Safeguarding Free Speech

The City University of New York is considering a new policy on freedom of expression. Administrators say the policy affirms the university’s commitment to safeguarding free speech at a time of protests and politically contentious debates. But critics argue that the policy actually inhibits free speech by imposing new restrictions on some expressive activities.

“The policy was in response to a lot of events that were occurring across university campuses that were raising issues about the primacy of freedom of expression and what limitations might apply,” said Frederick Schaffer, general counsel and senior vice chancellor for legal affairs at CUNY. "Some of the issues arose in the context of Black Lives Matter and debate over Israel-Palestine. We looked and we didn’t have a specific policy on this, and we thought this would be an appropriate time.”

The CUNY Board of Trustees will hold a public hearing on the policy today and vote on it next week.

The policy -- officially called the Policy on Freedom of Expression and Expressive Conduct -- resulted from a yearlong effort by a working group chaired by Schaffer. The working group went through several drafts of the policy and solicited feedback and approval from the University Student Senate and the Executive Committee of the University Faculty Senate, Schaffer said.

Most notably, the working group recently revised the policy in response to concern from the University Faculty Senate and others over the designation of acceptable areas for demonstrations, Schaffer said. A previous version of the policy stated that students and employees could only hold demonstrations in public areas on campus “that have been designated by the educational units of CUNY for demonstrations.”

“I’ve heard some people say they were suspicious that this was intended to further restrict the right of demonstration, which was really never the intent,” Schaffer said. “But if people felt that way, we listened to those concerns and took out the provision for these designations of areas in advance.”

In its current iteration, the 10-page policy begins by avowing the university’s commitment to free speech in bold language. “It is not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even offensive,” the policy states. “Although members of the university community share in the responsibility for maintaining a climate of mutual respect, concerns about civility can never be used as a justification for closing off discussion of ideas, however disagreeable or offensive they may be to some members of the university community.”

The policy goes on to list guidelines for conducting demonstrations and distributing leaflets. As examples of prohibited activities during a demonstration, the policy cites “overnight camping on university property” and “occupying or remaining on any property or facility owned or operated by the university after receiving due notice to depart.” For students interested in arranging leaflets on tables, the policy stipulates that the administration will “designate areas where members of the university community and invitees will be permitted to set up tables.”

The Doctoral Students’ Council, which serves as the student government for Ph.D. students, opposes the policy, wrote Hamad Sindhi, co-chair for communications for the council, in an email to Inside Higher Ed. While the policy is intended to protect free speech, the council believes it achieves the opposite goal of quashing dissent, Sindhi wrote.

“Although we agree with some language in the policy that reasserts CUNY's commitment to free speech and open dialogue, we are concerned about the specific language in it that regulates dissent on campus,” Sindhi wrote. “We believe that the proposed policy will give broad powers to regulate protest and speech to CUNY administrators, and they will use this policy as another tool in their arsenal to repress dissent in any venue and at any time.”

To publicize its cause, the Doctoral Students’ Council launched a petition on Change.org that calls upon the Board of Trustees to withdraw its consideration of the policy.

The petition raises a specific objection to a line in the policy regarding prohibited conduct, which states that "prohibited conduct generally includes any behavior that adversely affects or directly threatens to negatively affect the health or safety of persons or their opportunity to enjoy the benefits of the university or materially disrupts or seriously threatens to materially disrupt university functions or operations, whether or not such conduct occurs on property owned, leased or licensed by the university."

Of this line, the petition notes, "The policy would ban 'prohibited conduct,' a term so broadly defined as to be completely susceptible to any interpretation, and allows for its punishment 'whether or not such conduct occurs on property owned, leased or licensed by the university.' This licenses the policing and repression of student, faculty and staff expression in any venue, at any time."

The Doctoral Students' Council also released a statement on Saturday that criticizes the way the provision for designated areas for demonstrations was revised. The statement alleges that when this provision was revised, language was added that "stands out as contradictory to the rest of the document, which still gives CUNY administrators broad powers to regulate protest and speech."

The CUNY Adjunct Project, an affiliate of the Doctoral Students’ Council, also opposes the policy on the grounds that it threatens public dissent, said Sean Kennedy, a Ph.D. student in English and coordinator of advocacy and education for the CUNY Adjunct Project. Although the policy no longer calls for designated areas for demonstrations, it still mandates that demonstrations occur in “public areas,” he said. This mandate could give the administration the power to crack down on demonstrations that it claims are not occurring in public areas, he said.

The timing of the policy’s release is also problematic, since many students and faculty members leave campus over the summer and become less engaged in institutional issues, Kennedy said. “To bring this policy through at this point, when the level of engagement is low, is incredibly shady, to put it bluntly,” he said. “It seems designed to pass this controversial policy with a minimum level of opposition.”

In response to this concern, Schaffer said the policy is being released now because it took longer than expected to gather feedback. “Personally, I would have been delighted if this had happened in April,” he said. “But these things often take longer when you’re soliciting a lot of comments.”

In response to other concerns that have surfaced about the policy, Schaffer released a Statement in Support of Policy on Freedom of Expression and Expressive Conduct on June 13. "I am writing to address some misunderstandings that have arisen concerning CUNY's proposed Policy on Freedom of Expression and Expressive Conduct," Schaffer wrote in the statement. “The purpose and effect of the policy is to strengthen, not weaken, the university’s commitment to freedom of speech and assembly on our campuses."

This summer does not mark the first time that CUNY has attempted to adopt such a policy. In 2013, administrators solicited feedback on a draft of a similar policy, Schaffer said. But they ultimately abandoned the draft after it generated much concern, he said.

CUNY is also far from the first institution to consider adopting such a policy. The University of Minnesota at Twin Cities considered a set of statements on free speech in May. The University of Chicago also attracted attention for adopting a statement on free speech that says it is “not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.” Several other institutions, including Princeton University and Purdue University, have since adopted portions of that statement.