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155646/2020
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

In the Matter of,

AUSTIN TONG,
Petitioner, Index No. 155646/2020
-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,
Respondent,

For a Judgment Pursuant to Article 78 and Section 3001

of the Civil Practice Law and Rules.

MEMORANDUM OF LAW IN FURTHER SUPPORT OF RESPONDENTS’

MOTION TO DISMISS PETITIONER’S VERIFIED PETITION
AND IN OPPOSITION TO PETITIONER’S REQUEST
FOR A PRELIMINARY INJUNCTION

James G Ryan, Esq.

Attorneys for Respondent
Cullen and Dykman LLP
100 Quentin Roosevelt Boulevard
Garden City, New York 11530
(516) 357-3750

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................ iii-iv

PRELIMINARY STATEMENT ................................................................................................ 1

ARGUMENT .............................................................................................................................. 3

STANDARD OF REVIEW ........................................................................................................ 3

POINT I ...................................................................................................................................... 4

THE DEPARTMENT OF EDUCATION’S INVESTIGATION IS OF NO MOMENT ........... 4

POINT II ..................................................................................................................................... 5

THE UNIVERSITY’S DECISION WAS MADE IN GOOD

FAITH AND WAS NEITHER ARBITRARY NOR CAPRICIOUS ......................................... 5

A. Dean Eldredge’s Decision Was Not Arbitrary.................................................... 5

i. Attacks on Dean Eldredge’s Integrity ..................................................... 6

ii. Context of Dean Eldredge’s Decision................................................... 11

B. Fordham Must Protect its Campus Community................................................ 13

POINT III .................................................................................................................................. 14

THE UNIVERSITY FOLLOWED ITS PUBLISHED POLICIES .......................................... 14

POINT IV.................................................................................................................................. 17

FATHER MCSHANE IS NOT A PROPER PARTY TO THIS PROCEEDING .................... 17

POINT V ................................................................................................................................... 18

PETITIONER IS NOT ENTITLED TO A PRELIMINARY INJUNCTION

OR EXPEDITED DISCOVERY .............................................................................................. 18

CONCLUSION ......................................................................................................................... 19

ii

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TABLE OF AUTHORITIES
Cases

Aryeh v. St. John’s University,

154 A.D.3d 747, 63 N.Y.S.3d 393 (2d Dept. 2017) ................................................................... 3

Awad v. Fordham Univ.,

64 Misc. 3d 1234(A), 117 N.Y.S.3d 800 (N.Y. Sup. Ct. 2019) ............................................... 16

Bilicki v. Syracuse Univ.,

67 Misc. 3d 1230(A) (N.Y. Sup. Ct. 2019) .............................................................................. 16

Carr v. St. John's University, New York,

17 A.D.2d 632, 231 N.Y.S.2d 410 (2d Dept. 1962), aff'd 12 N.Y.2d 802, 235 N.Y.S.2d 834
(1962) .......................................................................................................................................... 6

Coleman v. Hackley School,

251 A.D.2d 328, 673 N.Y.S.2d 732 (2d Dept. 1998) ................................................................. 6

Galiani v. Hofstra University,

118 A.D.2d 572, 499 N.Y.S.2d 182 (2d Dept. 1986) ................................................................. 6

Matter of Mitchell v New York Med. Coll.,

208 A.D.2d 929, 617 N.Y.S.2d 894 (2d Dept. 1994) ................................................................. 6

Regents of Univ. of California v. Superior Court,

4 Cal. 5th 607 (2018) ................................................................................................................ 13

Sempra Energy Trading Corp. v. BP Prods.,

52 A.D.3d 350, 860 N.Y.S.2d 71 (1st Dept. 2008)..................................................................... 4

Stapleton Studios, LLC v. City of New York,

7 A.D.3d 273, 776 N.Y.S.2d 46 (1st Dept. 2004)..................................................................... 19

Urquia v. Cuomo,
18 Misc. 3d 1110(A), 856 N.Y.S.2d 503 (N.Y. Sup. Ct. 2007) ............................................... 19

Zanett Lombardier, Ltd. v. Maslow,

29 A.D.3d 495, 815 N.Y.S.2d 547 (1st Dept. 2006)................................................................... 4
Statutes

CPLR § 3211(a)(1) ....................................................................................................................... 19

CPLR § 3211(a)(7) ....................................................................................................................... 19

CPLR § 7804................................................................................................................................... 4
iii

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N.Y. C.P.L.R. §7802 ..................................................................................................................... 18

iv

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PRELIMINARY STATEMENT

Respondents Fordham University (“Fordham” or the “University”), Joseph M. McShane

(“Father McShane”), and Keith Eldredge (“Dean Eldredge,” collectively “Respondents”)

respectfully submit this Memorandum of Law, the accompanying reply affidavit of Keith Eldredge

sworn to on September 21, 2020 (the “Eldredge Reply Affidavit” or “Eldredge Reply Aff.”), the

affidavit of John Vasek sworn to on September 21, 2020 (the “Vasek Affidavit”), and the

affirmation of Ryan Soebke dated September 21, 2020 (the “Soebke Affirmation”), in reply to the

opposition (the “Opposition”) of petitioner, Austin Tong (“Petitioner”) and in further support of

Respondents’ motion to dismiss the verified petition (the “Petition”) and in opposition to

Petitioner’s motion brought by order to show cause seeking a preliminary injunction.

The facts are not in dispute. On June 3, 2020, while a global discussion of the Black Lives

Matter movement was ongoing, Petitioner joined the discussion involving Fordham students by

posting a picture of slain retired police officer, Captain David Dorn, along with the caption “Y’all

a bunch of hypocrites.” That post led to an immediate backlash against Petitioner who described

the response as “overwhelmingly” negative. The next day, on June 4, 2020, Petitioner purchased

a semi-automatic rifle. He then posted a picture of himself brandishing the rifle with the caption

“Don’t tread on me.” The post also contained “#198964” and the emojis of the Chinese and

American flags. In response, numerous Fordham students contacted the University expressing

concern and fear regarding Petitioner’s June 4, 2020 post. That same evening, the University sent

two of its Public Safety Officers, John Vasek and William McSorley, to meet Petitioner at his

home in Westbury, New York. After a discussion with Petitioner, Mr. Vasek learned that he had

purchased the rifle that day. After meeting with Petitioner, the Public Safety Officers determined

that he was not an immediate threat to himself or the Fordham community at that time.

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Respondent Keith Eldredge, Assistant Vice President and Dean of Students at Fordham’s

Lincoln Center campus, then determined that, given the nature of the Instagram posts and the

potential risk that Petitioner posed to the Fordham community, Petitioner should appear before

him to address potential violations of the University Code of Conduct and University Regulations.

After a hearing on June 10, 2020, a thorough review of the evidence, and his own research into a

number of issues, Dean Eldredge found that Petitioner had violated the University Code of

Conduct and University Regulations. While mindful of the duty and obligation to keep the

Fordham community safe, Dean Eldredge was also aware that Fordham, like many, if not most,

colleges and universities in New York, would be offering a remote learning modality for the Fall

2020 semester due to the ongoing COVID-19 pandemic. Consequently, he directed Petitioner, who

is a senior, to complete his studies remotely and to participate in any extracurriculars remotely as

well. As seen in the accompanying Eldredge Reply Affidavit, this is not unique to Petitioner, as

most Fordham students are taking classes remotely this semester due to the COVID-19 pandemic.

Additionally, Petitioner is in fact permitted on campus but with the caveat that he must contact

Dean Eldredge’s office before doing so.

Petitioner’s Opposition sheds no new light on the facts. Rather, Petitioner and his counsel

raise a host of factually barren assertions to obfuscate Fordham’s absolute right to discipline a

student for a violation of University policy. This case is not, however, about free speech or gun

rights. This proceeding does not involve the First or Second Amendments to the U.S. Constitution.

It does not concern alleged conspiracies with the Chinese government. This case simply concerns

the reasonable, rational, and fair decision to take action against a potential threat to the safety of

the University by limiting Petitioner’s access to campus while ensuring that Petitioner was able to

complete his senior year at Fordham. To be clear, Petitioner does not claim that Fordham did not

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follow its policies and procedures. In fact, he concedes that it did so. He simply claims that

Fordham: (i) should not have leveled charges against him and (ii) that Fordham came to the wrong

decision. As seen throughout Fordham’s motion papers, Petitioner is incorrect because the decision

was made in the exercise of honest discretion based on the facts and cannot be said to be either

arbitrary or capricious. Consequently, as seen and as more fully set forth herein and in Fordham’s

moving papers, Petitioner’s claims must fail and therefore, his Petition should be dismissed in its

entirety.

ARGUMENT

STANDARD OF REVIEW

In his Opposition, Petitioner concedes that Fordham followed its established policies and

procedures in finding that Petitioner violated the University’s Code of Conduct and Regulations

and, as a result, imposing disciplinary sanctions on Petitioner. Opposition at p. 17. As such, the

only question before the Court is whether the University’s decision was arbitrary or capricious. It

is well settled in New York that courts have a “restricted role” in reviewing determinations of

colleges and universities. Aryeh v. St. John’s University, 154 A.D.3d 747, 63 N.Y.S.3d 393 (2d

Dept. 2017). “A determination will not be disturbed unless a school acts arbitrarily and not in the

exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive

that it shocks one's sense of fairness.” Powers v. St. John's Univ. Sch. of Law, 25 N.Y.3d 210, 216,

32 N.E.3d 371, 375 (2015); see also Aryeh, 63 N.Y.S.3d, 395 (2d Dept. 2017).

Contrary to Petitioner’s contention, courts may look beyond the petition to documentary

evidence when a party moves for judgment “dismissing one or more causes of action asserted

against him on the grounds that…the pleading fails to state a cause of action” under CPLR §

3211(a)(7). This Court is “not required to accept factual allegations that are contradicted by

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documentary evidence, or legal conclusions that are unsupportable in the face of undisputed facts.”

Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 495, 815 N.Y.S.2d 547 (1st Dept. 2006); see

e.g. Sempra Energy Trading Corp. v. BP Prods., 52 A.D.3d 350, 860 N.Y.S.2d 71 (1st Dept. 2008)

(dismissing claim where it was refuted by documentary evidence). This is true even in the context

of a motion to dismiss. Fordham recognizes that courts accord plaintiffs (or petitioners) every

favorable inference for the purpose of determining motions to dismiss. See e.g. Maas v. Cornell

Univ., 699 N.Y.S.2d 716, 718 (1999). Nevertheless, neither allegations consisting of bare legal

conclusions nor factual claims flatly contradicted by documentary evidence, however, are entitled

to “that arguendo advantage.” Id.

As will be discussed in detail below, the documentary evidence establishes that the

University acted in its honest discretion in finding that Petitioner violated the University’s Code

of Conduct and Regulations. As a result, the imposition of disciplinary sanctions on Petitioner was

proper under the circumstances. Finally, the balanced penalty imposed on Petitioner to allow him

to continue his studies remotely was not so severe to shock one’s sense of fairness. As such, the

Petition should therefore be dismissed pursuant to CPLR § 7804.

POINT I

THE DEPARTMENT OF EDUCATION’S INVESTIGATION IS OF NO MOMENT

Throughout his brief, Petitioner cites to two pending investigations by the United States

Department of Education (the “DOE”) related to Fordham. Opposition p. 11-12. Petitioner cites to

excerpts from two notice letters the University received from the DOE that Petitioner claims

provide evidence that Petitioner’s claims in his Petition have merit. Petitioner omits the fact that

the DOE has only just begun its investigations and has made absolutely no conclusive finding that

Fordham has committed any wrongdoing. In fact, as seen from the letter from Fordham’s counsel

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in response to the investigation concerning Tong, the University believes that the DOE does not

have jurisdiction over this matter until the Court issues its final judgment. See Eldredge Reply

Affidavit, Exhibit “B.” Further, it is clear from the text of the DOE’s notice letters to Fordham that

Petitioner and his counsel are actually participating in the DOE’s investigations and that these

investigations likely began at Petitioner’s behest. See Affidavit of Edward Paltzik, dated

September 11, 2020, Exhibits “E” and “J.” Petitioner cannot use a pending investigation in which

no determination has been made, and that was started at his own suggestion, to somehow further

bolster his case. The mere fact that such an investigation exists in its infancy is in no way

dispositive of the merits of Petitioner’s claims and should therefore be disregarded.

POINT II

THE UNIVERSITY’S DECISION WAS MADE IN GOOD

FAITH AND WAS NEITHER ARBITRARY NOR CAPRICIOUS

In an effort to make it seem as if Dean Eldredge’s decision was somehow arbitrary,

throughout his Opposition, Petitioner attempts to call into question the credibility of Dean

Eldredge while distorting facts and asserting numerous misstatements. As addressed in great detail

in the Eldredge Reply Affidavit, the personal insults leveled against Dean Eldredge are entirely

baseless. There is no question that Dean Eldredge made the decision to discipline Petitioner as a

result of his June 4, 2020 social media post depicting himself brandishing a semi-automatic

weapon in direct response to a wave of intense criticism he had been receiving for posting his

views on the Black Lives Matter movement just the day before, on June 3, 2020. The timing,

content, and context of the Instagram posts support Dean Eldredge’s decision.

A. Dean Eldredge’s Decision Was Not Arbitrary

As stated in Fordham’s moving brief, the University’s decision does not warrant judicial

intervention, and must not be disturbed, so long as it was “based upon the exercise of honest

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discretion after a full review of the operative facts.” Matter of Mitchell v New York Med. Coll.,

208 A.D.2d 929, 930, 617 N.Y.S.2d 894 (2d Dept. 1994); see also Coleman v. Hackley School,

251 A.D.2d 328, 329, 673 N.Y.S.2d 732, 732 (2d Dept. 1998) (decision to expel student based

upon the exercise of honest discretion after a full review of the operative facts was neither arbitrary

nor capricious so as to warrant judicial intervention); Galiani v. Hofstra University,118 A.D.2d

572, 499 N.Y.S.2d 182 (2d Dept. 1986); Carr v. St. John's University, New York, 17 A.D.2d 632,

634, 231 N.Y.S.2d 410, 414 (2d Dept. 1962), aff'd 12 N.Y.2d 802, 235 N.Y.S.2d 834 (1962)

(“When a university, in expelling a student, acts within its jurisdiction, not arbitrarily but in the

exercise of an honest discretion based on facts within its knowledge that justify the exercise of

discretion, a court may not review the exercise of its discretion”). Here, there is no question that

Dean Eldredge’s decision to discipline Petitioner was rational as Dean Eldredge took time to fully

review all of the relevant facts and circumstances after hearing from Petitioner himself. Petitioner’s

strained attempts to personally attack and discredit Dean Eldredge do nothing to change this fact.

i. Attacks on Dean Eldredge’s Integrity

As stated in the Vasek Affidavit, after meeting with Petitioner on the night of June 4, 2020,

Fordham’s Public Safety officers only determined that Petitioner did not pose an immediate threat.

Vasek Affidavit at ¶ 15. At no point did Fordham’s Public Safety officers ever express an opinion

as to whether Petitioner could possibly pose a threat to the Fordham campus community at a later

time.

Moreover, Dean Eldredge did not base his decision to discipline Petitioner on whether or

not he was a security threat on the night of June 4, 2020, but rather because he reasonably believed

that Petitioner presented a potential threat in the future. Additionally, Dean Eldredge found that

Petitioner had violated the University Code of Conduct and University Regulations relating to Bias

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and/or Hate Crimes. See Eldredge Reply Aff. at ¶ 8. In other words, the possibility that Petitioner

could present a security threat to the Fordham campus community did not end on the night of June

4, 2020. It would have been incredibly irresponsible of Dean Eldredge and Fordham to end the

inquiry at that point without conducting a thorough review of the facts and considering the context

of Petitioner’s actions. As Dean Eldredge notes, there have been numerous well publicized

tragedies where an assailant was not thought to be an immediate threat but wound up committing

horrific acts on a college or university campus. See id. Dean Eldredge simply determined that it

was in the best interest of the safety of Fordham’s campus community to restrict Petitioner’s access

to the campus.

Further, Petitioner’s claims about the reaction he received to his Instagram posts are

entirely disingenuous. Petitioner claims that Dean Eldredge was incorrect in stating that there was

an “overwhelmingly negative” reaction to his June 3, 2020 Instagram post containing an image of

retired police officer, Captain David Dorn, with the caption “Y’all a bunch of hypocrites” due to

the high percentage of “likes” he ultimately received on the post from third parties. Opposition at

p. 13. However, during Petitioner’s disciplinary hearing with Dean Eldredge on June 10, 2020,

Petitioner himself specifically admitted that the negative reaction to his Instagram posts was

“overwhelming” and estimated that 70% of the comments were negative. See Eldredge Reply Aff.

at ¶ 11.

Moreover, a review of the comments on Petitioner’s June 3, 2020 and June 4, 2020

Instagram posts makes clear that Petitioner initially received nearly entirely negative comments.

For example, on Petitioner’s June 3, 2020 post, one commenter wrote that Petitioner’s post was

“really tone deaf and ignorant.” See Soebke Affirmation, Exhibit “A.” Another commenter also

stated that “[a]s a fellow student, I find it truly disheartening to see this post in light of recent

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events and quite frankly your recent posts in general.” Id. Further, Petitioner received an almost

entirely negative reaction to his June 4, 2020 Instagram post with many commenters expressing

fear and concern. A number of commenters tagged Fordham’s various Instagram accounts calling

for the University to take action. Specifically, one user tagged Fordham and stated, “IT IS YOUR

RESPONSIBILITY TO RESPOND TO THIS!!!” See Soebke Affirmation, Exhibit “B.” Another

commenter, tagged a Fordham account and wrote “STUDENTS DONT [sic] FEEL

COMFORTABLE RETURNING TO A CAMPUS WHERE STUDENTS THREATEN OTHERS

WITH GUNS FOR HAVING DIFFERENT OPINIONS.” Id. These comments are just a few of

the many negative reactions Petitioner received to both his June 3, 2020 and June 4, 2020

Instagram posts.

In addition, Petitioner deliberately ignores the fact that the majority of favorable “likes” he

received came from unassociated third parties who have no connection to Fordham and only

discovered Petitioner’s post after his self-created media frenzy. Simply put, Petitioner’s claim that

the reactions to his post were largely positive is entirely misleading from both a timing and

constituency perspective. The fact is that Petitioner only began to receive some positive reactions

to his June 4, 2020 post from outside the Fordham community only after creating a targeted media

campaign to drum up support from non-Fordham students who agree with his political views. See

Eldredge Reply Aff. at ¶ 12.

Notwithstanding, the fact remains that Fordham received numerous complaints from its

students who expressed concern about Petitioner, his social media posts, and the safety of the

Fordham community. See Eldredge Reply Aff. at ¶ 13. As explained in detail below and in its

moving papers, the health, safety and well-being of the Fordham community is paramount and

Fordham has a duty to ensure the safety of its campus community, most importantly its students.

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Petitioner attempts to diminish the complaints Fordham received from his fellow students by

claiming that he is protected by Fordham’s policy regarding Bias-Related Incidents and/or Hate

Crimes which states that speech that is merely “offensive or inflammatory” does not violate

Fordham’s policy. Opposition at p. 18-19. However, Dean Eldredge reasonably believed that

Petitioner’s June 4, 2020 Instagram post went well beyond “offensive or inflammatory” comments

and was instead meant to threaten or intimidate those who disagreed with Petitioner’s prior June

3, 2020 Instagram post. See Eldredge Reply Aff. at ¶ 13. Dean Eldredge arrived at this conclusion

after a thorough review of the relevant timing, content, and context of the Instagram posts, which

Petitioner has continuously ignored.

Petitioner also suggests that Dean Eldredge should have afforded more weight to the

positive reactions he received on his posts and not focused so much on the negative comments and

complaints. Opposition at p. 13, 19. Petitioner’s claims in this regard are misguided for multiple

reasons. First, and most importantly, Petitioner did not just receive negative comments from

Fordham students on his post; the post generated action by its Fordham viewers. Specifically,

Fordham students were so disturbed by Petitioner’s posts that they sent numerous complaints to

the University expressing fear of Petitioner. See Affidavit of Keith Eldredge sworn to August 13,

2020 (the “Eldredge Aff.”), Exhibits “H” and “I.” Further, as mentioned above, nearly all of the

positive reaction Petitioner received to his June 3, 2020 and June 4, 2020 Instagram posts came

after he began his media campaign following Dean Eldredge’s decision to discipline him. See

Eldredge Reply Aff. at ¶ 14. Conversely, the emails Fordham received from students expressing

concern and fear came before Petitioner’s disciplinary proceeding before Dean Eldredge. Id.

Fordham did not receive any similarly contemporaneous emails from Fordham students supporting

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Petitioner. Id. Thus, the positive third-party reactions to his Instagram posts to which Petitioner

constantly refers are irrelevant in examining whether Dean Eldredge’s decision was arbitrary.

Petitioner further seeks to minimize the effect of his actions by claiming that Dean

Eldredge should not have considered the complaints from Fordham students expressing fears over

Petitioner’s post because no students were on Fordham’s campus at the time of his post. 1

Opposition at p. 14, 19. In essence, Petitioner contends that he, or any other member of the

Fordham community, should be permitted to make threats towards other students so long as the

parties involved are not physically on Fordham’s campus. Such a claim is disturbing and only

further serves to support Dean Eldredge’s decision to limit Petitioner’s access to campus as he

clearly has no regard for the safety of members of the Fordham community.

Petitioner also contends that Dean Eldredge should not have inquired about Petitioner’s

interest in Tiananmen Square. Petitioner is incorrect. Dean Eldredge’s questions to Petitioner

during his disciplinary hearing regarding whether Petitioner had previously posted about

Tiananmen Square were entirely relevant and actually very insightful into Petitioner’s motivation

for his June 4, 2020 post. Petitioner asserts that Dean Eldredge’s question implied that his concerns

about Tiananmen Square would only be legitimate if he posted about it more regularly. Petitioner

misses the point of the inquiry. The question was meant to uncover whether Petitioner’s June 4,

2020 post depicting himself with a rifle with the caption “Don’t tread on me” was solely meant to

commemorate the anniversary of the Tiananmen Square massacre as Petitioner asserted or if it was

actually designed also as a veiled threat to those who disagreed with his prior post Instagram post

1
Petitioner’s claim that he was unaware of any of the complaints from Fordham students regarding his post until the
start of this litigation defies logic. Opposition at p. 16-17. As stated in the Vasek Affidavit, Fordham’s Public Safety
officers visited Petitioner at his home to discuss Petitioner’s social media posts and the concerns raised by other
students. Vasek Affidavit at ¶ 6-12. Further, during Petitioner’s disciplinary hearing on June 10, 2020, Dean Eldredge
specifically told Petitioner that multiple students contacted the University and expressed concern over his post.
Eldredge Reply Aff. at ¶ 16.

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on June 3, 2020 (regarding the Black Lives Matter movement). See Eldredge Reply Aff. at ¶ 17.

If Petitioner had a number of prior posts related to the Tiananmen Square incident, this obviously

would have lent support to Petitioner’s claims. However, Petitioner was unable to identify or

produce any prior posts about Tiananmen Square. Dean Eldredge similarly could not locate an

such posts. See Eldredge Reply Aff. at ¶ 18. Thus, it is clear that Dean Eldredge’s question was

relevant as it was very telling that Petitioner could not recall or specify an instance when he had

posted about Tiananmen Square previously.

Petitioner also claims that Dean Eldredge failed to identify any “specific person, group,

organization, location, or thing that Tong threatened.” Opposition at p. 13. In his August 13, 2020

Affidavit, Dean Eldredge specifically stated that after reviewing all of the facts related to

Petitioner’s social media posts, he concluded that Petitioner’s June 4, 2020 Instagram post was

intended to intimidate those Fordham students who disagreed with his June 3, 2020 post. See

Eldredge Aff. at ¶ 58. As such, it is obvious that Dean Eldredge identified the group of people

Petitioner was threatening as those students who disagreed with his June 3, 2020 post.

ii. Context of Dean Eldredge’s Decision

As explained by Dean Eldredge in his Reply Affidavit, context was very important in his

analysis of the relevant facts and his ultimate decision to discipline Petitioner. Dean Eldredge

considered how, when, and why Petitioner posted an image of himself with a semi-automatic

weapon. See Eldredge Reply Aff. at ¶ 21. To be clear, Dean Eldredge did not arrive at his decision

merely because Petitioner posted a picture of himself with a semi-automatic weapon. If Petitioner

had posted an image of himself holding a gun while hunting, that obviously would not have raised

concern or warranted Fordham to take disciplinary action. See Eldredge Reply Aff. at ¶ 21.

However, Dean Eldredge reasonably believed that Petitioner’s June 4, 2020 post was in direct

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response to those who disagreed with his June 3, 2020 post given the timing and tone of Petitioner’s

June 4, 2020 post. See id.

Dean Eldredge’s reference to prior school shooting incidents was also included to provide

additional context to his decision. In his Opposition, Petitioner claims that Dean Eldredge could

not have truly believed he was capable of committing a similar act because Fordham did not take

immediate disciplinary action against him. Opposition at p. 13-14. In doing so, Petitioner ignores

the fact that Public Safety Officers were sent to check on Petitioner within hours after he made his

Instagram post. See generally Vasek Affidavit. Although Fordham’s Public Safety Officers

determined that Petitioner did not present an immediate threat, Dean Eldredge still had a duty to

investigate the issue further and determine whether he reasonably believed that Petitioner could

constitute a threat in the future. See Eldredge Reply Aff. at ¶ 22. As noted by Dean Eldredge, there

are a number of prior examples where horrific incidents do not occur on college or university

campuses in the heat of the moment, but rather occur weeks or months later. See id. Therefore, it

was entirely appropriate for Dean Eldredge to take time to assess the situation completely,

including conducting a hearing with Petitioner, before deciding to issue disciplinary sanctions.

Ironically, Petitioner then argues that the discipline imposed by Dean Eldredge is actually

too lenient. Opposition at p. 13-14. Petitioner claims that Fordham’s decision to allow him to

participate in extracurricular activities proves that the University does not truly believe he is a

threat. Petitioner again ignores the fact that this decision was made for his benefit in an effort to

balance the safety of the campus community while allowing Petitioner to continue his education

remotely at Fordham. See Eldredge Reply Aff. at ¶ 22. To be clear, Petitioner’s access to campus

is restricted but he is allowed to participate in classes and extracurricular activities remotely.

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Nothing about this aspect of Dean Eldredge’s decision does anything to refute the fact that

Fordham still considered Petitioner to be a potential threat to campus safety.

As such, there is no question that Dean Eldredge’s decision was rational and made in the

exercise of honest discretion.

B. Fordham Must Protect its Campus Community

Petitioner’s assertions that Fordham did not have a duty to protect its campus community

because the students involved in this matter were not on Fordham’s campus at the time of

Petitioner’s June 4, 2020 Instagram post are as troubling as they are meritless. In his Opposition,

Petitioner concludes that because there were no students on Fordham’s campus at the time of

Petitioner’s June 4, 2020 post, Petitioner could not have possibly been a threat to anyone.

Opposition at p. 15. Dean Eldredge has made clear throughout this litigation that his decision to

discipline Petitioner was not because Petitioner presented an immediate threat, but because he

reasonably believed Petitioner constituted a potential threat in the future. See Eldredge Reply Aff.

at ¶ 34. Petitioner also ignores the fact that safety was not the only reason Dean Eldredge decided

to discipline Petitioner as Dean Eldredge also found that Petitioner violated the University Code

of Conduct and University Regulations as he reasonably believed Petitioner had intended to

threaten and intimidate fellow Fordham students who disagreed with him. See Eldredge Reply Aff.

at ¶ 4.

Petitioner’s arguments in support of his claim that Fordham was not under an obligation to

protect its campus and those in its campus community make little logical sense. Petitioner argues

that Regents of Univ. of California v. Superior Court, 4 Cal. 5th 607, 625 (2018) is irrelevant

because Fordham students were not “engaged in activities that are part of the school’s curriculum

or closely related to educational services” at the time of Petitioner’s post. Opposition at p. 15.

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Again, Petitioner omits the fact that Dean Eldredge has clearly articulated that he reasonably

believed that Petitioner could pose a security threat in the future at a time when Fordham students

and faculty would be back on campus.

Petitioner also claims that he gave “no indication” that he ever intended to “or was even

capable of causing harm to anyone in the Fordham community.” Opposition at p. 16. Again,

Petitioner ignores obvious facts. There is no question that Petitioner owns a semi-automatic

weapon that he clearly displayed in his June 4, 2020 Instagram post. Thus, Petitioner has the means

to be “capable” of causing harm to others. Moreover, Petitioner’s June 4, 2020 post of himself

holding his semi-automatic weapon included the caption “Don’t tread on me.” Dean Eldredge

reasonably interpreted this caption to constitute a threat to those who “treaded” on Petitioner,

including the students who disagreed with his June 3, 2020 post. Consequently, Petitioner’s

statement that he provided no indication that he was capable of causing harm to others is simply

divorced from reality.

The safety of those in the Fordham campus community will always be Fordham’s primary

concern. Consequently, as stated by Dean Eldredge in his reply affidavit, when faced with a student

brandishing a semi-automatic weapon in response to criticism from his fellow students, the

University will always err on the side of safety. See Eldredge Reply Aff. at ¶ 5.

POINT III

THE UNIVERSITY FOLLOWED ITS PUBLISHED POLICIES

Petitioner likewise fails to make a coherent argument that Fordham failed to follow its

policies and procedures in disciplining Petitioner. As explained in detail in Fordham’s moving

papers and as admitted by Petitioner in his Opposition, Fordham followed all of its policies and

procedures related to student discipline. Opposition at p. 17. Petitioner nevertheless argues that

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Fordham’s references to the various sections of the University Code of Conduct and University

Regulations that Petitioner was charged with violating was somehow “awkward.” Opposition at p.

18. As stated in Fordham’s moving papers, Dean Eldredge determined that Petitioner violated

Section “6” of the University Code of Conduct which prohibits “[p]hysical abuse, sexual abuse,

threats, intimidation, coercion, and/or other conduct which threatens or endangers the health

or safety of any person” (emphasis added) and the University Regulations relating to Bias and/or

Hate Crimes. See Eldredge Affidavit, Exhibit L. As explained in detail above and in Fordham’s

moving papers, this decision was clearly rational given the context and circumstances surrounding

Petitioner’s June 4, 2020 post. Petitioner provides no support for his contention that he should not

have been disciplined for violating Fordham’s University Code of Conduct or University

Regulations except for his wholly subjective assertion that he did not intend to threaten or

intimidate his fellow students. Such conclusory assertions are wholly insufficient to prove that

Fordham somehow did not follow its policies and procedures.

Petitioner creates a free speech argument to mask the fact that his conduct was at issue, not

his speech. Petitioner’s contention that Fordham’s free speech policies are “at least as expansive

as the First Amendment” is both a red herring and incorrect. Opposition at p. 20. As explained in

its moving papers, Fordham’s policies related to free expression are clearly limited by the

University Code of Conduct. Specifically, the University Code of Conduct prohibits students from

engaging in “[p]hysical abuse, sexual abuse, threats, intimidation, coercion, and/or other conduct

which threatens or endangers the health or safety of any person” under Section “6.” See Eldredge

Aff. at ¶ 9. Further, as Petitioner admits and concedes, Fordham is not a public university and is

therefore not subject to First Amendment jurisprudence. Opposition at p. 20.

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Petitioner’s contention that Fordham’s Mission Statement prevents Fordham from

disciplining Petitioner because his political positions are controversial again misses the point.

Opposition at p. 22. Petitioner was not disciplined because of his opinions. Petitioner was

disciplined because of his conduct; he violated the University Code of Conduct and University

Regulations in addition to threatening campus safety by posting a picture of himself with a semi-

automatic rifle that was meant to intimidate those who disagree with him. This was not simply a

matter of “controversial” speech, as Petitioner puts it. Petitioner made a threat and was properly

disciplined for that conduct.

In addition, Petitioner’s attempts to distinguish Bilicki v. Syracuse Univ., 67 Misc. 3d

1230(A) (N.Y. Sup. Ct. 2019) are meritless. Petitioner claims that his threat was different from

that of the student in Bilicki because the student there used “explicit profanity and threat-laden

language.” Opposition at p. 23. In doing so, Petitioner argues that because his threat was not as

striking as the petitioner in Bilicki’s language, Petitioner herein should not have been disciplined.

Petitioner’s position is non-sensical. Simply because Petitioner did not use vulgar or profane

language does not mean he could not have made a threat. This is not an action movie where both

the hero and villain exchange vulgarities. This is real life. Petitioner posted an image of himself

with a semi-automatic rifle along with the caption “Don’t tread on me” mere hours after receiving

a wave of criticism from fellow students. Thus, it is entirely reasonable for Petitioner’s post to be

seen as threatening despite Petitioner not using profane language.

Finally, Petitioner’s references to Awad v. Fordham Univ., 64 Misc. 3d 1234(A), 117

N.Y.S.3d 800 (N.Y. Sup. Ct. 2019) are misplaced. That matter, which is currently on appeal,

involved a group of students’ challenge to Dean Eldredge’s decision to deny their proposed student

club official club status by the University. See id. In that case, petitioners indicated that Fordham

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did not follow its published policies for establishing a student club. See id. Here, Petitioner

concedes that Fordham followed its policies which led to his disciplinary sanctions. Fordham’s

policies and procedures related to student club applications are obviously entirely different than

those related to the University Code of Conduct and student discipline. Further, Petitioner’s

reference to the Awad court’s reference to Dean Eldredge’s consideration of possible

“polarization” in that matter is completely irrelevant here. Opposition at p. 20. As should be

obvious, Dean Eldredge never considered possible “polarization” in this matter nor has Fordham

used the term “polarization” at any point in regard to Petitioner. Finally, Awad involved whether

or not Fordham should be compelled to provide University support and funding to a proposed

student group and did not involve threats by one student to other students. Petitioner is simply

trying to adopt the arguments from an unrelated, irrelevant situation to bolster his meritless case.

POINT IV

FATHER MCSHANE IS NOT A PROPER PARTY TO THIS PROCEEDING

Petitioner’s desperate attempt to argue that Father McShane is a proper party to this

proceeding must also fail. Petitioner cites to the fact that the DOE chose to address its letters to

Fordham to Father McShane. Again, the DOE’s pending investigation, which began in August

2020 and in which no determination has been made in no way impacts or is dispositive upon

Petitioner’s claims in this proceeding. Moreover, who the DOE chose to address its letters to in no

way provides Petitioner with a basis to assert a claim against Father McShane in an Article 78

petition. Petitioner also cites to past comments by Father McShane that are wholly unrelated to

this matter. Opposition at p. 24-25. Comments Father McShane made in 2012, well before

Petitioner was even enrolled at Fordham, provide Petitioner with absolutely no basis to include

Father McShane as a Respondent in this proceeding.

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Simply put, Petitioner has not identified any direct involvement by Father McShane in the

decision to discipline Petitioner. Petitioner has not alleged that Father McShane was at all involved

in the decision to charge Petitioner with violations of the University Code of Conduct and

University Regulations nor has Petitioner alleged that Father McShane was involved in Petitioner’s

disciplinary process or the decision to issue him sanctions. As such, Petitioner has in no way

established that Father McShane is a “court, tribunal, board, corporation, officer, or other person,

or aggregation of persons, whose action may be affected by a proceeding” as is required under

Article 78. N.Y. C.P.L.R. §7802. Because Father McShane was not involved in Petitioner’s

disciplinary proceeding, he is not a proper party to this proceeding.

POINT V

PETITIONER IS NOT ENTITLED TO A PRELIMINARY INJUNCTION OR

EXPEDITED DISCOVERY

Finally, Petitioner’s requests for a preliminary injunction and expedited discovery must

also be denied. As explained in Fordham’s moving papers Petitioner has failed to show entitlement

to a preliminary injunction. Fordham has clearly shown that it is likely to succeed on the merits

and that the Petition will ultimately be dismissed in its entirety. Petitioner has wholly failed to

allege any irreparable injury that he will suffer absent an injunction. Instead, in his Opposition,

Petitioner merely states that “he stands to lose his entire academic future and potentially his

professional future.” Opposition at p. 26. However, as explained throughout this proceeding,

Petitioner is still free to continue his academic pursuits (and his involvement in extracurricular

activities or functions) uninterrupted in a remote capacity. Moreover, the July 31, 2020 stipulation

agreed to by the parties clearly states that Fordham will not impose additional sanctions on

Petitioner for failure to comply with the bias training or apology letter portions of his disciplinary

sanctions until this matter has concluded in its favor. See NYSCEF Docket Entry 12. Further, the

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equities balance in Fordham’s favor as enjoining enforcement of Petitioner’s disciplinary sanctions

will jeopardize the safety of the Fordham campus community because Petitioner will have

unfettered access to campus. As such, Petitioner has failed to show entitlement to a preliminary

injunction.

Petitioner’s claim for expedited discovery is also improper. Discovery in an Article 78

proceeding is only available by leave of court. Stapleton Studios, LLC v. City of New York, 7

A.D.3d 273, 275, 776 N.Y.S.2d 46, 47 (1st Dept. 2004). Leave to conduct discovery in an Article

78 proceeding should not be granted :absent a showing that the discovery sought was likely to be

material and necessary.” Id. Moreover, this Court has held that where the issues raised in an Article

78 proceeding are determinable on the papers and the law, leave to conduct discovery will not be

granted. See Urquia v. Cuomo, 18 Misc. 3d 1110(A), 856 N.Y.S.2d 503 (N.Y. Sup. Ct. 2007).

Here, it is clear that Fordham has presented testimonial and documentary evidence to

confirm that its decision to discipline Petitioner due to his June 4, 2020 social media post depicting

himself holding a semi-automatic weapon in an attempt to threaten and intimidate other students

was reasonable and made in the exercise of sound discretion. Further, Fordham has already

provided this Court (and Petitioner) with the documents related to Dean Eldredge’s decision

making and an affidavit from Fordham’s Public Safety Officer regarding his interview with

Petitioner. Thus, Petitioner’s request for expedited discovery should be denied.

CONCLUSION

For the foregoing reasons, the Petition should be dismissed in its entirety pursuant to CPLR

§ 3211(a)(7) and CPLR § 3211(a)(1). In the alternative, Respondent Joseph M. McShane should

be dismissed as a respondent in this action, and Petitioner’s motion for a preliminary injunction

should be denied, together with such other relief as this Court deems just and proper. In the event

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the Court denies the motion in whole or in part, the University should be permitted to answer the

petition pursuant to CPLR § 7804(f).

Dated: September 21, 2020

Garden City, New York

Respectfully submitted,

CULLEN AND DYKMAN LLP

/s/James G. Ryan __________________

James G. Ryan, Esq.
Attorneys for Respondents
100 Quentin Roosevelt Blvd
Garden City, New York 11530
Phone: (516) 357 – 3750
Fax: (516) 357 – 3792
Email: jryan@cullenllp.com

Of Counsel:
James G. Ryan, Esq.
Ryan Soebke, Esq.

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