Banners are still being hung, signs are still being lifted and voices are still echoing loud and crisp throughout each CUNY campus, as political and academic sparks are igniting the fiery spirit and passion of every scholar holding onto their First Amendment rights as tightly and tangibly as the picket signs that represent them.
The City University of New York has been working tirelessly to revise its Freedom of Expression policy since June of this past summer, after a turbulent past few academic years have brought with them protests, demonstrations and assemblies of an electrified student-body and faculty on campuses across the five boroughs and ranging across all spectrums of social justice, labor contracts and institutional policies.
With new members on CUNY’s Board of Trustees and new student government positions being filled, the revision of the policy on Freedom of Expression and Expressive Conduct has been tabled by administration last semester and is now being resurfaced this September for discussion, resolution and finalization.
The previous draft stirred controversy when the idea of designated “free speech zones” was introduced, but has calmed since its most recent revisions this past June, have backed off the regulation.
As noted in the most recent revision of the policy, in section 1.2 of the General Principles section, “It is also well established that certain forms of expressive conduct may be appropriately subject to reasonable restrictions as to time, place and manner… However, any such restrictions must be narrowly tailored and applied in a non-discriminatory manner and without regard to the content of the speech at issue.” What may deem a demonstration as misconduct, while not specific, only mentions the safety of individuals, protection of property and non-disruption of educational activities and business.
CUNY neglected to comment on the issue, but as stated in an email, the current policy on the table is, as according to Frank R. Schaffer, General Counsel and Senior Vice Chancellor of Legal Affairs at CUNY, still being revised, “as he is still receiving comments” regarding its current standing.
“The past policy gave the CUNY administration wide latitude, whether they would exercise that latitude or not is a question,” said Graduate Deputy and PSC Union Delegate, Professor James Davis. “But it gave them wide latitude in determining if a particular form of expressive conduct crossed the line and was transgressive of the code. And that’s a dangerous position.”
Most restrictions and prohibited conduct are stated in the Henderson Rules, which is essentially CUNY’s governing rules and codes of conduct to maintain public order, but there are still confusion and unspecified circumstances of what may constitute a violation among students.
Some of the policy’s focal points also include the termination of demonstrations that are deemed as misconduct, which is left entirely to the discretion of the campus president, his/her designee or the director of public safety.
“I personally am concerned that CUNY administration may target your more historically oppressed groups on campus,” said CLAS President Florencia Salinas. “As far as I’m concerned, protest is about ‘disrupting’ the normal operations on campus. And that’s exactly what the policy states it shouldn’t do.”
Salinas, along with CLAS student government will be drafting a resolution with Brooklyn College’s recommendations on the policy, which will then be sent to the University Student Senate, or USS.
“After we draft it, we need to get the assembly to vote on it, and if it passes, then that will be our formal stance as student government,” said Salinas. “But we need to draft it and then it needs to be voted on. If there are any revisions by other members, then it will take about another week.”
In a side-note explanation section at the bottom, the policy itself states that recent events on CUNY campuses have raised the issue of “whether and to what extent there are permissible and appropriate limits to the free expression of ideas on a university campus,” and that “issues with strong emotional resonance have caused some participants to argue that speech by their ideological adversaries constitutes bullying, harassment, hate speech or is otherwise beyond the scope of protection for free speech or academic freedom.”
The shockwave of social activism has been ringing throughout Brooklyn College and CUNY the past few years in substantial waves. A brush between public safety and students has been frequent as students were arrested at Baruch several years ago, protesting students arrested at Brooklyn College a couple years ago, and as of last year over 41 arrested at a single demonstration at Hunter College, 12 being of Brooklyn College, as faculty and allies fought for contracts.
Disruptions at faculty meetings last semester resulted in academic disciplinary hearings, and several events on campus resulted in a lightning rod of controversy between Israeli and Palestinian organizations on campus, which if not for the extremity of political and idealistic heat threaded in the issue, would almost seem commonplace on campus.
The significance in revision of the Policy on Freedom of Expression and Expressive Conduct not only is a result of university-wide activism, but a product of nationwide turbulence that’s ringing across every American campus. With social issues and events like the Black Lives Matter movement, consistent police brutality and the recurrence of violent protest spawning and escalating every day, the timing is substantial.
“I’m sure there are lots of campuses assessing their policies on demonstration, not just because of recent unrest arising out of protests against police use of force, but also because so many questions are being raised about the legality of the way campuses regulate speech,” said Frank LoMonte, Executive Director of the Student Press Law Center. “Free-speech zones and ‘civil speech codes’ are routinely struck down by the courts as being overly broad and unnecessarily restrictive, so I suspect a lot of colleges are examining their own First Amendment liability.
It’s encouraging that the policy does not contemplate an advance permit requirement, which can become a bottleneck for someone who wants to protest in reaction to a timely news event,” continued LoMonte. “The guidance that the policy gives to campus authorities — that they shouldn’t step in to stop a demonstration unless it reaches a point of violent or threatening — is sound guidance. You can’t shut down a demonstration just because some audience members find it offensive, and I think the draft policy makes that clear.”
The future of the Policy on Freedom of Expression and Expressive Conduct will be determined at a meeting on Oct. 26, by the CUNY Board of Trustees, which is open to the public. The University Student Senate, or USS, will hold two meetings before that date, where campus delegates will have their opportunity to present resolutions and express opinions.
“The next steps are for the USS Civic Affairs Committee to take a look at it, so they could really see if it’s enhancing students’ rights or suppressing students’ rights,” said Chika Onyejiukwa, the Interim Chairperson of Legislative Affairs of USS, at the most recent USS Plenary meeting Sunday morning. “Whatever it is, we need to take a look at it.”
The USS meetings will be the main platform for students to voice their comments or concerns in the weeks ahead, so that “it can be talked about at great length before it goes to the committee,” as according to Donovan Borington, USS Director of Legislative Affairs.
“If the policy is vague then you have to look at how it’s applied. The vagueness of a policy might run afoul of the First Amendment,” said Daniel Margolis, an attorney of educational law and expert on First Amendment rights. “Brooklyn College is part of a public university, so these restrictions need to be predictable. So if a group with an unpopular viewpoint is having a perfectly lawful demonstration at a location on campus, that is traditionally used as a public speech forum, then it would be unconstitutional to make up or render a rule in a moment’s notice, to quiet that group or speaker.”
According to Margolis, the policy itself is sound and does not violate First Amendment rights, but expressed a danger as to the vagueness of the restrictions. The danger lays in the possibility that a constitutionally sound, yet vague policy can give administration the potential to violate that policy when it is applied at future demonstrations.
“You know we are talking about traditional, core First Amendment free speech here. We’re not talking about some guy who wants to come to campus and sell students mops,” said Margolis. “With pure political speeches, the policies need to be absolutely clear or it can become problematic.”
The future of the policy is as uncertain as the table on which it currently is resting on. Time will tell, as the next forum of discussion will be the USS Plenary meeting scheduled for Oct. 16 at Baruch College in Manhattan, before the CUNY Board of Trustees will lay the policy’s final ink to dry.