Free Speech

Fordham University Disciplines Student (Austin Tong) for Political Instagram Posts

The student has now sued Fordham

|The Volokh Conspiracy |

From a Foundation for Individual Rights in Education post last week:

On June 3, rising senior Austin Tong posted to his Instagram account a photo of David Dorn, a retired St. Louis police captain killed by looters in the unrest following the killing of George Floyd. The photo included the caption, "Y'all a bunch of hypocrites," a reference to Tong's frustration, as a supporter of the Black Lives Matter movement, with what he refers to as "the nonchalant societal reaction over [Dorn's] death."

The following day, June 4, was the 31st anniversary of the Tiananmen Square massacre of pro-democracy activists. Tong, who emigrated from China as a child, posed for a photo holding a legally-obtained gun off-campus, with the caption "Don't tread on me." The caption also included an American flag emoji, a Chinese flag emoji, and a hashtag commonly used by Chinese citizens to avoid censorship of online discussion of the Tiananmen Square massacre.

Fordham wrote to Tong on June 8, when Dean of Students Keith Eldredge informed Tong he was under investigation by the university for the two photos. [The June 8 letter said, "Specifically, it is reported that on June 3 and 4, and in the recent past, you made several posts on social media related to the current racial issues in the country and political issues in China, including one in which you were holding an automatic weapon." -EV] On [July 14], Fordham handed down its verdict: Tong was found guilty of violating university policies on "bias and/or hate crimes" and "threats/intimidation."

"When Tong immigrated to the United States from China at six years old, his family sought to ensure that he would be protected by the rights guaranteed by their new home, including the freedom of speech and the right to bear arms," wrote Program Officer Lindsie Rank, author of FIRE's letter to Fordham. "Here, however, Fordham has acted more like the Chinese government than an American university, placing severe sanctions on a student solely because of off-campus political speech."

Tong's probation bans him from physically visiting campus without prior approval, taking leadership roles in student organizations, and participating in athletics. He is also required to complete implicit bias training and write an apology letter.

"While what happened to me is a total disgrace, I hope to use my example as an opportunity for the millions of people out there that fear to freely speak, and to protest the serious case of speech censorship in college campuses," said Tong. "As the country is facing a disastrous constitutional crisis, it is no time to stay silent, and we have been silent for way too long. It only takes the courage of the few to spark the patriotism of many. We will use this opportunity to let the world know that now is the time that we must speak loudly, fight for our rights, and let those who silence speech know they will face consequences."

As a private institution, Fordham is not bound by the First Amendment. But it is bound by the explicit, repeated, and unequivocal promises of freedom of expression it makes to its students, including in its own mission statement: "Fordham strives for excellence in research and teaching and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth."

Fordham holds FIRE's worst rating for free speech and makes frequent appearances on FIRE's "Worst Colleges for Free Speech" list. Additionally, a state court ruled just last year that Fordham violated its promises of freedom expression in censoring a pro-Palestinian student organization. Fordham is fighting that decision on appeal.

Pretty appalling behavior by Fordham, it seems to me. Yesterday, Tong sued Fordham for allegedly failing to "substantially adhere[] to its own published rules and guidelines for disciplinary proceedings," a cause of action that New York courts recognize even against private universities, as the Palestinian student group case shows; you can read his legal arguments here.

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  1. Pretty appalling behavior by Fordham, it seems to me.

    I completely agree. This young man has done nothing wrong.

    1. You have to depart from reality and think like a college administrator to understand — he is a threat to campus safety because he refuses to back down and adopt the viewpoints of the majority.

      The battle was lost 30 years ago when they got away with the concept of “good speech” versus “free speech” and now his presence on campus can’t be tolerated. Not because of what he has done but delusional fears of what he might do.

      1. The administrators are dumb as always but they explained their dumb rationale, and it wasn’t some overbroad definition of safety:

        Tong was found guilty of violating university policies on “bias and/or hate crimes” and “threats/intimidation.”

        Also bad, but you chose some other narrative, telepathically derived.

        1. Sarcastr0, do you honestly believe that the stated reason is always the actual reason for something?

          I’ve been in higher education WAY to long to naively believe that….

          1. I believe that in the absence of evidence, making stuff up about people’s real motivations is what crazy people do.

            1. Right.

              It’s pretty obvious that a lot of people are freaked out by the display of guns. Heck, I’m freaked out by the display of guns, because I think they are basically a tool and not a fashion statement.

              So there’s a push to define the display of guns as a “threat”, without analyzing the context of the display. Basically, they want to treat this kid as the equivalent of that couple in Missouri who pointed guns at the protesters.

              But taking a picture of yourself with a gun and posting it on social media is simply not, by itself, a threat. And part of what we pay college administrators to do is know the difference between this and an actual threat.

              1. You won’t find me defending the administrators, but you will find me taking them at their self-damning word.

            2. One of my favorite jurists is Benjamin Cardozo, who did his best work when he was on the NY Court of Appeals.

              In one opinion (Ultramares v. Touche), he wrote “negligence or blindness, even when not equivalent to fraud, is none the less evidence to sustain an inference of fraud. At least this is so if the negligence is gross.”

              In other words, sometimes an action is so dumb, that the better explanation is that the person is not really that dumb, but has a nefarious, hidden agenda.

              That is the case here. Calling what Tong did “bias and/or hate crimes” and “threats/intimidation” is absurd on its face. And strongly suggests that the persons stating that had an alternative motive, and they had to fit their decision into some printed university policy.

              Either that, or they are dumber than my dog. My dead dog who died 20 years ago. Reason enough to fire them as university administrators. I doubt they are that dumb, and so I don’t take them at their word.

              1. I don’t think that’s what Cordozo is saying there.

                But moreover I don’t like the idea of making up your own nefarious agenda based on some narrative you feel is more likely versus what someone themselves says.

                If you had even a jot of evidence we could talk. But you don’t.

                1. Ahh yes, Sarcastro’s usual argument that the left’s bad faith has to be ignored and their pretenses accepted at their word.

          2. Come on Ed, don’t be crazy. Authoritarians deserve the benefit of the doubt. Bullying a guy like Austin Tong and then making up a rationale is as natural as breathing for some people. Your role is to communicate acceptance of what they tell you.

            1. Their words are dumb enough, no?

              You don’t need to gin up some secret agenda.

              Or maybe you do, but that’s something about you, not reality.

              1. What secret? He’s not Fordham’s type of guy. They prefer other types of people. Doesn’t seem secret.

                If he wanted any kind of fairness from Fordham, he should have been more like the sort of people Fordham prefers.

                1. They said why they did it. That was plenty dumb enough.

                  Just because you’re prefer it to be even more dumb so you can push your viewpoint persecution narrative doesn’t mean you get to just decide what they’re really thinking based purely on your generalized contempt for universities.

                  1. Others do. I don’t accept double standards.

                    Why should we believe Fordham? Because you like arguing?

                    You can believe they made the insane leap from the image of a gun to a threat if you want. A more rational explanation is that they decided they don’t like him and — in the normal progressive leftist way — came up with a justification to bully him.

                    Either way they’re bad. You can prefer your explanation if you want.

                    1. “I don’t accept double standards.”

                      Sure you do. Every time you visit this blog and swallow its ostensible advocacy for free expression.

                      This blog incessantly publishes cherry-picked, often misleading swipes at strong liberal-libertarian institutions with respect to ostensible offenses against free expression.

                      This blog does so despite
                      (1) issuing an undeserved free pass to conservative-controlled institutions that routinely and stridently censor (and worse);

                      (2) claiming the disparate treatment is justified because some private institutions express values and declare policies inconsistent with free speech — while it disregards such ‘conflicting values’ statements from non-conservative private schools,

                      and

                      (3) engaging in viewpoint-driven censorship targeting commenters who make fun of or criticize conservatives.

          3. Sarcastr0, do you honestly…

            The correct answer to that is always, “No”.

            1. People disagree with me, and I get things wrong plenty.

              But I don’t lie, Wuz.

        2. “overbroad definition of safety …“threats/intimidation.”

          Isn’t imagining a threat when thee is none an “overbroad definition of safety”?

          1. Not as Ed’s defining it – “he is a threat to campus safety because he refuses to back down and adopt the viewpoints of the majority.”

            1. I am merely citing the NaBIT’s definition of Cognitive Aggression.

                1. At the more serious end of the spectrum, BITs conduct
                  threat and violence risk assessment as part of their overall
                  approach to prevention. Threat assessment is a response
                  to a direct threat (e.g., “I am going to put a bomb in the
                  library,” or “I am going to kill my roommate.”). A violence
                  risk assessment is broader and includes assessing the
                  risk of individuals who may not have made direct, veiled,
                  conditional and/or indirect threats

                  So kind of the opposite of what you said.

                  You are once again speculating yourself into an overdramatic narrative that is not exactly factual yet again.

            2. “Refusing to back down and accept the views of the majortity” isn’t necessarily far off the mark, given it was a slow change in viewpoints that got that rule activated.

              Just as cancellation of gays happened not too many decades ago, so too, this. It’s all about majority’s ability to be stirred to scare politicians and businesses who mouth the wrong things.

              1. I mean, there will always be a social price for our of favor points of view.

                That is not the same as the narrative that Ed is pushing that disagreement is interpreted as being murderous by schools.

                1. Sarcastr0…That is interesting = I mean, there will always be a social price for our of favor points of view.

                  Straight-up questions. Say yes if you mean Yes, and no if you mean no.

                  Did Austin Tong commit a hate crime?
                  Did Austin Tong commit a bias crime?
                  Did Austin Tong threaten anyone?
                  Did Austin Tong intimidate anyone?

                  For the record, I have four ‘Nos’. This young man has done nothing wrong. Except advocate for his views in a peaceful manner and apparently violated Groupthink. Bari Weiss was right about that.

                  1. Concur. Just because I think Ed’s theory is unsupported fiction doesn’t mean I think Fordham has a leg to stand on for their actions.

                    But I take them at their word – this was dumb fear of guns, not sinister secret censorship.

                2. I think it’s probably possible to make a reasonable case that many if not most universities do interpret disagreement as being murderous, at least when the topic of disagreement is guns.

                  On the other hand, I’m to lazy to do the work to do that, so…

        3. What hate crime?

          Also, how does an individual plausibly make a ‘real threat’ against china? The subtext seems to be ‘no criticism of china is permitted’, which is laughable, since no rational person would understand that as a threat.

          Also appalling: calling that an automatic weapon. It’s semi-automatic. There’s a world of legal difference between the two.

          1. I said the administrators were being dumb. I don’t know what they’re talking about, but I know their explanation contradict’s Ed’s telepathy.

            1. I said the administrators were being dumb.

              So you’re making the same sort of evidence-free assumption that you’re criticizing Ed for making, understanding that a claim does not constitute evidence to support that claim.

              1. Did…you just log on and do a search of my name to post some sick burns?

                Because my evidence is what the administrators actually said, as you’d know if you read the thread versus just checking out what I said without context.

                Don’t stalk me, it’s weird.

        4. who exactly did he threaten or intimidate? The only way to get there is with delusional thinking about what he might do based on a picture of holding a rifle and advocacy for free speech or valuing everyone’s life.

          Unless you want to go with hate speech for thinking it’s hypocritical to claim Black lives matter but not Dorn’s.

          They may have given a reason but it has no bearing on the real world.

          1. You won’t find me defending Fordham’s actions here, sorry.

            I don’t see how it’s at all closer to the truth to replace the dumb reason they gave with a different one you prefer.

            1. Well, for starters, it proceeds from the assumption that the members of the administration of a major university probably didn’t get their positions by being complete morons.

              1. So rather than reading what they said as something they meant, you write some fan fiction about their real secret agenda.

                Yeah, that’s normal.

            2. “I don’t see how it’s at all closer to the truth to replace the dumb reason they gave with a different one you prefer.”

              Husband: You see, honey, what happened was that your sister came over to the house while you were gone to use the shower, and as she was going to the bedroom to get dressed, I bumped into her, we slipped, and my penis landed in her vagina.

              Wife: You’re having an affair with my sister!

              Husband: Why would you make an evidence-free assumption like that instead for relying on the only evidence we have, which is what I said?!?

  2. Wow. A Black Lives Matter supporter speaks out in support of a black person who was killed, and commemorates the anniversary of the Tiananmen Square massacre, is guilty of “hate speech” and “threats.” Just wow.

    1. Yet they wonder why people call them hypocrites and snowflakes and communist apologists.

      1. Artie Ray Lee Wayne Jim-Bob Kirkland asked me to tell you that finds your “hypocrites” observation ironic.

        He would have told you directly, but he was silenced by the conservative banhammer.

        Other than that, this a fascinating discussion.

  3. And I bet that’s not an “automatic” weapon, unless they count it as automatically raising their hoplophobia.

    1. I was going to raise the same point — along with how do they even know its not a plastic replica…

    2. I just posted EV’s post to Twitter and Facebook. I’m waiting for a comment about “automatic” weapons so that I can educate them again – for what good it will do – as to the difference between a military Assault Rifle and a civilian “Assault Weapon”.

      And of course about the suppression of speech and expression, I have little to add to the excellent observations in the letter, post, and comments here. Despite the increasing frequency of these types of actions, It’s still incredulous …

      1. And “AR” stands for Armolite Rifle — NOT Assault Rifle!

        Much like “Ford” stands for “Ford Motor Company” and not ‘Found On Road, Dead.”

        1. I thought it was “Fix Or Repair Daily.”

        2. Fucker Only Runs Downhill.

        3. I have come across that “confusion” occasionally in articles or article comments. Unfortunately I have never had it directly addressed to me so that I could correct them on the derivation of “AR”.

  4. “automatic weapon”

    Ugh….not again. When will liberals learn every tacti-cool looking gun is hardly an automatic weapon.

    AND, even if it is was a bona fide machine gun, those are still legal to own, possess, and carry in the United States.

    One thing I don’t see is the logic in how Fordham got from those posts to “hate crime.” Any more on that?

    1. There is no logic to that.

      1. There’s a hint, mentioning the “current climate” re: China.

        As if anger over a murderous, dictatorial government currently consolodating power is the same as some racial hatred by…a Chinese guy against his former countrymen?

        Wait, that can’t be right.

    2. Words mean what administrators want them to mean — read _Words That Wound_ to understand this.
      https://www.amazon.com/exec/obidos/ASIN/0813384281/reasonmagazinea-20/

      1. I read the fact section in the memo supporting the motion for preliminary injunction. Obviously that is biased toward the plaintiff but does not seem to explain the logical leap from the facts to a finding of the violation of an (ambiguously worded) bias policy.

        I suspect that they will lose on the “arbitrary and capricious” count as this looks obviously arbitrary. Maybe the university will counter with a decent argument, but at least from the facts as stated I don’t see how they will be able to convince any fair minded judge that it wasn’t a completely arbitrary exercise of power.

        1. Jimmy, it likely is FAR worse and Fordham’s lawyers may intentionally lose this case so as to keep the more damaging facts quiet.

          My guess — an educated guess — is that Fordham’s BIT (which would include the Dean) met on June 8th and decided his fate there and then, with everything subsequent being pro forma. (See more on BIT below.) And I really don’t think Fordham’s attorneys want *that* coming out.

          Conversely, all Tong’s attorneys have to do is (a) confirm that Fordham has a BIT (it’s considered “best practices” so they likely do), (b) determine who is on it, and (c) have a chat with the members. Higher Ed Admins are inherently cowards and for some reason are terrified of lawyers (I never was) and my guess is that at least one of them will spill the beans on this.

          Sunlight is the best disinfectant and I’ve long wanted a little bit of sunlight shining on the secretive star chambers of these BITs…

          1. In other words:
            “I suspect that they will lose on the “arbitrary and capricious” count as this looks obviously arbitrary. ”

            What if it’s also pro forma?

            What if Fordham has a secret group of top level administrators, called the Behavioral Intervention Team (or something similar), which decided on the sanction and then told the Dean (or the Dean, as part of the BIT, agreed) to pursue the proceedings consistent with the predetermined decision?

            The second I saw the picture of him with the rifle, I knew that he was f****d. Yes, *I* saw that he was holding it properly, finger *outside* the triggerguard and pointed in a safe direction — but I also know how it would be viewed in the star chamber of a BIT.

            Someone would have said “he’s the next Virginia Tech Shooter” and everyone else would have agreed. Welcome to the reality of the BITs….

            1. What if Fordham has a secret group of top level administrators

              What if the Fordham Admin is all lizard people who let their instinctive fear of Asians take over?

              1. Having an administration composed of lizard people is not considered a “best practice” in the Student Affairs/University Administration professions. Having a BIT *is*.

                Your comment is as asinine as saying that senior partners of major law firms are lizard people (whatever that is) — no, we *know* that most major firms *have* “senior partners” and we *know* what they tend to do. Not always, but in general….

                1. Quite frankly, I don’t know anything about these BIT’s, but

                  1) You admit you have no evidence that there’s a BIT at work here

                  2) I frankly don’t believe your melodramatic interpretation of what a BIT is, since you have a history of making things up to comport with melodramatic right-wing persecution narratives just like this.

      2. “Sticks and stones may break my bones, but words can be tied to brain changes so I get to silence you!”

        This is the vector for First Amendment censorship to escape the containment domains of college and business, into the wilds at large.

        You have been warned.

        1. Fordham is clearly dumb as hell here, but you’re overextending.

          Bullying is largely based on just words and it ain’t nothing.

          Finding ways to deal with bullies without trampling on free speech is absolutely an issue administrations should look into.

    3. Hate crime, and any other emotionally useful words, are subject to redefinition at will by the progressive left. You should learn that before they declare you guilty of a hate crime.

  5. Forcing students to write “apology letters” for heretical beliefs or behavior seems fairly standard in China. The Tongs must be starting to feel as if they never left their old country.

  6. “As a private institution, Fordham is not bound by the First Amendment.”

    Bullshit. The US Constitution protects the God given rights of all citizens. Everywhere.
    You are making the same claim that was used by segregationists everywhere, and has been shot down by the Supreme Court time and again.

    1. Besides, Fordham wouldn’t exist without the massive Federal largess provided to purportedly “private” IHEs.

      1. Grants don’t turn something from private to public.

        1. But he is right, that federal funds, especially student loans, are the hook that courts use to say, require schools to have military recruiters allowed on campus or to force military schools to accept women.

          1. It’s a lot more than student loans, particularly at universities — don’t overlook (a) the research funds and (b) the research overhead.

            1. There’s plenty of hooks in research grants (Buy America Act, Single Audit, etc.)

              But nothing about becoming a government actor for Constitutional purposes.

              1. Care to explain the relationship between research grants (from any Federal entity) and the authority of the US Department of Education’s Office of Civil Rights?

                While they’ve never done it, OCR has the right to (for cause) terminate those grants.

                1. I’m quite sure they do not have that authority.
                  There are plenty of termination reasons in the Federal terms and conditions, including following all Federal Law.

                  So they could go after you for breaking the CRA, but not the Constitution.

                  1. Congress could deny funds to schools that don’t First Amendment, but good luck with that as the recent trend from government’s coercive hand has been towards censorship, not away.

                    Wait. This is the US. That can’t be right.

                    Wait. Looking at human history, it is always right.

                    1. You mean set a condition on the grant? I guess they could…it’d be pretty janky – universities must certify they abide by the caselaw regarding the First Amendment as though they were a State School…

                      But Congress has not, and I don’t think they will do so.

                      The calls for censorship I see are vastly more advanced on the right about twitter and corporations and even private institutions Freedom of Association than these admittedly bad campus stuff highlighted by the right.

          2. That’s explicit in the language in a statute.
            It has to be explicit, as the sanctuary city cases demonstrate.

            There is no explicit hook saying you’re bound by the BoR.

        2. Sarcastr0, go talk to Hillsdale or Grove City College.

          There may be a few more, but those two are the only truly “private” colleges that I know of — and they don’t have to deal with Title IX or any of the other stuff because they refuse all Federal funds.

          And then there is what California did by statute — and perhaps one of the professors *in* California might want to give the specifics, but as I understand it, the “private” distinction doesn’t apply there.

          1. More important, talk to the many conservative-controlled campuses that accept federal funds yet engage in routine and strident censorship; rejection of academic freedom; collection of loyalty oaths; enforcement of speech and conduct codes; viewpoint-driven discrimination in everything from admissions and administration to hiring and firing; compulsory teaching of nonsense and imposition of dogma; and the like.

            That those conservative-controlled entities tend to be obscure, low-ranked institutions, and get passes from conservative critics such as FIRE and the Volokh Conspiracy, does not diminish the point that their everyday restriction of expression is at least the equal of anything attributable to the liberal-libertarian mainstream.

            1. In a thread about FIRE attacking just such a private college, in a thread posted on Volokh.

              Good job!

              1. FIRE tends to attack private schools that are not controlled by conservatives and to ignore censorship by private schools that are controlled by conservatives.

                Unless you contend that Fordham has become an Ouichita Baptist- or Liberty-class institution, FIRE sniping at Fordham fits comfortably within FIRE’s tradition of cherry-picked, partisan selected of targets.

                1. No, FIRE tends to attack private schools that say one thing but do another. If Fordham hadn’t made multiple, loud and public acclamations about their commitment to the principle of free speech, there would be nothing to see here.

                2. “FIRE tends to attack private schools that are not controlled by conservatives and to ignore censorship by private schools that are controlled by conservatives.”

                  Whatever left-wing controlled university left him unable to look up basic facts. Here, Arthur is a link to a google search of references to Liberty University on FIRE’s website. Arthur’s left-wing university must have taught him that facts are racist or something.

                  1. FIRE has acknowledged, and attempted to explain, its practice of ignoring censorship at conservative-controlled private schools while expressing outrage at similar (and lesser) censorship at mainstream private schools.

                    Other than that, though, great comment!

      2. Dr. Ed: You Don’t Become a “State Actor” Just by Getting Government Funding or Benefits, and you (whether you’re Google or a private university or anyone else) don’t become restricted by the Bill of Rights because you get such funding or benefits.

        1. Agreed — although you are subject to a lot of things as a recipient of Federal funding and I’m thinking of some specific things that have been proposed for the reauthorization of the Higher Ed Act, which I believe still has yet to happen.

          And 20 years ago, gay marriage (let alone transgender rights) didn’t exist — and now SCOTUS has ruled on both. Respectfully, I don’t think that either of us can state with certainty what will constitute a “state actor” in 2040 — and my point is that places like Fordham couldn’t exist without the Federal funding.

          Now with upwards of half of existing IHEs expected to close by 2030, who knows what the future will bring — I doubt anyone expected the Penn Central RR to go bankrupt…

          1. That does not appear to have been your original point: Fordham wouldn’t exist without the massive Federal largess provided to purportedly “private” IHEs.

            That looks like a statement about what the law is, not what it will be in 2040.

          2. Dr. Ed: “It’s illegal to wear a hat in public.”
            Sane people: “No, it isn’t.”
            Dr. Ed: “Well, who knows what the law will be in 2040?”

    2. This is also a tired old comment. Maybe there is a case these types of actors should be forced to follow the constitution. But the courts have pretty much uniformly held otherwise. And I doubt that will change any time soon.

      1. Jimmy, I doubt a judge will be happy hearing about a BIT. Even OCR has had problems with them, saying that once you send a student to the BIT, you are required to accord him ADA accommodations in all judicial proceedings on the basis of the BIT alone.

        IHEs want to keep these secret because they are such a grievous and reckless violation of due process that the public wouldn’t stand for it. And then when they do encounter someone who truly is both crazy & dangerous, all they do is kick him out and let him loose on an unsuspecting society — case in point the “Batman Shooter” circa 2012 and the perp who shot Gabby Gifford a couple of years before that.

    3. “Bullshit. The US Constitution protects the God given rights of all citizens. Everywhere. You are making the same claim that was used by segregationists everywhere, and has been shot down by the Supreme Court time and again.”

      Did you object when the Volokh Conspiracy banned a commenter for making fun of conservatives, or censored the term “c@p succ@r” repeatedly, or warned against use of the term “sl@ck-j@w?”

      Or does your outrage precipitator, like that of this blog’s Board of Censors, discriminate based on political viewpoint?

      1. Naw. It makes me happy to have less ignorant name-calling here. Thanks, Professor V.

        1. If your idea of a good situation involves censorship of “sl#ack j@w” and “c@p succ@r” while “Antifa tranny” gets the matador’s wave, this is just the place for you. Just don’t expect to be respected in mainstream America.

    4. The Constitution does what it says it does. In the case of the First Amendment, it constrains Congress/the federal government, and not private universities.

      1. Actually, the 14th Amendment applies it to the states, and hence to the state universities.

        Now, notwithstanding the issue I raise about Federal money, the concept of a contract applies to the private universities and their stated policies (i.e. free speech policies) exist as enforceable contractual rights for their students.

        But take Title IX — that applies because of receipt of Federal funds. That’s why what Betsy DeVos did is so significant — and while it probably would take an Act of Congress, this BS could be ended via the receipt of Federal funds.

    5. “Congress shall pass no law…” binds only Congress – and entities controlled by it one way or another.

      Natural law arguments are fine (if weak, when used against people who don’t already agree), but the First Amendment is not natural law. At most it is an expression of it.

      Don’t hand-wave between the two; they’re not identical.

      (Perhaps you’re thinking of a general ideal of free speech? That’s fine, too. But is also another different thing.)

      (And I don’t know that anyone believes that all private organizations have to let anyone in them say anything they want, anyway.

      That ends up asserting that, say, the GOP has to let people advocate for Communism. Or that the Communist Party has to accept anarcho-capitalists.

      The other natural right of free association means private groups can assort on any grounds they want.)

      1. One other thing to remember here is accreditation — not by the ABA but by a regional organization. It would be meaningless but for the fact that it is a prerequisite for receipt of Federal funding.

        Without going too deep into the weeds here, free speech and academic freedom is one of the criteria for accreditation. And then the 51 jurisdictions (46 States, 4 Commonwealths, 1 Federal District) have the authority to permit the granting of degrees in their jurisdiction — it’s complicated, see the Dartmouth College SCOTUS case, but they have authority here.

        So you can free associate all you want to, but the local Masonic Lodge isn’t going to be issuing college degrees anytime soon….

    6. “Congress shall make no law ….”

      Even once incorporated against the states, it was against the state governments.

    7. Longtobefree: You can say what you’d like about how you think the First Amendment should be interpreted, though you might want to explain how “Congress shall” in the First Amendment and “No state shall” in the Fourteenth would apply to private entities.

      But, factually, the claim I’m making is the one that has been accepted (not “shot down”) by the Supreme Court time and again, see, e.g., Rendell-Baker v. Kohn (1982). Legislatures might be able to impose speech-protective rules on various private entities, just as they have by statute imposed antidiscrimination rules on various private entities. But those would be statutory protections, not First Amendment rules. And Congress and the New York Legislature haven’t implemented any such rules binding private universities (as opposed to California, which has).

      1. Prof Volokh,

        Would a private IHE be considered a “person” within the context of the 14th Amendment and it’s actions be considered “under color of law” in that law authorizes the awarding of degrees?

        1. Yes, and no, respectively.

          1. David Nieporent is correct.

  7. Black lives matter! (only when they’re making a liberal political point).

    “Favorite stories:” African American cop at protests. White liberals protesters yell ethnic slurs at African American cops. Because “Black lives matter”.

    African American protester goes up to calmly talk to African American cop. White liberal protester tells the African American protester what to do instead of talking to the police. Because “Black lives matter”

    https://www.policemag.com/564732/black-portland-officer-says-hes-been-target-of-racism-from-white-blm-supporters

    1. I saw that; it was linked in a previous thread.
      It’s not great, but I would not that this is also what defense attorneys tell you.

      1. More Black lives that apparently don’t matter….

        https://en.wikipedia.org/wiki/Shooting_of_David_Dorn

      2. Black lives matter…as long as they’re liberal politicians.

        https://minnesota.cbslocal.com/2020/07/14/officials-152k-spent-on-private-security-for-some-minneapolis-city-council-members/

        They get private security to protect them, while simultaneously slashing the police budget that protects normal African Americans….

      3. I don’t think you know what black lives matter means.

        Well, actually I know you do but you’re being obtuse so you can try and score some quick strawman points.

        1. Of course I know what BLM means.

          Black lives matter! (only when they’re making a liberal political point). If they’re in the way, it’s fine to sacrifice black lives. For the cause.

          That’s what BLM actually means.

          1. Call me cynical, but I think BLM is more a Marxist offshoot of Antifa than anything else.

            It’s like shouting “Yankees Suck” at a UMass football game (which is common) — it’s a unifying slogan that is largely irrelevant to the issue at hand. BLM is Marxist, not even “Liberal.”

            1. Marxist offshoot of Antifa.

              BLM predates Antifa. But why not tie everything together in a conspiracy?

              Also cops having some race and use of force issues is not really a Marxist thing, so I guess you’re just blindly redbaiting.

              1. I was dealing with Antifia 20 years ago.

                They didn’t call themselves that back then, but it’s the same group and a lot of the same actors, now out of college and living off funds of mysterious origins.

                1. (((Soros))), of course, right?

                2. No, Black Bloc Antifa was a thing as long as I’ve been an adult. They’ve been destroying shit on the world stage since the early 90’s but to Sarcastro that’s well after BLM (not the government agency) got started with Trayvon Martin.

                  1. The Protocols of the Elders of Negron, eh?

          2. That’s not what BLM means.

            But it’s telling you see it in such a purely factional, point-scoring way.

            1. Uh huh. Because you call a black person being killed just a “strawman”

              Un believable.

              1. Yeah, because you used a strawman definition of BLM in your crappy argument.

                And now you’re appealing to outrage as though by pointing out your fallacy I don’t care about black people dying.

                You suck.

        2. “I don’t think you know what black lives matter means.”

          You don’t think that it means that black lives…matter? I mean, it’s three words, it’s not that hard.

          1. No, I don’t. Because I know how slogans work. And so do you, when you’re not trying to be cute.

            I also don’t think white lives matter is just three simple words to be taken literally. Or defund the police. Or Germany Uber Allies.

            1. Ohh! Or a Chicken in Every Pot. Not just about chicken!

            2. “No, I don’t.”

              OK, got it. Sarcastro doesn’t actually think that Black lives matter.

              There. you. go.

              Always nice when it’s pointed out so simply.

              1. Yeah, screw you with that fallacious nonsense.

                Debate better, this namecalling nonsense is dumb.

                You didn’t used to stoop this low.

                1. “Debate better,”

                  He’s debating better than you.

            3. “No, I don’t. Because I know how slogans work.”

              Are you sure?

              If you have to say, ackshually, what my slogan really means is… then maybe your slogan isn’t working.

              1. Slogans are semiotic like flags.

                Unless you think a Chick in Every Pot was all about poultry.

  8. He’s obviously a racist clinger and should open wide and take his medicine from his betters, right Rev?

    1. Why do you believe that, clinger?

  9. I’m surprised that they didn’t declare him “mentally ill” because of the picture of him with the gun. UMass and several other schools I know would have done exactly that and expelled him on indefinite medical leave — although perhaps Fordham wanted (needed) his money….

    It will be interesting to see if Fordham’s “Behavioral Intervention Team” (whatever they may call it) met to decide his fate. That increasingly is protocol at our purported Institutions of “Higher” Education and if that comes out in discovery — well, I’m not an attorney but I’m thinking he’ll have a much stronger case if Fordham is forced to admit to having the “sentence now, verdict later” approach that is increasingly common today.

    These “Behavioral Intervention Teams” came out of the Virginia Tech tragedy of 2007(?) and like many well-intended things, have become Orwellian nightmares. Google “Cognitive Aggression” and be scared — be very scared.

    Austin Tong’s “crime” was persisting in unpopular viewpoints and not changing his to meet those of the majority. The BIT philosophy is that means that he inevitably will become “the next VT shooter” unless he is forced to modify his viewpoints.

    I am not making this up.

    1. I am not making this up.

      LOL

    2. BIT’s hide behind HIPAA because of “mental health” so their crap sees like public transparency.

      1. Except that HIPPA doesn’t apply — FERPA does.

        HIPPA and H&HS guidelines explicitly state that any medical care (including mental health) provided by a IHE to a student is regulated by FERPA and not it. (This is a real concern with the mental health aspects of Common Core in K-12.)

        And FERPA is *much* looser than HIPPA, permitting essentially any institutional purpose, even when not in the best interest of the patient. And then another trick is to hide the BIT’s files in the campus police department so that the student doesn’t have access to them — with the police being a member of the BIT.

        1. Free clue: you might look less like you were making stuff up if you didn’t make up statutes that didn’t exist, like “HIPPA.”

    3. I didn’t show up at my dorm room for long enough (living elsewhere, unofficially) that when my roommate got kicked out for having a dog, they couldn’t find me, changed the locks, and when I did show up, the resident took me to see a shrink friend; I didn’t know where we were going until we got there. I thought this was pretty funny, and went on in anyway. Told the shrink his friend the resident thought sleeping off campus was reason to see him. He looked a bit startled, asked if I wanted to discuss anything, I said no, he said goodbye, we both smiled, and I left. This was probably around 1970, UC Berkeley.

      Authoritarians have been using shrinkology as cover for a long long time.

      1. Today they likely would do an involuntary psych commitment.
        UMass Amherst does upwards of three a day from the dorms alone — I know this from the town fire department’s ambulance logs, which the union published in hopes of getting more guys hired.

        1. Ed, do you know how hard it is to get an involuntary psych commitment?

          3 involuntary commitments a day at UMass?!

          Bring receipts or stop with your nonsense.

        2. Hundreds each academic year?

          The distinction between InfoWars and the Volokh Conspiracy diminishes daily.

    4. I am not making this up.

      First time for everything!

  10. On the merits, I agree that what Fordham did was abominable, and that Fordham deserves all the bad publicity it’s going to get as result.

    As far as the legalities, though, it seems to me that the whole point of private education is to have a free market of different institutions with different values so that students and parents can decide for themselves which values they want to be taught. Fordham’s values are not mine, nor are they the values of most commenters here. But they are the values of Fordham, and presumably at least a significant chunk of the Fordham community, so this young man’s remedy may simply be to enroll in another institution with values more in keeping with his own.

    I am the product of private evangelical Christian education, from Second Grade to my second year of college. None of the Christian schools that I went to would have kept someone around, student or faculty, who publicly espoused anti-religious beliefs. Publicly believing in evolution, or gay rights, would have gotten you shown the door. And as repulsive as I now find those positions to be, those are their values, and they are entitled to them. How is this any different?

    1. Fordham, however, published their purported values ahead of time. And, as the article points out, those values included an unambiguous support for the principle of free speech. Students (and parents) presumably relied on those publications when making their choice. Fordham, being a private institution, can’t be held to account for First Amendment violations but they can be held to account for false advertising/breach of contract/etc.

      The article above does not directly address it but presumably Fordham also has published policies about how they will conduct investigations and determine punishments. If, as the article suggests, they failed to follow their own policies and instead acted in an arbitrary and capricious manner, they can be held to account for that too.

      1. The appalling behavior then has nothing to to do with speech and academe but violation of contract, correct? A person who agreed to build a 4 foot fence but who instead made it 3 feet, 11 inches would be, in principle, just as appalling?

        1. How about someone who didn’t dig any holes for the posts and the whole thing fell over?

          You know, a material breach of the contract…

          Although if someone installed a fence that was 4′ 1″ high in violation of an ordinance limiting the fence to 4′ 0″ and the city ordered it removed, I’m thinking there might be some issues if that ordinance was specified in the contract.

        2. No because breaching a contract involving tens of thousands of dollars, years of effort and a potentially life-altering decision to withhold a college degree is rather more substantial than shorting a fence by an inch.

          No because a commitment to freedom of speech is generally considered integral to a robust education and a university reneging on that promise for one person implies that they cannot be trusted to keep it for anyone – another consequence that is rather more substantial than a short fence.

          The point about breach of contract vs First Amendment is not whether or how appalling the behavior is – it’s about when and how you can seek redress for it. You can’t make First Amendment claims against private entities. On the other hand, neither do they get to simply write off their misbehavior because “values”.

          1. So Rossami, just to be clear, the Christian schools I attended should not be able to exclude atheists either? If they should, what’s the difference?

            1. Conservatives should be able to exclude atheists. Superstitious bigots have rights, too.

              Conservative should have enough self-awareness and decency to refrain from hypocritical sniping at our strongest schools, though. I recognize that flattering right-wing donors can be lucrative, but still . . .

    2. Taxpayer busybody comes with the taxpayer money. If they don’t want the former, they can stop taking the latter.

      1. So, since Liberty or BYU takes taxpayer money….

      2. Hmmm, seems I was wrong. Prof Volokh posted a comment to a previous article about this very thing. I bet he gets tired of everyone getting it wrong.

  11. I wonder if Fordham might have reacted differently if Austin Tong were in one of the progressive left’s preferred racial, ethnic, gender or sexual preference categories?

    It’s not like there’s a national movement to promote the fact that his life matters. Or a pride month for his association preferences. Or celebrated organizations to make sure his gender feels included in various parts of society. There’s no quota or other advantageous measures to help members of his ethnicity get accepted to universities.

    Fordham apparently feels no shame in bullying him. It’s a sad irony leaving one authoritarian-controlled place and coming to America only to encounter the same sort of people in charge of institutions here.

    1. Why not speculate a counterfactual to really make your point clean and smooth!

  12. Would New York law allow Fordham to discipline him for this if he was an employee?

    1. Complicated — I’ll be blogging about New York law on this in the next several days, but you can read all about it here.

  13. Also did anyone else notice F.I.R.E.’s letters have become a lot more boring and lawyer like over the years? Seven pages for a fairly straightforward argument for the audience being the general public is just too long. If you want to read some really good pieces of rhetoric find some of the old letters written by Harvey Silverglate or Alan Charles Kors. Those are some golden piece of advocacy writing.

    1. FIRE is a fringe, separatist group. It should rant stridently in an attempt to attract some consequential attention.

      1. Separatist?

      2. Or maybe whine about being censored while threatening oral rape, Kirkland? That victimhood cachet you think you’ve attained? You haven’t.

  14. “…On June 3, rising senior Austin Tong…”

    I had never seen this term before. But it’s a useful one.

  15. 1. Although Fordham is a private university, do they take any state/federal funds at all? If so, don’t they have a responsibility to at least provide minimal safeguards to the 1st Amendment?

    2. I can see why someone might misinterpret the photo with the gun as a threat, but how in holy hell can the first photo be a bias/hate crime??

  16. Observing the progressive lexicon, how is it Fordham’s place to tell a Chinese-American immigrant how to teflect on the Tiananmen massacre? I comprehend their disdain for Tong’s appreciation of the liberties granted under the Bill of Rights, couched in a fear of the firearm he possesses, and ignorant or wilful misinterpretation of his comment re Dorn. It is odd how immigrants who have escaped totalitarian regimes are treated so shabbily by people who bestow upon them ‘privileges’ that have little to do with reality.

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