FILED: NEW YORK COUNTY CLERK 09/11/2020 01:14 PM INDEX NO.

155646/2020
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2020

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------------------------------X
In the Matter of Index #: 155646/2020

AUSTIN TONG, Hon. Carol Edmead

Petitioner, Motion Sequences

001, 002, 003

-against-

FORDHAM UNIVERSITY, JOSEPH M. MCSHANE,

in his capacity as President of FORDHAM UNIVERSITY,
and KEITH ELDREDGE, in his capacity as Assistant Vice
President and Dean of Students of FORDHAM UNIVERSITY,

Respondents.

For a Judgment Pursuant to Article 78 and Section 3001

of the Civil Practice Law and Rules.
-------------------------------------------------------------------------X

AFFIRMATION OF EDWARD PALTZIK IN OPPOSITION TO RESPONDENTS'

MOTION TO DISMISS THE PETITION AND IN FURTHER SUPPORT OF
PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION AND EXPEDITED
DISCOVERY

I, Edward Paltzik, an attorney duly admitted to the practice of law before the courts of the

State of New York, affirm the following to be true under the penalties of perjury pursuant to

CPLR 2106:

1. I am a Partner in the law firm Joshpe Mooney Paltzik LLP, retained counsel for

Petitioner Austin Tong ("Tong"). As such, I am fully familiar with the facts and circumstances

of this case.

2. I submit this Affirmation with attached exhibits, together with the accompanying

Memorandum of Law dated September 11, 2020, and Tong's Affidavit dated September 11,

("Fordham"
2020, all in opposition to the motion of Respondents Fordham University or the

"University"), Keith Eldredge ("Eldredge"), and Joseph M. McShane ("McShane") (collectively

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“Respondents”) to dismiss the Verified Petition, and also in further support of Tong’s motion for

a preliminary injunction and expedited discovery.

3. Simply put, Respondents are extraordinarily dishonest, have a great deal to hide,

and have zero credibility. They are under federal investigation by the United States Department

of Education (“DOE”) for the events that are the subject of this proceeding, and compounding

the gravity of Respondents’ extraordinary predicament, their Dean of Students, Eldredge, has

now submitted an Affidavit to this Court (and perhaps of greater concern to Eldredge, to federal

investigators), which can generously be described as misleading, and less charitably described as

paragraph-after-paragraph of lies. Indeed, Fordham’s attorneys apparently submitted Eldredge’s

very same Affidavit directly to DOE investigators, perhaps ignorant of the deceitful content

therein. Given that Eldredge is willing to deceive this Court and federal investigators in order to

cover his and Fordham’s tracks, this is a matter of great concern, as Fordham is now

compounding its unlawful conduct with potentially worse misconduct after the fact.

4. The bottom line is that Respondents made a terrible mistake when they disciplined

Tong, refuse to admit their mistake, and instead have decided to double down on the mistake.

The fact that Respondents have the sheer arrogance to make a motion to dismiss the Petition

knowing that they are under federal investigation for the exact same series of events is telling

and speaks to their level of disregard for not only their own policies, but also for applicable law

and for the valuable time and resources of this Court.

5. Not only should Respondents’ motion be denied, but their lack of candor with this

Court and federal investigators are factors that militate heavily in favor of expedited discovery in

order to prevent Fordham from continuing to conceal the truth about their decision to discipline

Tong and other subjects of relevance, including Fordham’s relationship with the PRC and its

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ruling party, the CCP, and the impact of that relationship on the decision to discipline Tong.

6. Respondents’ strategy, to the extent they have one, appears to be that they are

desperately holding out hope that this Court will agree that Tong deserved to be punished for

expressing viewpoints that are inconsistent with Fordham’s expected orthodoxy. However, as

Respondents are surely aware, the merits of Tong’s political viewpoints are utterly irrelevant to

the outcome of this proceeding and given Fordham’s own policies, it is unlawful to punish him

for expressing his political viewpoints.

7. It is telling that Respondents have failed to identify which policies or rules Tong

actually violated, and how he violated them. If anything, Respondents inadvertently make

Tong’s case for him, over and over again. In perhaps the most stunning example of Eldredge’s

ineptitude and struggle to grasp elementary logic (or perhaps just willful deception), he conceded

that Tong did not violate Fordham’s Weapons Policy and that Fordham’s Public Safety officers

determined Tong was not a threat. Yet, he doesn’t seem to grasp that these concessions are fatal

to Respondents’ case. (Tong Aff. at ¶ 26; Eldredge Aff. at ¶ 37). Indeed, it is difficult to fathom

how Eldredge came to the conclusion that Tong had made a sanctionable threat with a firearm

when Eldredge himself conceded that Tong did not violate the Weapons Policy and Tong had

already been cleared by Public Safety. This sort of logical inconsistency is the very definition of

arbitrary and capricious.

8. I respectfully urge the Court to disregard Respondents’ frivolous strategy and to take

notice of Eldredge’s lack of candor and twisted logic, which obstruct the search for the truth

being undertaken in this Court and by federal investigators.

Procedural History

9. By Verified Petition (NYSCEF #1) with accompanying exhibits (NYSCEF #2, 3, 4,

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5) and Notice of Petition (NYSCEF #6) dated July 23, 2020, I commenced this special

proceeding on behalf of Tong pursuant to Article 78 (§§7801-7806) and § 3001 of the Civil

Practice Law and Rules (CPLR) against Respondents.

10. Tong seeks an Order of Judgment for the following relief: (a) pursuant to

Article 78 of the CPLR, annulling any and all disciplinary sanctions or loss of Fordham student

privileges imposed by Respondents against him relating to or arising out of his social media

posts including but not limited to Instagram posts dated June 3, 2020 and June 4, 2020; (b)

pursuant to CPLR 3001, declaring that his social media posts, specifically Instagram posts dated

June 3, 2020 and June 4, 2020, for which Respondents imposed disciplinary sanctions and loss of

Fordham student privileges against him, constitute permitted exercise of free expression

protected under Fordham’s policies and rules; (c) awarding damages incidental to the primary

relief he seeks, for breach of implied contract by Fordham in connection with Respondents’

imposition of disciplinary sanctions against him; and (d) granting such other relief as this Court

deems just, equitable, and proper.

11. Additionally, by Order to Show Cause also dated July 23, 2020 (NYSCEF #7),

together with Memorandum of Law dated July 23, 2020 (NYSCEF #8), Tong is seeking a

preliminary injunction in order to prevent irreparable harm relating to Respondents’ irrational

discipline, harm that he will sustain imminently absent judicial intervention. Specifically, Tong

seeks an interim Order (a) preliminarily enjoining Respondents from imposing any disciplinary

sanctions or loss of Fordham student privileges against him; (b) directing Respondents to

produce copies of all documents, including but not limited to emails and other electronic

communications, notes, records of communications, and audio or video recordings, that relate to

their decision to impose disciplinary sanctions against him; and (c) directing Respondents to

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make available Eldredge for a deposition.

12. For exercising his rights as a student at Fordham and as an American citizen, Mr.

Tong was originally forced to deliver an Apology Letter and submit to bias training no later than

Thursday, July 23, 2020. (Exhibit D, referenced below). Then, by Stipulation dated July 30,

2020 and “so-ordered” by this Court (NYSCEF # 12), Fordham’s attorneys agreed that

Respondents would hold this punishment in abeyance pending the outcome of the motion for a

preliminary injunction. However, absent a preliminary injunction, Fordham will proceed with

the Apology Letter and bias training requirements pending the outcome of this proceeding. The

Stipulation is nothing more than a “cease-fire” pending the outcome of the preliminary

injunction. If the status quo changes, this will result in Tong’s suspension and/or expulsion,

since he cannot and will not comply with these unlawful punishments.

Summary of Exhibits Annexed Hereto

13. Annexed hereto as Exhibit A is a true and accurate copy of a June 3, 2020

Instagram post made by Tong.

14. Annexed hereto as Exhibit B are true and accurate copies of June 4, 2020

Instagram posts made by Tong.

15. Annexed hereto as Exhibit C is a true and accurate copy of a letter from Eldredge

to Tong dated June 8, 2020, in which Eldredge wrote to Tong, inter alia:

It 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 weapon.

Your actions may constitute a violation of the following University Code of Conduct
articles, University Regulations and/or Office of Residential Life policies:

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1. Violation of University Regulations relating to Bias and/or Hate

Crimes;
2. Threats/Intimidation;
3. Disorderly Conduct.

In view of this, I intend to conduct a hearing to further investigate these allegations and
make a determination as to whether you are responsible for violation of these policies or
articles.

(Emphasis added).

16. Annexed hereto as Exhibit D is a true and accurate copy of a letter from Eldredge

to Tong dated July 14, 2020, in which Eldredge wrote to Tong, inter alia:

I find that your actions constitute a violation of the following University Code of Conduct
articles, University Regulations and/or Office of Residential Life policies:

1. Violation of University Regulations relating to Bias and/or Hate

Crimes;
2. Threats/Intimidation.

17. Having substantiated these violations despite a record completely devoid of any

indicia of bias, hate crimes, threats, or intimidation, Eldredge issued sanctions against Tong

including: (1) “University Disciplinary Probation,” meaning that he “shall not represent the

University in any extracurricular activity or run for, or hold office in any student group or

organization and/or represent the University in any varsity or club sports” and subjecting him to

“immediate suspension or expulsion” for violation of any of the terms of Probation; (2) “Access

Restriction,” meaning that he is not permitted to access the Fordham campus without permission

from Eldredge and must complete the 2020-21 academic year via online instruction; (3)

“Mandatory Meetings with Administrator and Program Completion,” meaning that he “will be

required to complete activities related to learning about implicit bias by no later than August 10,

2020” and must schedule a meeting with Eldredge to discuss the details of the bias training no

later than Thursday, July 23, 2020; (4) “Apology Letter, meaning that he must “write an apology

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letter and present this apology in draft form” to Eldredge no later than Thursday, July 23, 2020;

and (5) “Parental Notification,” meaning that a copy of the sanctions would be sent to his

parents. (Exhibit D).

18. Annexed hereto as Exhibit E is true and accurate copy of a letter dated August

20, 2020, from Robert L. King, Assistant Secretary of DOE’s Office of Postsecondary

Education, to McShane, pursuant to which DOE provided Fordham with “Notice of 20 U.S.C. §

1094 Investigation/Request for Records and Transcribed Interview to Fordham University” (the

“August 20 DOE Letter”). Respondents apparently provided Eldredge’s Affidavit to DOE, as

the Affidavit is annexed to the August 20 DOE Letter as Exhibit A. In addition, it should be

noted that Exhibit E contains one redaction regarding a sensitive matter relating to the safety of

Tong’s family.

19. In the introductory paragraph, Assistant Secretary King writes:

Dear President McShane:

The U.S. Department of Education (“Department”) has become aware of facts

suggesting that Fordham University (“Fordham”) may have acted contrary to its
own Mission Statement, Code of Conduct, Demonstration Policy, Bias-Related
Incidents and/or Hate Crimes and Weapons possessions policies by improperly
sanctioning Fordham student Austin Tong for the content of two Instagram posts.
Based on these facts, the Department is commencing a civil investigation to
determine whether (1) Fordham has violated 20 U.S.C. § 1094 (c)(3)(B) by
engaging in substantial misrepresentations regarding the nature of its educational
program to Tong and other students, parents, and potential consumers in the
market for education certificates by falsely promising protection for free speech,
free expression, and free inquiry, and/or (2) violated its Title IV program
participation agreements. (Exhibit E at p. 1).

20. Further into the Letter, Assistant Secretary King discusses Tong’s background

and his exemplary record at Fordham:

At all times relevant to this matter, Fordham knew or should have known that
Tong had been an exemplary student and community member since 2017. He
was a Vice President in Student Government, maintained a respectable academic

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standing in the Gabelli Business School, and treated faculty and fellow students
with deference and respect. Fordham also knew or should have known Tong had
immigrated with his family from China as a child and was a consistent advocate
in the support of liberty against Communist oppression of the Chinese people . . . .
Finally, Fordham knew or should have known that Tong had no history of
violence and no criminal or other history or record of threatening behavior or
malicious reaction to others. (Exhibit E at p. 3).

21. Assistant Secretary King continues:

These facts raise obvious questions regarding the integrity of Fordham’s

disciplinary process and the possibility Fordham’s official animus toward the
content of Tong’s constitutionally protected political speech was a motivating
factor in the actions taken against him. To begin with, the June 8, 2020, notice of
discipline specifically cited Tong’s views on “current racial issues in the country
and political issues in China.” Similarly, Dean Eldredge’s affidavit makes it clear
Tong’s views regarding rioting, violence, murder, and social disorder associated
with what Fordham termed “Black Lives Matter protests” were of institutional
concern. See, e.g., Eldredge Aff. at ¶¶ 21, 22, 26, 27, 29, 32, 35, 36, 44, 45, 52,
54, 55, 56. Indeed, we note with interest the fact that Fordham’s June 8, 2020,
notice of discipline specifically cites Tong’s political commentary on China as a
matter of university concern, but Dean Eldredge’s August 14 affidavit, prepared
in defense of litigation, asserted Tong’s opposition to Chinese Communist
oppression and the Tiananmen Square massacre were mere pretexts for
intimidating those who called him racist for speaking out against general
indifference to the murder of an African American police captain. See id. at ¶¶
56-58. (Exhibit E at p. 4).

22. Assistant Secretary King next points out that Fordham had good reason to know

Tong wasn’t a threat:

To be clear, the Department encourages prudence, diligence, and action when

school officials have reliable information a student poses a potential threat to
campus safety. In this case, however, Fordham knew Tong to be a good student
and responsible campus community member. In response to complaints about an
Instagram picture, Fordham’s trained public safety officers very quickly
determined Tong posed no such threat. Rather, the discipline in this case
seemingly appears to be founded on an entirely different basis. Apparently,
Fordham deemed Tong’s Instagram posts to be racially biased; consequently, and
ironically, given Tong’s family history, Fordham, mandated Tong suffer “implicit
bias” reeducation and write an “apology letter” for biases he neither harbored nor
expressed. Id. at ¶¶ 48-53, 56. (Exhibit E at p. 4) (emphasis in original).

23. Concluding DOE’s findings, Assistant Secretary King neatly summarizes how

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Respondents betrayed their promise to foster an environment of free speech, writing, “Fordham

promises to protect dissenters from prevailing political orthodoxies, not seek to crush them.”

(Exhibit E at p. 6)

24. The August 10 DOE Letter is also noteworthy for the way in which it undermines

Eldredge’s arbitrary and politically motivated interpretations of Tong’s social media posts.

Eldredge, without citing any sources or his qualification to be the arbiter of historical symbols,

sayings, and references, stated that “while the term ‘Don’t tread on me’ originated as part of the

Gadsden Flag during the Revolutionary War and was meant to symbolize patriotism, the use of

the term has shifted over time and has become more divisive.” (Eldredge Affidavit at ¶ 49). He

continued, “I also learned that recently the Equal Opportunity Employment Commission stated

that, while not definitively racist or discriminatory, the Gadsden Flag and the term ‘Don’t tread

on me’ could be the basis of racial harassment or discrimination.” (Eldredge Affidavit at ¶ 50).

25. The August 20 DOE Letter makes Eldredge’s “research” of the phrase “Don’t

tread on me” look ridiculous. Indeed, Assistant Secretary King observed that “the phrase ‘Don’t

tread on me’ appears on the current working uniform of U.S. Navy personnel, was ordered flown

by the U.S. Navy on its ships in the Global war on Terrorism from 2002-2019 and has a long

association defying oppressors and supporting liberty.” (Exhibit E at p. 3 fn. 1).1

26. It is extraordinary that a college dean took it upon himself to essentially

decide that certain symbols and historical references that literally have no racial or

discriminatory genesis whatsoever, and which were sanctioned by no less an authority than the

United States Navy, suddenly constitute prohibited speech and even “veiled” threats (as if

Eldredge can read Tong’s mind). (Eldredge Affidavit at ¶ 55). This is intellectual

1
Citing https://www.washingtonexaminer.com/policy/defense-national-security/dont-tread-on-me-flaghas-long-
history-of-navy-use.

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authoritarianism that has no place within an institution that supposedly embraces classical liberal

values.

27. In yet another example of Eldredge’s misleading modus operandi, he states that

part of his disciplinary consideration was “that the disruption to Petitioner’s academic studies

would be minimal since many students and professors in the Fordham community have chosen to

take (or teach) classes remotely due to the COVID-19 pandemic.” (Eldredge Affidavit at ¶ 61).

The problem with Eldredge’s claim is that at the time he rendered his disciplinary determination

on July 14, 2020 and prior, he could not have known how many students and professors had

chosen to take remote classes because Fordham did not announce its so-called “Fordham

Forward” plan until July 20, 2020, as evidenced by Exhibit F annexed hereto, which is a true

and accurate copy of an email that Tong received from Fordham on July 20, 2020 offering

students the option of taking online or in-person classes, to his knowledge the first such notice

that was sent to students.

28. Annexed hereto as Exhibit G are true and accurate screenshots of Tong’s

social media posts as of September 7, 2020, with brief statistical analysis by Tong added above

each screenshot, as well as true and accurate screenshots of numerous positive reactions to

Tong’s social media posts as of September 7, 2020. These screenshots are particularly relevant

because Eldredge misleads the Court by referring to “multiple complaints from concerned

students regarding [Tong’s social media posts],” variations of “concern and fear” expressed by a

small number of vocal critics, and “backlash” and negative comments. Eldredge also refers to

the reaction to Tong’s social media posts as “overwhelmingly negative.” (Eldredge Affidavit at

¶ 26). In fact, as demonstrated by Exhibit G, the reaction to Tong’s posts was overwhelmingly

positive. Moreover, the screenshots demonstrating that the reaction to his social media posts was

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overwhelmingly positive (Exhibit G) completely undercuts Eldredge’s theory that Tong was

retaliating against a “rebuke” when he made the Tiananmen Square post. (See (Eldredge

Affidavit at ¶ 51)

29. Even if Eldredge had been truthful with this Court about the reaction to Tong’s

social posts (which he was not), there is another problem with his line of argument. Negative

reaction to controversial political discourse is not an appropriate disciplinary consideration

under Fordham’s policies, no matter how uncomfortable the subject matter may be for some,

even where particularly vocal opponents of the speech claim to feel threatened or unsafe. This

is not a popularity contest or a pageant to determine which viewpoints are well-liked. In fact,

negative reaction is a normal part of the expansive free speech that Fordham purports to

champion, and protecting even unpopular speech is the very bedrock of a free society. Indeed,

Fordham’s Bias-Related Incidents/Hate Crimes policy specifically provides that offended or

inflamed reactions to a particular expression of speech may not constitute grounds for

punishment: “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. ”2 (See also

Exhibit K, referenced below). Yet, Eldredge appointed himself judge and jury of this concocted

popularity contest.

30. The fact of the matter is that Tong’s posts were received favorably, difficult as

that is for Eldredge to admit, completely undercutting his fabricated retaliation motive for

Tong’s Tiananmen Square post and once again highlighting Eldredge’s allergy to the truth. As

demonstrated by Exhibit G, as of September 7, Tong received 892 comments with 4,200 likes

2
Bias-Related Incidents and/or Hate Crimes, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university_regulations/6566/bias-related_incidents_andor_hate_crimes (last
visited July 21, 2020).

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for the June 3 David Dorn Post (with approximately 750 out of the 892 comments supportive),

and as of September 7, Tong received 3,348 comments with 12,297 likes (with approximately

3,250 out of 3,348 comments supportive) for the June 4 “Don’t tread on me post” about

Tiananmen Square. In addition, Respondents’ Exhibit F and Exhibit G (NYSCEF #29 and

#30) which are apparently screenshots of Tong’s social media posts captured shortly after he

posted them, show that even in the early aftermath of the posts, he received 70 comments with

261 “likes” for the June 3 David Dorn post and 123 comments with 279 “likes” for the June 4

“Don’t tread on me post” about Tiananmen Square.

31. Further undercutting Eldredge’s fabricated retaliation motive is the fact that on

June 1, 2020, days prior to making the posts relevant to this matter, Tong had already reached

out to Jimmy’s Sport Shop in Mineola, Long Island to inquire about the availability of firearms

inventory. To that end, annexed hereto as Exhibit H is a true and accurate copy of a text

exchange dated June 1, 2020 between Tong and Jimmy’s Sport Shop (with Tong’s English

translation of the exchange).

32. The reality is that Eldredge does not like guns, does not like opposing political

views, does not like free thinking, and does not like controversy. This was never about threats or

anybody’s safety. This was about Respondents cowing to a vocal group of students and faculty

that deliberately depicts expression and speech with which they disagree as “threats” precisely to

achieve this kind of result, which is forcing people into submission and silence rather than

expressing totally legitimate views that are not politically correct.

33. Tong has also received support outside of social media. For example,

Eldredge’s misguided rationale even prompted an editorial from the Editorial Board of the New

York Post calling for an end to Eldredge’s reign, saying:

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Dean of Students Keith Eldredge claimed Tong’s posts made ‘members of the
Fordham community’ feel threatened. Does it even matter that those feelings
were irrational— or that feelings aren’t supposed to trump reasoned argument.
The Jesuits should send Dean Eldredge on a long retreat: This nonsense is a gross
insult to the order’s founder, St. Ignatius Loyola, and its principles.3

34. In another example of support for Tong’s right to free speech, former

Civil and Criminal Court Judge John H. Wilson wrote in an editorial in The Observer:

The Student Voice of Fordham Lincoln Center:

It is my considered opinion that Tong is well within his rights to post a photo of a
deceased police officer and to post another photo of himself holding a legally
owned rifle on private property. To view these actions as a violation of any code
of conduct is ludicrous, and to sanction Tong for the exercise of his rights is
nothing short of criminal.4

35. Further demonstrating Fordham’s lack of candor and hypocrisy when it comes to

free speech, Fordham disabled the commentary feature on its own Instagram page on July 23,

2020, after receiving a barrage comments critical of the school’s response to Tong’s social media

posts. (True and accurate copies of screenshots of Fordham’s Instagram annexed to Paltzik

Affidavit as Exhibit I).

36. Annexed hereto as Exhibit J is a true and accurate copy of a letter dated August

10, 2020, from Reed D. Rubenstein, DOE Principal Deputy General Counsel, to McShane,

pursuant to which DOE provided Fordham with “Notice of 20 U.S.C. § 1011f Investigation and

Record Request/Fordham University” (the “August 10 DOE Letter”).

37. Commenting on DOE’s launch of the investigation, the Washington Examiner

wrote: “The Education Department added Stanford University and Fordham University to its

growing investigation into the influence of the Chinese Communist Party and other foreign

3
Post Editorial Board, “Fordham University’s shocking betrayal of reason,” New York Post (July 24, 2020)
(https://nypost.com/2020/07/24/fordham-universitys-shocking-betrayal-of-reason/).
4
Wilson, John H., “Austin Tong Has Done Nothing Wrong,” The Observer: The Student Voice of Fordham Lincoln
Center (August 21, 2020) (https://fordhamobserver.com/50212/opinions/austin-tong-has-done-nothing-wrong/).

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funding on campuses nationwide.”5

38. In the introductory paragraph, Principal Deputy General Counsel Rubenstein writes:

Section 117 of the Higher Education Act of 1965 (20 U.S.C. § 1011f) requires
Fordham University (“Fordham”) to disclose and report statutorily defined gifts,
contracts, and/or restricted and conditional gifts or contracts from or with a
statutorily defined foreign source(s), to the U.S. Department of Education
(“Department”) . . . .

Fordham has an extensive presence abroad, much of which it appears to facilitate

through its School of Business’s Global Finance Collaboration Program
(“GFCP”). The GFCP identifies approximately 28 partner institutions around the
world, including Shanghai University, China’s Southeast University, Wuhan
University, Xiamen University, and its longtime association with Peking
University in Beijing which Fordham identifies as the “first joint international
MBA program in Beijing approved by the Chinese government.” See
https://www.fordham.edu/info/25472/doctor_of_professional_studies_program
and https://news.fordham.edu/business-and-economics/building-ties-in-china/.

(Exhibit J at p. 1) (emphasis added) (internet links in original).

39. Principal Deputy General Counsel Rubenstein continues:

Despite Fordham’s extensive international presence, a review of Department

records reveals that since 1986 . . . Fordham has disclosed only two qualifying
gifts, contracts, and/or restricted and conditional gift(s) or contract(s) with a
statutorily defined foreign source, pursuant to the requirements of Section 117, 20
U.S.C. § 1011(f). It is the Department’s experience that Fordham’s extensive
international operations are very likely concurrent with substantial foreign source
gifts and/or contracts, despite the dearth of disclosures by Fordham. As a result,
the Department is concerned that Fordham’s reporting may not fully capture all
qualifying gifts, contracts, and/or restricted and conditional gifts or contracts from
or with al foreign sources.

(Exhibit J at p. 2)

40. Demonstrating that Fordham’s shadowy ties to the PRC and the CCP are a clear

focus of the investigation, the August 10 DOE Letter seeks extensive discovery relating to this

5
Dunleavy, Jerry, “Stanford and Fordham swept up in Education Department investigation into Chinese influence,”
Washington Examiner (August 11, 2020) (https://www.washingtonexaminer.com/news/stanford-and-fordham-
swept-up-in-education-department-investigation-into-chinese-influence).

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relationship:

All records of, regarding, or referencing gifts, contracts, and/or restricted or

conditional gifts or contracts from, between, or with your Institution and (a) the
government of the PRC and/or its agencies, departments, agents, employees and
instrumentalities (whether domiciled in China, the United States, or elsewhere),
(b) the Chinese Communist Party, the Central Committee of the Communist Party
of China and/or their agents, employees, and instrumentalities (whether domiciled
in China, the United States, or elsewhere), and (d) any China-based university or
educational entity, and/or their agents, employees, and instrumentalities (whether
domiciled in China, the United States, or elsewhere).
(Exhibit J at p. 2)

41. Also noteworthy is that DOE’s records reflect only two reportable transactions

pursuant to 20 U.S.C. § 1011(f) disclosed by Fordham to DOE since 1986. Given Fordham’s

extensive ties to foreign governments and institutions, it is exceedingly unlikely that Fordham

only had two reportable transactions over the past four decades. This is further evidence that

Fordham as an institution has an ongoing problem with candor and credibility.

42. Moreover, there is no question that Fordham has deep ties to the People’s Republic

of China (the “PRC”) and its ruling party, the Chinese Communist Party (the “CCP”), as

Fordham itself has proudly touted the relationship for at least a decade.

43. For example, in an article entitled “Fordham and China Forge Lasting

Partnerships,”6 Fordham News proudly trumpeted,

Half a world away, China would seem a difficult place with which to forge close
and lasting partnerships. In fact, that is just what Fordham is doing. From
research collaborations to joint degree programs, Fordham has spent the last
several years partnering with universities in Beijing, Shanghai, Hong Kong, and
other areas.

44. Stephen Freedman, Ph.D., University provost stated the following:

Fordham has a deep, rich, and longstanding partnership with Peking University in
Beijing. This relationship has served as the foundation of our international initiatives in
China, where we offer critical programs to international students and opportunities for

6
Mercuri, Joanna, “Fordham and China Forge Lasting Partnerships,” Fordham News (January 17, 2013)
(https://news.fordham.edu/university-news/fordham-and-china-forge-lasting-partnerships-2/).

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faculty and students alike.7

45. In another Fordham News article entitled “Fordham Seals Ties With China

Partners,”8 the University proudly made this statement:

Top-level Fordham University educators met with their counterparts in China this
week to formally launch joint master’s programs at universities in Beijing and
Shanghai as part of Fordham’s continuing efforts to internationalize its curriculum
and create global opportunities for its business students.

46. Provost Freedman also boasted that “the trip strengthened the University’s ties with

major universities in China and paved the way for even more international learning opportunities

for Fordham Students . . . .”9

47. Lastly, but not least in importance, annexed hereto as Exhibit K are true and

accurate copies of the Fordham policies at issue, which were cited in footnoted links in the

Verified Petition, and also included in Respondents’ motion papers. These are the Mission

Statement,10 Demonstration Policy,11 Residential Life Handbook,12 University Code of

Conduct,13 Bias-Related Incidents and/or Hate Crimes,14 and Weapons Policy.15

7
Id.
8
Howe, Bob, “Fordham Seals Ties With China Partners,” Fordham News (June 9, 2010
(https://news.fordham.edu/university-news/fordham-seals-ties-with-china-partners/).
9
Id.
10
Mission Statement, FORDHAM UNIV., https://www.fordham.edu/info/20057/about/2997/mission_statement (last
visited September 11, 2020).
11
Demonstration Policy, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university_regulations/3709/demonstration_policy (last visited September 11,
2020).
12
Residential Life Handbook: Rose Hill, FORDHAM UNIV.,
https://www.fordham.edu/info/20422/living_on_campus_at_rose_hill/7140/residential_life_handbook_rose_hill (last
visited September 11, 2020).
13
The University Code of Conduct, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university_regulations/3693/the_university_code_of_conduct (last visited
September 11, 2020).
14
Bias-Related Incidents and/or Hate Crimes, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university_regulations/6566/bias-related_incidents_andor_hate_crimes (last
visited September 11, 2020).
15
Weapons, Ammunition, and Explosives, FORDHAM UNIV., https://www.fordham.edu/info/24226/a_-
_z_listing/9272/weapons_ammunition_and_explosives (last visited September 11, 2020).

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Conclusion

48. Eldredge is right about one thing: this is not a First Amendment case—and

Tong never contended anything to the contrary. However, the First Amendment is highly

relevant here because Fordham, through its policies, guaranteed Tong freedom of speech at least

as expansive as the First Amendment. Fordham has long held itself out as a bastion of free

speech. On the other hand, if, hypothetically, Fordham actually published a policy that

accurately reflected their imperious attitude towards speech, then the analysis would of course be

different. A hypothetical policy might leave Tong with little recourse if it stated the following:

(a) “we do not approve of pictures of firearms, even if legally owned,”

(b) “we do not approve of any opinions that could be construed by certain members of
our community as offensive and we will punish expression of such views,”
(c) “we do not permit posting certain historical references or image, including the
Gadsden flag or the words ‘Don’t tread on me,’” and
(d) “we reserve the right to enforce these policies anywhere in the universe at any time,
regardless of whether they have anything do with Fordham University or whether
they have any nexus to Fordham University.”

49. In fact, however, Respondents explicitly promised and guaranteed that they

embrace free expression, even if controversial and offensive, and that they support students’

right to engage in such expression. And one of the reasons that they do so is because their

relationship with the federal government and their receipt of billions of dollars of federal

taxpayer aid depends on it.

50. Yet, Respondents shamefully betrayed all of the virtues that Fordham supposedly

stands for when they imposed unlawful discipline against Tong.

51. For all of the foregoing reasons, I respectfully request that the Court deny

Respondents’ motion to dismiss and grant the following provisional relief:

(a) Preliminarily enjoining Respondents from imposing any disciplinary sanctions or

loss of Fordham University student privileges against Tong;
(b) Directing Respondents to promptly produce copies of all documents including but

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not limited to emails and other electronic communications, notes, records of

communications, and audio or video recordings, that relate to their decision to
impose disciplinary sanctions against Tong;
(c) Directing Respondents to promptly make available Respondent Keith Eldredge
for deposition; and
(d) Providing for such other and further relief as to this court shall seem just and
proper.

September 11, 2020

Brookville, New York

________________________
EDWARD PALTZIK

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