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In court filing, Fordham gives up the charade

Fordham student Austin Tong posted to Instagram an image holding a gun to memorialize the anniversary of the Tiananmen Square massacre.

Fordham student Austin Tong is standing up for his rights after the university placed him on probation for posting this photo to Instagram.

In a court filing this week, Fordham University finally admitted a truth that FIRE and Fordham students have known for a while: Fordham just doesn’t care about student speech rights. 

Sure, Fordham makes big promises about freedom of expression. The university “guarantees the freedom of inquiry” to students, and claims they have “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.” Sounds great. 

But talk is cheap. When it comes to actually honoring those promises, Fordham’s recent track record is ugly. 

Fordham “guarantees” free speech on its website and in its policies — but once in court, Fordham gives up the charade.

Last month, FIRE told the country about Fordham student Austin Tong, suspended for two posts to his Instagram account. One featured a picture of Tong, who emigrated from China to the United States as a kid, holding a legally-obtained firearm off-campus with a caption commemorating the Tiananmen Square massacre. The other was a picture of David Dorn, a retired St. Louis police captain who died in the civic unrest that gripped the country following the murder of George Floyd, and included a caption that criticized what Tong characterized as “the nonchalant societal reaction over [Dorn’s] death.” As FIRE explained in our letter to Fordham, the pictures are plainly protected by the First Amendment and under any reasonable understanding of freedom of expression.

Tong sued Fordham last month in New York state court, alleging that Fordham failed to follow its own policies governing student expression. In a response filed this week, Fordham admitted that it has no problem restricting student speech it doesn’t like. The university argues that Tong “deliberately ignores Fordham’s prerogative to limit a student’s free expression rights which is outlined in the University Code of Conduct.” 

But the University Code of Conduct doesn’t outline any exceptions to the university’s sweeping promise of free expression that would justify Tong’s punishment. And Fordham ceded whatever “prerogative” it may have to limit student speech rights by explicitly promising students like Tong the right to freely express themselves. 

In other words, Fordham “guarantees” free speech on its website and in its policies — but once in court, Fordham gives up the charade. 

Tong’s suit benefits from recent precedent. After Fordham denied recognition to a prospective chapter of Students for Justice in Palestine because it feared the group’s viewpoint could lead to “polarization” — a decision that earned the school a spot on our 2017 list of worst institutions for free speech — the students sued in state court, alleging that the school failed to follow its own policies. They won last year. But Fordham appealed, so last month, FIRE filed a friend-of-the-court brief joined by PEN America and the National Coalition Against Censorship asking the state appellate court to again hold Fordham to its own promises.

Because Fordham isn’t pretending that it cares about free speech anymore, it should update its mission statement and policies. It should also alert its accreditor, the Middle States Commission on Higher Education, which requires that an accredited university “possess and demonstrate . . . a commitment to academic freedom, intellectual freedom, [and] freedom of expression.” 

That’s just not an accurate description of the climate at Fordham, as the school has now admitted in state court — and as Tong and Students for Justice in Palestine already know all too well. 

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