Austin Tong Has Done Nothing Wrong

A copy of the Constitution of the United States


While Fordham is a private institution, it accepts federal funding, and in exchange, voluntarily subjects itself to federal rules and regulations.

By Judge John H. Wilson

I graduated from Fordham College at Rose Hill in 1983 with a bachelor’s degree in philosophy and political science. After graduating from Pace Law School in 1986, I was admitted to the Bar in New Jersey in 1986 and New York in 1987.  

In 2004, I was elected to the Civil Court, Bronx County, and assigned to serve in the Criminal Court. I sat in both Brooklyn and the Bronx. Currently, I work as a mediator for a private company called First Court, where I work to resolve personal injury matters.

I provide you, the reader, with this description of my background in an effort to establish my qualifications to make the statements that follow.

I have reviewed with great interest the case of Austin Tong, Gabelli School of Business at Lincoln Center ’21, who was disciplined by Dean Keith Eldredge for posting a series of photos on social media: one commemorating a murdered police officer and another of himself, holding a rifle. Members of the Fordham community complained that Tong’s posts made them feel “unsafe.”

I have also read the article published by Gabriela Rivera in The Fordham Observer on July 29, 2020, regarding her views on the Tong matter.

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.

In her article, Rivera states that “(t)he Constitution, while we believe it is always intact and applicable to every point in our life, loses its power in non-public spaces like Fordham.” 

Yet, while Fordham is ostensibly a private institution, it does accept federal funding, in exchange for which it voluntarily subjects itself to federal rules and regulations, such as Title IX of the Civil Rights Act of 1964, Education Amendment of 1972, “which protects students from discrimination in housing, athletics, and access to facilities on the basis of such things as gender, sexual orientation, sex or pregnancy outside marriage, or having an abortion.” 

Very few schools can claim exemption from federal law — almost all that do are religious institutions, and only “if they can show they are controlled by religious organizations with whose beliefs Title IX requirements conflict,” according to The Atlantic.  

In 1969, the U.S. Supreme Court decided the case of Tinker v. Des Moines. The principal of a public school tried to stop students from wearing black armbands in protest of the Vietnam War. The case eventually reached the Supreme Court, which stated that both students and teachers did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

Justice Abe Fortas went on to add that the law “protects the citizen against the State itself and all of its creatures—Boards of Education not excepted … they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

This landmark case remains the law of the land to this day. In fact, the American Civil Liberties Union (ACLU) continues to bring cases against schools that violate the free speech rights of their students. 

Thus, despite being a private institution, Fordham’s right to punish Tong for the free exercise of his constitutional rights off campus is not absolute.

The ACLU even states that, “You have the right to speak your mind on social media, and your school cannot punish you for content you post off campus and outside of school hours that does not relate to school.” 

Thus, despite being a private institution, Fordham’s right to punish Tong for the free exercise of his constitutional rights off campus is not absolute.

Further, there can be no doubt that Tong was punished for the content of his speech. This is the fundamental reason our founding fathers incorporated the First Amendment into the United States Constitution to allow for divergent opinions. Tong has the same right to speak out that any other citizen has, no matter the content of his speech.

That being said, free speech is never absolute. In the 1919 U.S. Supreme Court decision Schenck v. United States, Justice Oliver Wendell Holmes gave his famous warning: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” 

Yet Tong has not “falsely shouted” anything that would “cause a panic.” He merely celebrated his right to bear arms under the Second Amendment, a right he did not possess in China, by exercising his First Amendment right to express his opinion.

Frankly, Rivera’s position is a “clear and present danger,” which is another quoted warning from the Schenck case. Her view would censor Tong and any other person who wishes to express a view contrary to that held by the majority. Most insidious, her concern that she “wouldn’t feel safe knowing someone I see in the hall has the means to commit violence … (b)y posing with the gun and spouting praise for the right to be armed” has no basis in law or fact. 

All legal gun owners have the “means to commit violence” — this is the very purpose for which these persons own guns! 

Rivera has also failed to differentiate between a legal gun owner and a criminal. A legal gun owner is exercising their right to bear arms, a right which is subject to regulation from both federal and local authorities. 

More likely than not, a legal gun owner has training in the use of a firearm and has learned discretion in the safe handling of a weapon. A criminal has no such training or discretion. Who is more likely to bring a gun on campus and threaten students — a criminal, or a legal gun owner? Common sense tells you it’s the criminal.

How Rivera, and no doubt other Fordham students, have become opponents of our Constitutional rights is beyond the space I have available here to discuss. But suffice it to say, there can be little doubt that the decision of Dean Keith Eldredge should be reversed quickly and Tong returned to his place among his fellow students — whether they agree with him or not.