Joseph M. McShane, S.J.

, President
Fordham University
Page 2 of 10

the People’s Republic of China (PRC). See https://www.bbc.com/news/world-asia-china-

42465516. In this post, Mr. Tong appeared in the backyard of his parents’ home holding a lawfully
obtained Smith & Wesson rifle, pointed at the ground, with a caption reading “Don’t Tread on
Me.” In the post and subsequent comments, Mr. Tong passionately identified the Tiananmen
Square massacre as a “huge deal.” He said he believed “freedom comes from a strong and armed
populace” and that “Violence against any citizen should not be tolerated, and the Second
Amendment protects us from that.” See https://www.instagram.com/comrademeow/?hl=en.

On the night of June 4, 2020, allegedly due to “multiple student complaints related to [Mr.
Tong’s] social media posts,” including the claim that his posts were “grotesque” and “racist,”
Fordham dispatched two uniformed public safety officers to visit Mr. Tong at his parents’ home
in Long Island, New York. The officers were directed to “discuss the Instagram posts” and assess
whether Mr. Tong “presented danger to himself and others.”

Mr. Tong allegedly told the officers he purchased the rifle so his family would have
protection from the threat posed by ongoing riots and social disorder in New York City. He
affirmed his Instagram post of June 4, 2020, was related solely to the anniversary of the Tiananmen
Square massacre. See Affidavit of Keith Eldredge at ¶¶ 29 – 32, 35 (Aug. 14, 2020) (“Eldredge
Aff.”) (attached as Exhibit A).

Fordham’s officers determined Mr. Tong had purchased the firearm lawfully and that he
posed no threat to the Fordham community. Id. at ¶ 37. Nevertheless, Fordham deemed Mr.
Tong’s constitutionally protected speech “a security threat” (emphasis added). Id. at ¶ 38.
Fordham apparently was concerned because “in referring to Black Lives Matter protests, [Mr.
Tong] stated that he was ‘aware of the chaotic situation that needs me to keep [sic] family safe.’”
Id. at ¶¶ 36, 56.

On June 8, 2020, Fordham’s Assistant Vice President and Dean of Students Keith Eldredge
commenced a formal investigation against Mr. Tong. Dean Eldredge, who had actual and apparent
authority to speak and act for Fordham, did not allege Mr. Tong presented a danger to himself or
others. Instead, the political content of Mr. Tong’s speech was the gravamen of his inquiry.

[I]t is alleged that you were involved in an incident in which you may have violated
the University Code of Conduct, University Regulations and/or Office of
Residential Life policy. 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 [sic] weapon.

(Emphasis added.) Fordham claimed Mr. Tong’s Instagram posts may have constituted “(1)
Violation of University Regulations relating to Bias and/or Hate Crimes, (2) Threats/Intimidation,
and (3) Disorderly Conduct.” Eldredge Aff. at ¶ 39.
Joseph M. McShane, S.J., President
Fordham University
Page 5 of 10

• In its Mission Statement, Fordham promises prospective students, their parents, and other
potential consumers in the market for education certificates the institution’s commitment
to “the freedom of inquiry required by rigorous thinking and the quest for truth.” See
https://www.fordham.edu/info/20057/about/2997/mission statement.

• In its Demonstration Policy, Fordham promises prospective students, their parents, and
other potential consumers in the market for education certificates “[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 further promises not to infringe on students’ right “to express [their] positions”
and engage in “other legitimate activities.” However, Fordham fails to warn prospective
students, their parents, and other potential consumers in the market for education
certificates of their liability to potential discipline for the lawful off-campus expression of
thoughts and constitutionally protected conduct that happens to be disfavored by
Fordham’s education bureaucrats. See
https://www.fordham.edu/info/21684/university regulations/3709/demonstration policy#
:~:text=By%20its%20very%20nature%2C%20the,in%20the%20University%20or%20so
ciety.

• In its Code of Conduct, Fordham further promises and represents to prospective students,
their parents, and other potential consumers in the market for education certificates an
institutional commitment to free expression, demonstrated in part by policies punishing
students who engage in actions “which prevent[] or limit[] the free expression of the ideas
of others.” See
https://www.fordham.edu/info/21684/university regulations/3693/the university code o
f conduct.

• In its policies regarding “Bias-Related Incidents and/or Hate Crimes,” Fordham further
promises and represents to prospective students, their parents, and other potential
consumers in the market for education certificates an institutional commitment to free
expression, specifically:

The University values freedom of expression and the open exchange of ideas. The
expression of controversial ideas and differing views is a vital part of University
discourse. Although the expression of an idea or point of view may be offensive
or inflammatory to others, it may not constitute a hate crime or bias-related incident.
https://www.fordham.edu/info/21684/university regulations/6566/bias-
related incidents andor hate crimes.

Notably, Fordham defines a “Bias-Related Incidents” as “any act or behavior that is a

violation of the Student Code of Conduct and reasonably believed to be motivated by a
consideration (real or perceived) of race, color, creed, religion, age, sex, gender, national
Joseph M. McShane, S.J., President
Fordham University
Page 6 of 10

origin, marital or parental status, sexual orientation, citizenship status, veteran status,
disability, or any other basis prohibited by law.” See id.

Fordham promises to protect dissenters from prevailing political orthodoxies, not seek to
crush them. Yet based on the facts of Mr. Tong’s case, the Department is concerned Fordham’s
many promises to protect freedom of thought, speech, and expression, promises made to induce
reliance and payments of massive annual tuition and fees by students and their parents, may be
substantial misrepresentations contrary to 20 U.S.C. § 1094(c)(3)(B) and/or Fordham’s Title IV
program participation agreement. See 34 CFR 668.71(c); U.S. Dep’t of Educ., Notice of Proposed
Rulemaking, 85 Fed. Reg. 3190, 3213 n.137 (Jan. 17, 2020) (“The Department notes that public
and private institutions also may be held accountable to the Department for any substantial
misrepresentation under the Department’s borrow defense to repayment regulations”); Standard
Form 424B; 20 U.S.C. § 1094(a)(17); 20 U.S.C. § 1097a; accord U.S. v. Morton Salt, 338 U.S.
632, 642 - 63 (1952); U.S. v. Powell, 379 U.S. 48, 57 (1964); Oklahoma Press Pub. Co. v. Walling,
327 U.S. 186, 216 (1946). The Secretary has authority to levy financial penalties and/or take other
action with respect to “each” misrepresentation or program participation agreement violation.

Therefore, we request Fordham fully cooperate with our investigation by promptly

providing the following records and making the identified Fordham personnel available for
transcribed interviews administered under oath. Please be advised the Department considers your
answers to these requests to be matters within the jurisdiction of the executive branch of the
Government of the United States for the purposes of 18 U.S.C. § 1001. Consequently, you should
make every effort to answer our requests fully and completely.

I. Records Production

Please produce the following records within twenty-one (21) calendar days:

1. All records in your possession and/or control created by, regarding, or relating to
Fordham student Austin Tong, including all related electronic and social media
communications. The relevant time for this request is May 24, 2020, through the
present.

2. All records identified or referenced in Dean Eldredge’s Affidavit (Exhibit A) or relied

upon, reviewed, or used for assistance in any way in drafting this Affidavit.

3. All records in the possession and/or control of Fordham regarding Assistant Vice
President and Dean of Students Keith Eldredge (to include all associates within the
Dean’s office and those under his supervision and/or the supervision of his office) and
Austin Tong. The relevant time for this request is September 1, 2018, through the
present.

4. All records of Fordham’s Department of Public Safety (DPS) relating to Austin Tong
(including identification of DPS officers who interviewed or were present for the
interview of Mr. Tong on June 4, 2020, a narrative written description of and any
Joseph M. McShane, S.J., President
Fordham University
Page 7 of 10

records relating to DPS’s decision to interview Mr. Tong at his parents’ home on June
4, 2020, as well as any incident reports or other materials generated by this occurrence).
The narrative description and any records shall include all DPS report(s) to Fordham
administrative personnel after the June 4, 2020, interview with Mr. Tong, including but
not limited to, reports made to and/or otherwise provided to Dean Eldredge. The
relevant time frame for this request is May 24, 2020, through the present.

5. All records of any written and/or verbal communications with the Consulate General
of the People’s Republic of China in New York (a.k.a. Chinese Consulate), its agents,
or those acting on its behalf. The relevant time frame for this request is August 1, 2018,
through the present.

6. All records of any written and/or verbal communications with the Chinese Students
and Scholars Association. The relevant time frame for this request is August 1, 2018,
through the present.

7. All records regarding Fordham’s practice of monitoring the social media posts of its
students (including, but not limited to, Instagram, Facebook, WeChat, and Twitter).
The relevant time frame for this request is August 1, 2018, through the present.

II. Transcribed Interviews

Please make the following individuals available for transcribed interviews (to be
administered under oath):

1. President Joseph M. McShane, S.J.

2. Assistant Vice President and Dean of Students Keith Eldredge

3. A duly authorized corporate designee to testify regarding (a) policies regarding free
speech, free inquiry, and the First and Second Amendments to the U.S. Constitution;
(b) the contents, history, and application of Fordham’s Mission Statement,
Demonstration Policy, Conduct of Conduct, policies regarding Bias-Related Incidents
and/or Hate Crimes, and Weapons possession policies.

4. Assistant Director of Residential Life Kelly Sosa

5. Department of Public Safety personnel who interviewed and/or were present at the
interview of Tong on June 4, 2020 (to be identified in response to this request).

Your production should utilize the following procedures:

Joseph M. McShane, S.J., President
Fordham University
Page 8 of 10

• For purposes of this request, records shall be produced in their entirety, without
abbreviation, modification, or redaction, including all attachments and materials affixed
thereto.
• All records should be produced in the same order as they are kept or maintained in the
ordinary course, or the records should be organized and labeled to correspond to the
categories of the records requested.

• If the request cannot be complied with in full, it shall be complied with to the extent
possible, with an explanation of why full compliance is not possible. Any document
withheld in whole or part on the basis of privilege, or for any other reason, shall be
identified on a privilege log submitted with response to this request. The log shall state the
date of the document, its author, his or her occupation and employer, all recipients, the title
and/or subject matter, the privilege claimed, and a brief explanation of the basis of the
claimed privilege.

• Records shall be produced in electronic form instead of paper productions. Records shall
be delivered as delimited text with images and native files. Alternatively, all records
derived from word processing programs, email applications, instant message logs,
spreadsheets, and wherever else practicable, shall be produced in text searchable PDF
format. Spreadsheets shall also be provided in their native format. Audio and video files
shall be produced in their native format, although picture files associated with email or
word processing programs shall be produced in PDF format along with the document it is
contained in or to which it is attached.

• Other than native files produced along with TIF images, records should be sequentially
numerically indexed (a.k.a. Bates stamping) and reference should be made to the request
to which the records are responsive (e.g., Item 1). All files produced shall be numerically
identified within the range that the file contains (e.g., University-00001-University-
000050).

• Searches for records in electronic form should include searches of all relevant mobile
devices, hard drives, network drives, offline electronic folders, thumb drives, removable
drives, records stored in the cloud, and archive files, including, but not limited to, backup
tapes. Do not time stamp or modify the content, the create date, or the last date modified
of any record and do not scrub any metadata (other than to numerically index, as described
above). Electronic records should be produced in native format. For e-mails, please place
responses in one .pst file per employee. For .pdf files, please provide searchable file format
and not image file format.

• All email searches should be conducted by the agency’s information technology

department, or its equivalent, and not by the individuals whose records are being searched.
Please provide the name and contact information of the individual(s) who conducted the
search, as well as an explanation of how the search was conducted.
Joseph M. McShane, S.J., President
Fordham University
Page 9 of 10

• Should you have any questions about the method or format of production, please contact
the undersigned to coordinate.

As used in this Notice of Investigation and Records Request:

“Record” means all recorded information, regardless of form or characteristics, made or

received, and including metadata, such as email and other electronic communication, word
processing documents, PDF documents, animations (including PowerPoint™ and other
similar programs) spreadsheets, databases, calendars, telephone logs, contact manager
information, Internet usage files, network access information, writings, drawings, graphs,
charts, photographs, sound recordings, images, financial statements, checks, wire transfers,
accounts, ledgers, facsimiles, texts, animations, voicemail files, data generated by
calendaring, task management and personal information management (PIM) software
(such as Microsoft Outlook), data created with the use of personal data assistants (PDAs),
data created with the use of document management software, data created with the use of
paper and electronic mail logging and routing software, and other data or data compilations,
stored in any medium from which information can be obtained either directly or, if
necessary, after translation by the responding party into a reasonably usable form. The
term “recorded information” also includes all traditional forms of records, regardless of
physical form or characteristics.

If Fordham asserts attorney-client or attorney-work product privilege for a given record,

then it must prepare and submit a privilege log expressly identifying each such record and
describing it so the Department may assess the claim’s validity. Please note that no other privileges
apply here. Your record and data preservation obligations are outlined at Exhibit B.

The Department recognizes that the ongoing impact of the Chinese coronavirus pandemic
on Fordham’s operations may be significant. Nonetheless, your timely and complete response to
this Request is essential.

This investigation is being conducted by the Department’s Office of Postsecondary

Education, with support from the Office of the General Counsel. Your legal counsel will be
contacted by Paul R. Moore, the Office of the General Counsel’s Chief Investigative Counsel, to
schedule the transcribed interviews, and by the Office of the General Counsel’s electronic
discovery attorney, Kevin D. Slupe, to arrange for record transmission.

Thank you in advance for your cooperation.