community in its persistent refusal to recognize the value of its workers and the costs it imposes on Ithaca and neighboring communities. It has shown this vision of community in its misleading communications, wrongly implying that members of the Cornell community are outside employees of the UAW. It has shown this vision in spending what must be, after successive campaigns, millions of dollars to strike-breaking and union-busting firms, in order to undermine the democratic decisions of its employees. And it has shown this vision of community in its requests to employees to replace the work of their friends and colleagues.

The University appeals to our better natures, to our commitment to community, to conceal their real ask: to betray these friends and colleagues, at the moment when they are most in need of our support.

The Cornell leadership of the UAW 2300 chapter, by contrast, has shown a richer vision of what community needs and what it can be. They too appeal to our desire to help out, to step up. They have asked for solidarity, rather than to undermine each other. To not replace striking labor or the work that they do. To show up on the picket line. To voice support. To demand that Cornell sign a fair contract. They have asked us to take the side of those members of our community fighting for a better life. They have asked us to stand with them.

And in so doing, they are teaching us that real community can only be forged by a honest appraisal of injustice and unfairness, by a real understanding of the power that a few employers and institutional leaders hold over everyone else, and by a real commitment to challenging it.

David A. Bateman is an Associate Professor in the Department of Government. His research focuses broadly on democratic institutions; he is an expert in the American legislative branch. He can be reached at dab465@cornell.edu.

AAUP Chapter Statement on Bargaining between Cornell administration and UAW Local 2300

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August 14, 2024

The Cornell University Chapter of the American Association of University Professors stands in solidarity with UAW Local 2300 and its fight to improve wages and working conditions for essential University workers. Our AAUP chapter, the union for tenure-track and non-tenure-track faculty, adjuncts, librarians, postdocs, and academic staff, urges the administration to agree to a fair contract in line with the workers’ demands. These include a pay increase to fairly compensate Cornell employees for their work, which is essential to running the University; bring wages in line with the cost of living; annual cost of living adjustments so that wage increases do not fall behind the cost of living; and greater allowances for parking and clothing to reduce costs and risks borne by the workers themselves.

Over the last several years, working conditions at Cornell have declined considerably, in line with the University’s broader failure to adequately compensate workers and to pay a fair share to the surrounding communities. Like any corporation, the University’s value is produced by its workers, and its operations generate burdens and costs for the community. For years now, University leadership has shifted costs onto workers through inadequate wages and benefits, just as it has chosen to shift costs onto Ithaca and neighboring communities by refusing to pay its fair share for public services.

Cornell creates employment opportunities in Ithaca and the surrounding region. At the same time, it has made living here increasingly unaffordable. This stems not only from its success in attracting workers and students to the region, but also from its refusal to pay its fair share to the city of Ithaca and neighboring communities through local property taxes or adequate payments in lieu of taxes. Cornell doesn’t pay, so everyone else has to pay more.

As the cost of living increases, Cornell refuses to pay its workers a living wage, let alone a thriving wage. The MIT living wage calculator puts the living wage at $24.64 for a single person with no dependents and higher numbers for other household circumstances: $30.82 for two working parents with two children and $56.85 for a lone parent with two children. By contrast, the lowest entry-level wage in the recently expired contract is $19.17. Cornell’s offer of a 4% pay increase brings this up to $19.93, more than $4 below a living wage. (Cornell administrators have pointed out that this is above the current living wage as calculated by the ILR School’s Buffalo and Ithaca Co-Labs. However, if it were calculated today, it would be close to the MIT number, and when it is next re-calculated in February 2025 it will be even higher.)

One result of wages not keeping up with the cost of living is that more and more workers commute from outside Ithaca and Tompkins County. This means that workers pay the cost of gas, wear and tear on vehicles, uncompensated commuting time, and parking. Along with these costs come risks. Workers who can’t get to work on time are vulnerable to disciplinary action, even if it is due to factors outside their control. Parking at Cornell is expensive and is assigned with little regard to need. Cornell could show respect for workers and reduce the daily stress facing workers by providing free parking near the place of work.

We must not forget that UAW members bore the brunt of Cornell’s response to COVID-19. Many administrators, faculty and staff were able to work remotely, providing them with greater flexibility. Largely excluded were workers represented by the UAW, whose skills are essential to keeping the University’s physical infrastructure operational and who literally keep much of the University community housed and fed. These workers have been treated as a second-class workforce, last in line when benefits are doled out, first in line when cost reductions or new burdens are imposed.

The University touts its public mission but refuses to behave as a good citizen. It privatizes the costs and burdens and claims for itself the successes and benefits. It rolls out the red-carpet for wealthy donors while stonewalling in bargaining and giving short-shrift to the people who make the University work. It is acting with the rapacity of a for-profit corporation sitting on $10 billion in wealth rather than with the public-mindedness and fairness required of a great public institution.

The AAUP does not believe it remotely possible for the University to function if there were a strike. It would be equivalent to March 2020, when all operations had to cease and the University’s educational and research missions had to be put on pause. This would further corrode University life and community after several difficult years. The expertise of the UAW 2300 members cannot be replaced, and University administration knows it.

The responsibility for averting a strike lies entirely with the administration. Faculty across the University know that without the work of UAW 2300 members, our teaching and research will grind to a halt. We will stand in solidarity with workers fighting for a living wage and fair working conditions.

Cornell University Chapter of the AAUP Executive Committee: Risa Lieberwitz (President), David Bateman (Vice-President), Ian Greer (Secretary-Treasurer), Suman Seth (At-Large Executive Committee member), and Darlene Evans (At-Large Executive Committee member).

Cornell Folding to Congress Is Nothing New

(The following is a piece in the Cornell Daily Sun by David Bateman. It is not a chapter statement)

BATEMAN | Cornell Folding to Congress Is Nothing New

In 1952, Pauli Murray, the pioneering scholar and civil rights activist, applied for a position at Cornell’s School of Industrial Labor Relations. It was the height of the Red Scare, when members of Congress — most infamously Senator Joe McCarthy and the House Un-American Activities Committee — targeted individuals for their political beliefs and associations.

Despite recommendations from Thurgood Marshall and Eleanor Roosevelt, the Cornell administration decided that there was insufficient proof that Murray was not a communist, and pointed to her “past associations” as cause for concern. They were likely referring to Murray’s involvement in civil rights and popular front organizations targeted by HUAC, but perhaps also Murray’s romantic relationships with women. These “associations” threatened to “place the University in a difficult situation.”

In denying her application, Cornell did not act at the direct behest of Congress. Its leadership acted instead out of worry, anticipating that by hiring Murray they might expose themselves to the scrutiny of the congressional witch-hunters. They hoped that by rejecting her application they might give “one hundred percent protection” to the University. Cornell was diminished by Murray’s absence.

Has seventy-two years been enough time for leadership at Cornell to learn that acquiescence to authoritarianism is no protection at all?

In March 2024, the House Ways and Means Committee, acting in the worst of Congress’s traditions, intervened in the internal community affairs of Cornell to explicitly attack the Coalition for Mutual Liberation (CML) and to demand Cornell “punish” these students. The House Education Committee had made similar demands of other universities, and would do so again as student encampments went up around the country.

Congressional committees are not toothless. But demands of its members do not gain force of law with their mere utterance. In this case, grandstanding by members of Congress serves their electoral interests while also coordinating a broader assault on universities. (As early as October 9, 2023, the House Republican leadership expressed its desire to use congressional resources to investigate college campuses.) Members of Congress are crafting a public narrative about what is happening on college campuses that aligns with far-right priorities to diminish universities’ significance as sites of free inquiry and public engagement.

Universities are not without legal or political resources of their own. The Cornell leadership could inform the Ways and Means Committee that intervention in code of conduct cases is inappropriate; or that under no circumstances will they discuss specific individuals or groups; they could even go on the offensive, and make the affirmative case that universities’ public mission requires protection against external interference, whether from donors or Congress.

Instead, administrations across the country seem to have bowed to pressure, resulting in the spectacle of university presidents throwing their students and employees under the media steamroller and a nationally synchronized assault on peacefully protesting students. No doubt, administrators at these universities were also hoping to provide their institutions “one hundred percent protection.”

What has the crackdown looked like at Cornell? Since October, but especially since the interim policy on expressive activity, events that touch on Palestine have been subjected to a level of scrutiny and administrative demands that borders on harassment. In contrast, in a misguided effort to showcase “viewpoint diversity,” the leadership invited the anti-Semitic and Islamophobic Ann Coulter to speak on how immigrants were a “conspiracy to end America” (and effectively enabled Cornell Police to remove and arrest a faculty member). On the day of the Ways and Means intervention, Cornell leadership ordered the arrest of students peaceful protesting in Day Hall. It later threatened students in the minimally-disruptive encampment with the same. (I suspect the discipline and good sense of the students, and opposition from faculty and persons within the administration, averted an escalation of police violence; so far as leadership self-restraint mattered, they deserve credit, though they could have committed to this from the outset.)Subscribe to our daily newsletter!

The leadership had already promised that protestors would be punished, and that repeat protestors would face escalating sanctions. This despite having no role in the normal process through which student code of conduct violations are determined and sanctioned. When it did issue suspensions, it circumvented the established process on spurious grounds, and the sanctions imposed carried consequences disproportionate to the alleged offense: the loss of a semester of work and tuition, and for international students the threat of losing their visa sponsorship.

Authoritarianism relies on vulnerability. Because of this, it targets the most vulnerable and inevitably undermines those institutions that reduce vulnerability, such as job security grounded in tenure or collective bargaining agreements or institutions of shared governance or due process rights. In its efforts to protect itself from Congress, the administration risks making congressional priorities its own and corroding those of our institutions and commitments that stand in the way.

The provost, now president, Mike Kotlikoff, warns faculty against speaking collectively, effectively telling them they should speak as isolated and vulnerable individuals before an administration that never doubts its own collective authority. Departments are told they should not post statements on matters of shared governance on their websites. The Faculty Senate is told that suspensions were not based on the interim policy even as the suspended students are told otherwise. Staff have been fired for private political speech, though transparently pretextual reasons are given. Tenured faculty are under threat of disciplinary action, including discharge. Untenured faculty are rightly worried that if they speak on controversial issues, they might be denied promotion and tenure or renewal. Not only might the leadership not defend them, it might denounce them and refuse to publicly oppose threats and harassment against them and their families.

What will happen next year? Will the administration attempt to subordinate independent voices such as the Cornell Daily Sun to administrative supervision? Will it try to enforce “viewpoint diversity” in academic programming or in classrooms? (Since what is relevant diversity is inherently a question of subject matter expertise, how could such policy not be an assault of academic freedom and integrity?) Will the committee tasked with revising the expressive activity policy be expanded to represent the expertise of the humanities and social sciences on issues of academic freedom, civil disobedience, and protest? Will it be independent from administration influence and its recommendations proceed through our shared governing bodies? What happens if a new US president comes to power, who has telegraphed his willingness to use the power of the federal government to punish students for their political positions?

Will the leadership of the University protect us, the University community? Or will it again conflate protection with compliance, facilitating authoritarian attacks on universities?

Because if Congress can demand the suppression of CML, it can demand the suppression of any group or individual on campus. So far as the University acquiesced to demands in this instance, for example by targeting CML members for suspension and promising punishment regardless of process, no one should feel secure that they would not do so in any other. If the administration was willing to undermine the perceived integrity of our disciplinary processes and circumvent shared governance to avert federal scrutiny, why should we trust them to adhere to any of our rules against any future authoritarian political leadership? And if the administration misled us about one policy, can it be trusted on any other?

If only Murray had been here to teach us.

Reflecting on Cornell’s explanation for rejecting her, Murray recalled that her most important “past association” was her family, who had “instilled in me a pride in my American heritage and a rebellion against injustice.”

As she wrote a beloved friend, “it took something like this to shock me out of my fear – the fear that has beset all liberals of late … [When I] decided to take on Cornell, I knew that I had taken a step forward. Would prefer not to fight—but the issues are so entertwined — race, sex, liberal academic tradition — each of us must hold his ground wherever he is.”

It is well-past time for Cornell – if not the leadership, then the rest of us — to hold its ground. Because the fight for higher education is just getting started.