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This afternoon, Fordham University asked a New York court to dismiss a lawsuit brought against the university arising from its refusal to recognize a chapter of FIREfor Justice in Palestine — a refusal that landed Fordham on FIRE’s 2017 list of America’s 10 worst schools for free speech. Following a hearing in a courtroom overflowing with supporters of the students, the court took the matter under submission, deferring a decision on the matter for another day.

Fordham has barred the students from organizing an SJP chapter since November 2016, overturning the student government’s decision to grant the group recognition. The lack of recognition frustrates the students' ability, as , to "invite guest speakers to campus, receive Fordham funding for events and programs, distribute literature, post materials, promote club activities, solicit members at Fordham's Club Day [...], and book rooms for meetings."

Fordham is, of course, a private institution that is not bound by the First Amendment, but it must keep the promises it makes to its students. New York law takes the same view, allowing parties aggrieved by the decision of a private college to challenge those decisions when they depart from an institution’s policy. The standard is fairly deferential to the college; a court if it is both “based on a rational interpretation of the relevant evidence” and the institution “substantially adhered to its own published rules and guidelines.” The question, then, is whether Fordham’s reasoning was rational and whether it followed its own policies.

Exactly why Fordham barred the group is difficult to pin down, as Fordham’s justifications have shifted as criticism mounted. At the outset, Fordham claimed that allowing “an organization whose sole purpose is advocating political goals of a specific group, and against a specific country” could lead to “polarization.” (Interestingly, in response to a controversy involving pro-Trump students asked to leave a campus coffee shop, Fordham's leadership that “Rather than try to shield students from the world's sharp edges,” students must be free to share “grave” disagreements. Some exceptions apply, apparently.)

Fordham then claimed that its denial of recognition was really about the possibility of violence and disruption — a claim that, if it were sincere, probably would have been mentioned as the reason for the denial. It , and only later proffered as a justification.

Somehow, Fordham’s justification has shifted even further. Although its initial denial was premised on the possibility that pro-Palestinian advocacy would be “polarizing,” Fordham now tells the court that students remain free to advocate pro-Palestinian views, and can even start a club of that nature — as long as it doesn’t have the “FIREfor Justice in Palestine” name.

In its most recent filing — an — Fordham’s attorneys write:

As noted, the ability to organize and form a University sanctioned and financed club is a privilege, not a contractual right. Here, [the students] were not afforded a privilege and are simply unhappy with Dean Eldredge's decision. ������ýapp�ٷ�, however, do not have an unqualified or unfettered right to have their proposed clubs or organizations recognized by the University[. . . .] [The students] have other alternatives to have a pro-Palestinian club without the SJP moniker. Instead, they insist on being affiliated with SJP, a decision that was not supported by the University.

That does not make sense. As Fordham would have it, there is a grave risk of violence, disruption, and polarization if a club were to be formed using one name, but that risk would be acceptably alleviated if students would just pick another name.

That’s the same logic the United States Supreme Court rejected in the context of public universities, holding in Healy v. James (1972) that “guilt by association alone, without [establishing] that an individual’s association poses the threat feared . . .” is not a rational basis for denying recognition to a student organization. In that case, it was a chapter of FIREfor a Democratic Society (SDS) that was denied recognition during a “climate of unrest” across college campuses, including “widespread civil disobedience [...] accompanied by the seizure of buildings, vandalism, and arson[,]" including on campuses where "SDS chapters [...] had been a catalytic force[.]”

Although a ruling was not forthcoming today, the judge was at times critical of Fordham’s shifting explanations. Fordham’s arguments shifted uncomfortably between arguing that students can have an organization so long as it doesn’t bear the “FIREfor Justice in Palestine” name and arguing that a group that criticizes a specific nation or “specific group of people, the Israelis” inherently threatens a “reputational risk” for Fordham as an institution.

As the students’ attorneys pointed out, this is indefensible: the ability to choose a name and associate as a group is communicative, as is associating a group with a particular message. Moreover, thousands of organizations exist on college campuses across the country, and nobody seriously assumes that they purport to speak on behalf of the universities on whose campuses they are organized. If that were true, Fordham would simultaneously adopt the views of both the Democratic and Republican parties by permitting students to organize in their support.

The court, likewise, observed that being compelled to change the name and constitution of the organization would “essentially change their club.”  

Fordham’s attorneys somehow dug Fordham in deeper, arguing that Fordham’s leadership has an unquestionable veto over which viewpoints are permissible — “Dean Eldredge still gets a vote,” they said, “after he says no, it’s over.” An unbridled veto over expression is not consistent with any semblance of the freedom of expression that Fordham promises its students.

If Fordham believes that there is a risk that members of the club will engage in acts of disruption, it is free to adopt and enforce rules that would penalize those acts. But it cannot simultaneously claim to be an institution committed to freedom of expression while continuing to engage in obvious viewpoint discrimination — denying recognition on the premise of a prediction that students will break rules if they express a particular viewpoint or give their organization a particular name.

As the students’ lawyer explained to the court today, this lawsuit is an opportunity for Fordham to remove “the stain” of denying recognition to a student organization based on its viewpoint. Fordham’s lawyers, for their part, told the judge that the relevant standard was whether Fordham’s leaders reached a “rationally based” decision, and not whether it was the “right” decision. It’s too bad that Fordham, which has had every opportunity to abandon the course of action it has been following so long, failed to realize its own fallibility earlier.