Tong v. Fordham University

Summary

Austin Tong is a student at Fordham University. On June 3, 2020, Tong posted to his Instagram account a photograph of David Dorn, a Black police officer who was killed by looters in the unrest following George Floyd’s murder. The photo included the caption, “Ya’ll a bunch of hypocrites.” The following day Tong posted a photo of himself holding a legally purchased firearm with the caption “Don’t tread on me,” a reference to the Tiananmen Square massacre that had occurred 31 years previous to the day.

On June 8, Fordham University wrote to Tong, informing him that he was under investigation for the two photos. On July 14, the university handed down its verdict: Tong was found guilty of violating university policies proscribing “bias and/or hate crimes” and “threats/intimidation.” Tong’s probation banned him from physically visiting campus without prior approval, taking leadership roles in student organizations, and participating in athletics. He was also required to complete implicit bias training and write an apology letter.

On July 23, 2020, Tong filed a lawsuit against Fordham administrators seeking an Order of Judgment for relief from “all disciplinary sanctions or loss of Fordham student privileges” imposed by the defendants, pursuant to Article 78 and § 3001 of the Civil Practice Law and Rules. On August 20, the United States Department of Education formally announced that it was concerned that Fordham had broken its promises of free expression in the Tong case, which would expose the university to significant liability. In October, 2020, the New York Supreme Court dismissed Tong’s case.