Statement in Support of Policy on Freedom of Expression and Expressive Conduct

June 13, 2016

To the University Community,

I am writing to address some misunderstandings that have arisen concerning CUNY’s proposed Policy on Freedom of Expression and Expressive Conduct (the “Policy”).  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.

The Policy begins by setting forth in the strongest possible terms the University’s commitment to freedom of expression:

The City University of New York (“CUNY” or “the University”) is committed to academic freedom and the free exchange of ideas and expression of all points of view for members of the University community, including individual students, faculty, and staff and recognized groups of those constituencies.   Such exchange is at the core of the mission of higher education.  The ideas of different members of the University community will often conflict, but 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.  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 appropriate response to false or offensive speech is not to prohibit it but to respond with more speech.

It then states, in the narrowest possible form, two well-established limitations.

The first is that the “freedom to express ideas does not mean that individuals may exercise that freedom in ways that are incompatible with the functioning of the University and the rights of other members of the community to freedom of expression and to a full and equal opportunity to pursue their education and to participate in the benefits of the University.”

The second is the familiar principle that certain forms of expressive conduct may appropriately be subject to reasonable restrictions as to time, place and manner.  With respect to such limitations, the Policy provides:

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.    Similarly, meetings or forums that are open to members of the University or the public must also be conducted so as to protect their rights to participate on equal terms and without discrimination as to point of view.

It has been suggested by some that the provisions dealing with demonstrations unduly restrict, or even deny, the right of faculty and students to protest and that they represent a departure from current and past University practice.  This is not correct.

It has long been the practice at CUNY for each campus to implement reasonable regulations as to the time, place and manner of demonstrations consistent with the First Amendment.  What this has meant is that individuals or groups seeking to demonstrate have sought approval of their plans from the appropriate office on the campus.  In some cases, this has meant Public Safety; in others, Student Affairs.  These discussions usually involved considerations as to the likely size of the demonstration, its duration, its location and whether sound equipment will be used.  The goal has always been to accommodate such expressive activity consistent with the needs of the campus to perform its educational mission and carry out its business functions.  There have occasionally been disagreements resulting in appeals to higher authorities on the campus, sometimes including the President.  In virtually all instances, there has been a mutually agreeable resolution.

The proposed Policy on Freedom of Expression and Expressive Conduct is consistent with this tradition while making three significant improvements.  First, the Policy makes clear the University’s commitment to the free exchange of ideas as the paramount principle.  Second, it requires each President to designate and make known in advance the areas that are available for demonstrations “with appropriate consideration given to areas in which demonstrations have traditionally been permitted.”  The purpose is to provide greater transparency in advance of a particular event.  Third, the Policy requires each President, before making such designations, to consult “with the college or faculty governance body and the student government association at a meeting thereof.”  It thus provides for the first time an explicit role for faculty and students with respect to this matter.

The Policy also contains procedures for handling disruptive demonstrations.  Once again, these represent an articulation of common sense rules that have been applied in the past, with the improvement that the Policy makes clear what the standards of conduct are, what warnings must be given before a demonstration may be discontinued, and who has authority to do so.

Some have tried to characterize this as the establishment of “free speech zones” on CUNY campuses.  That is not true.  As the Policy makes clear, all of CUNY is a free speech zone.  Nevertheless, it is appropriate, and consistent with past practice, to establish reasonable restrictions as to the time, place and manner of demonstrations “so as to ensure the safety of individuals, the protection of property, and the continuity of the University’s education activities and business operations.”

Finally, it has been stated by some, again erroneously, that the Policy is the same as the draft policy that was circulated in 2013.  Last year, the Chancellor convened a working group, consisting of representatives of the Central Office, Presidents, faculty and students (selected by the University Faculty Senate and the University Student Senate, respectively) to draft a policy on freedom of expression and expressive conduct.  The working group substantially revised the earlier draft policy in ways that made it more protective of such freedom.  That draft was then distributed for comment to the Council of Presidents, the University Faculty Senate and the University Student Senate.  As a result of their comments, the proposed policy went through several more drafts.  The current version has been reviewed and approved by the Executive Committee of the University Faculty Senate and the leadership of the University Student Senate.

The full text of the Policy can be found at page 23 of the calendar for the next Board of Trustees meeting, http://policy.cuny.edu/board_meeting_calendars/2016/upcoming_06-27_draft/pdf/#Navigation_Location.  Interested persons may comment in person or in writing at the public hearing on June 20, 2016, in accordance with the procedures set forth at http://policy.cuny.edu/board_meeting_notices/2016/upcoming_06-27/pdf/#Navigation_Location.

Thank you for your interest.


Frederick P. Schaffer
General Counsel and Senior Vice Chancellor for Legal Affairs