FIRE files amicus brief after Fordham ignores state law, its own policies, our advice, and common sense in banning pro-Palestinian student group

Editor's note: Due to an electronic filing oversight beyond the control of amici or amici’s counsel, the motion to file was successfully filed on Aug. 4, not on July 31 as originally reported.

Today, a coalition of civil liberties organizations, led by FIRE, filed a motion for leave to file a friend-of-the-court brief in the case of Awad v. Fordham. The coalition brief supports Fordham students on a four-year quest to start a pro-Palestinian student group on the campus of their private Catholic university.

The group, Students for Justice in Palestine, complied with all of Fordham’s rules and regulations for recognizing official student groups, including winning a vote of recognition by the student government. The problem? A pro-Palestinian group could lead to “polarization,” according to a dean who, in vetoing recognition of the group, ignored Fordham’s own promises and policies guaranteeing students expressive rights.

It’s been 1,716 days since the students applied for official recognition in November 2015 — an application granted “final approval” by the student government before being overruled by an overzealous administrator. Dean of Students Keith Eldredge questioned whether the students would work with national Jewish advocacy groups before denying the group on the grounds that they might advocate for the “political goals of a specific group.” The horror!

In letters to Fordham, FIRE and the National Coalition Against Censorship warned the school to back off (twice), arguing that the students were well within their rights to form the political group. After wrangling with the administration for months, the students filed a lawsuit in April 2017 with assistance from Palestine Legal and the Center for Constitutional Rights to defend those rights — and they’re still awaiting justice. 

In the interim, Fordham tried to use the legal system’s slow resolution of cases to its advantage, arguing that the case should be dismissed because it had been pending so long that the initial members of the group had since graduated. Because individual students are temporary members of the community and lack bargaining power, it’s easier for institutions like Fordham to wait for them to leave than to deliver on their promises.

Finally, on July 29, 2019, a New York court ordered Fordham to recognize the club, ruling that the dean’s unilateral veto of the organization was inconsistent with Fordham’s policies and promises. Naturally, the university promptly appealed. 

As a private institution, Fordham is not beholden to the First Amendment, but it is bound by its multiple guarantees of free expression. Like its mission statement, which “guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.” Or its own policy that “[e]ach member of the University has a right to freely express their positions and to work for their acceptance whether they assent to or dissent from existing situations in the University or society.”

Fordham has not only a moral obligation to keep its promises, but a legal one, as well. Under New York law, courts have the authority to intervene when an educational institution’s decisions are arbitrary and capricious. Viewpoint discrimination — treating speakers or groups differently based on their perspective — is exactly the type of arbitary decisionmaking that freedom of expression seeks to avoid. 

The National Coalition Against Censorship and PEN America joined FIRE in submitting today’s motion and brief. By granting the motion for leave, the court will allow FIRE, NCAC, and PEN America to file our amici brief in the case asking the court simply to affirm that private colleges that promise expressive rights in their policies must honor those promises in practice.

The brief was filed by Jay M. Wolman of Randazza Legal Group. We are grateful for his assistance in defending the rights of these students.

If the appellate court upholds the decision, it will advance the expressive rights of all students, whether at Fordham or elsewhere, regardless of their viewpoint. Take, for example, the current case of Fordham student Austin Tong, whose Instagram posts have again landed Fordham in FIRE’s crosshairs. Fordham handed down an alarmist and draconian punishment to Tong, who posted a photo of himself to his Instagram account holding a legally-obtained firearm. The post referenced the Chinese government’s massacre of pro-democracy activists in Tiananmen Square. Fordham investigated Tong and found him guilty of violating university policies on “bias and/or hate crimes” and “threats/intimidation.” He is banned from campus and leadership positions, and forced to undergo bias training and write a letter of apology. 

Fordham was on FIRE’s 10 Worst Colleges for Free Speech lists in 2017 and 2018, and they seem to be working at jaw-dropping pace for a position on the next list. (Father McShane may want to preemptively clear a place on his mantle for our Lifetime Censorship Award.)

Today FIRE tells Fordham that we aren’t in the business of standing by as they stomp out student expression and their own laudable promises of free expression and association. 

We also remind the institution’s leaders that when a school promises free expression and associational rights, it must honor them.