INDEX NO. 153826/2017

FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

RECEIVED NYSCEF: 11/02/2017

Motion Sequence #3
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________________________________________
In the Matter of,
AHMAD AWAD, SOFIA DADAP, SAPPHIRA
LURIE, and JULIE NORRIS,

Index No. 153826/2017

Petitioners,
-againstFORDHAM UNIVERSITY,

Hon. Nancy M. Bannon

Respondent,
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
____________________________________________

PETITIONERS’ MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION FOR A PRELIMINARY INJUNCTION
AND EXPEDITED DISCOVERY

1 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

TABLE OF CONTENTS
Page
TABLE OFAUTHORITIES ....................................................................................................... ii
PRELIMINARY STATEMENT ................................................................................................. 1
STATEMENT OF FACTS ......................................................................................................... 2
Fordham’s Rules and Policies on Freedom of Expression ........................................... 3
Fordham’s Veto of USG’s approval of SJP .................................................................. 4
ARGUMENT .............................................................................................................................. 6
I.

PETITIONERS ARE ENTITLED TO A PRELIMINARY INJUNCTION................. 6
A.

II.

PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS
ON THE MERITS BECAUSE FORDHAM ACTED ARBITRARILY AND
CAPRICIOUSLY BY VIOLATING ITS POLICIES AND RENDERING A
DECISION THAT WAS WITHOUT FOUNDATION IN FACT AND
CONTRADICTED BY THE EVIDENCE. ............................................................ 7
1.

Fordham violated its own policies and procedures. ....................................... 9

2.

The reasons given by Fordham for its decision lacked a rational factual
basis.............................................................................................................. 12

B.

PETITIONERS WILL BE IRREPARABLY HARMED BEFORE A
DECISION ON THE MERITS CAN BE RENDERED UNLESS THE
COURT ISSUES A PRELIMINARY INJUNCTION. ......................................... 14

C.

A WEIGHING OF THE EQUITIES FAVORS PETITIONERS’ POSITION. .... 16

PETITIONERS HAVE A RIGHT TO LIMITED DISCOVERY IN
CONNECTION WITH THEIR MOTION FOR PRELIMINARY RELIEF. ............. 17

CONCLUSION ......................................................................................................................... 18

i
2 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

TABLE OF AUTHORITIES
Cases
Bachellar v. Maryland, 397 U.S. 564 (1970) ............................................................................... 10
Barbour v. Knecht, 296 A.D.2d 218 (1st Dep’t 2002) .................................................................. 14
Basile v. Albany Coll. of Pharm. of Union Univ., 279 A.D.2d 770 (3d Dep’t 2001) ................... 13
Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290 (1981) ..... 9
D.F. v. Gladys Carrion, 43 Misc.3d 746 (Sup. Ct. N.Y. Cnty. 2014) .......................................... 13
Elrod v. Burns, 427 U.S. 347 (1976) ...................................................................................... 15, 16
Gerber Prods. Co. v. New York State Dep't of Health, 47 Misc.3d 249 (Sup. Ct. Albany
Cnty. 2014) ................................................................................................................................ 17
Gray v. Canisius Coll. of Buffalo, 76 A.D.2d 30 (4th Dep’t 1980) .............................................. 14
Healy v. James, 408 U.S. 169 (1972) .......................................................................................... 13
Jamaica Chamber of Commerce v. Metro. Transp. Auth., 159 Misc.2d 601 (Sup. Ct. Queens
Cnty. 1993) .................................................................................................................................. 7
Kallini v. N. Y. Inst. of Tech., 34 Misc.3d 1211(A) (Sup. Ct. N.Y. Cnty. 2012) ............................ 8
Kickertz v. N. Y. Univ., 110 A.D.3d 268 (1st Dep’t 2013).............................................................. 8
Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 A.D.2d 631 (2d Dep’t 1992) ............. 14
Lee v. New York City Dep't of Hous. Pres. & Dev., 162 Misc.2d 901 (Sup. Ct. N.Y. Cnty.
1994)............................................................................................................................................ 7
Levine v. Feldman, 215 A.D.2d 182 (1st Dep’t 1995) .................................................................. 17
Matal v. Tam, 137 S. Ct. 1744 (2017) ......................................................................................... 11
Melvin v. Union Coll., 195 A.D.2d 447 (2d Dep’t 1993) ......................................................... 6, 15
Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 70 A.D.2d 1021 (3d Dep’t
1979)............................................................................................................................................ 7
Nespoli v. Doherty, 17 Misc.3d 1117(A) (Sup. Ct. N.Y. Cnty. 2007) .......................................... 17
Olsson v. Bd. of Higher Education, 49 N.Y.2d 408 (1980) .......................................................... 14

ii
3 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

Pell v. Bd. of Education, 34 N.Y.2d 222 (1974) ............................................................... 12, 13, 14
Riccelli Enters., Inc. v. State of New York Workers' Compensation Bd., 117 A.D.3d 1438
(4th Dep’t 2014) ...................................................................................................................... 6, 7
Rizvi v. N. Y. Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 A.D.3d 1049 (2d
Dep’t 2012) ....................................................................................................................... 8, 9, 12
Rockwell v. Morris, 12 A.D.2d 272 (1st Dep’t 1961) ................................................................... 13
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) ................................ 10
Scherbyn v. Wayne-Finger Lakes Bd. of Co-opposition, Educ. Servs., 77 N.Y.2d 753 (1991) .... 13
Starishevsky v. Hofstra Univ., 161 Misc.2d 137 (Sup. Ct. Suffolk Cnty. 1994) .......................... 14
Stewart v. Parker, 41 A.D.2d 785 (3d Dep’t 1973) ........................................................................ 7
Stop BHOD v. City of New York, 22 Misc.3d 1136(A) (Sup. Ct. Kings Cnty. 2009)................... 17
Sylmark Holdings Ltd. v. Silicone Zone Intl. Ltd., 5 Misc.3d 285 (Sup. Ct. N.Y. Cnty. 2004) .... 17
Tedeschi v. Wagner Coll., 49 N.Y.2d 652 (1980)....................................................................... 1, 8
Tucker v. Toia, 54 A.D.2d 322 (4th Dep’t 1976) .......................................................................... 16
Ulster Home Care Inc. v. Vacco, 255 A.D.2d 73 (3d Dep’t 1999)......................................... 15, 16
Vanech v. City of New York, Index No. 118694/98, 2000 N.Y. Misc. LEXIS 438 (Sup. Ct.
N.Y. Cnty. 2000) ....................................................................................................................... 13
Warner v. Elmira Coll., 59 A.D.3d 909 (3d Dep’t 2009) ......................................................... 8, 12
Statutes
Article 78 of N.Y. C.P.L.R. ................................................................................................... passim
N.Y. C.P.L.R. 408 ......................................................................................................................... 17
N.Y. C.P.L.R. 6301 ..................................................................................................................... 6, 7
N.Y. C.P.L.R. 7805 ......................................................................................................................... 7
Treatises
DAVID L. FERSTENDIG & OSCAR G. CHASE, WEINSTEIN KORN & MILLER CPLR MANUAL
§ 6301.05 (3d ed. 2017) ............................................................................................................ 14
iii
4 of 23

 INDEX NO. 153826/2017

FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

RECEIVED NYSCEF: 11/02/2017

PRELIMINARY STATEMENT
Petitioners Sofia Dadap and Julie Norris are Fordham University students who care
deeply about human rights and are interested in starting a Students for Justice in Palestine
(“SJP”) club at Fordham’s Lincoln Center campus before they graduate. Ms. Dadap is a senior
scheduled to graduate in May 2018. Ms. Norris is scheduled to graduate in May 2019.
For more than a year, students at Fordham engaged in a process seeking to obtain official
recognition of a club called SJP. Their goal was to build support on campus for justice and
human rights for Palestinians. In November 2016, the United Student Government (“USG”)
Senate approved SJP as a club at Fordham. Soon thereafter, Dean of Students Keith Eldredge
overruled the USG’s decision and denied SJP official club status, an unprecedented action.
It is clear from the reasons proffered by Dean Eldredge that he was motivated by the
belief that SJP’s advocacy for Palestinian rights and its criticism of Israel would be disagreeable
to some members of the Fordham community. As a result of Fordham’s decision, Petitioners
have been unable to engage in the kinds of activities available to club members.
In its decision denying SJP official recognition, Fordham failed to follow its own rules
and policies that bar it from restricting students’ expressive activities based on the positions
being advocated. In addition, Fordham’s decision relied on factors for which there was no
evidentiary basis. New York courts routinely review the non-academic decisions of educational
institutions, as those determinations are “closely akin to the day-to-day work of the judiciary,”
Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 658 (1980). Because Fordham’s refusal to recognize
SJP violated its own rules and was arbitrary and capricious, judicial intervention under Article 78
of the N.Y. C.P.L.R. is appropriate.
A preliminary injunction is necessary to remedy the harm caused by Fordham’s unlawful

1
5 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

action. Fordham’s policies acknowledge that participation in student clubs is a fundamental
aspect of campus life. Petitioners Awad and Lurie were already denied this opportunity, which
they will never be able to retrieve. Every day that SJP continues to be denied recognition,
Petitioners Dadap and Norris are being deprived of one of the important experiences to which
they are entitled as Fordham students.
If this action proceeds in its ordinary course, even if Fordham’s Motion to Dismiss is
denied, a favorable decision by this Court on the merits of the Petition will surely not benefit
Petitioner Dadap, who is a senior, and may not benefit Petitioner Norris, who is a junior. In any
event, the longer the delay in vindicating their rights, the longer that both Petitioners will
continue to suffer irreparable harm. This Court should, therefore, issue a preliminary injunction
reinstating the decision of the USG.
STATEMENT OF FACTS
The process to seek official recognition for SJP began in November 2015. Verified
Petition [hereinafter “Pet.”], Dkt. No. 1, at ¶ 2. As stated in its proposed constitution, the mission
of SJP at Fordham is “to build support in the Fordham community among people of all ethnic
and religious backgrounds for the promotion of justice, human rights, liberation, and selfdetermination for the indigenous Palestinian people.” Pet. at ¶ 17. As an official club, students
with SJP would be able 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 other club fairs throughout the year, and book rooms for meetings.
Pet. at ¶¶ 58-59; Affidavit of Sofia Dadap in Support of Petitioners’ Motion for a Preliminary
Injunction and Expedited Discovery, [hereinafter “Dadap Aff.”], filed herewith, at ¶¶ 6-8.

2
6 of 23

 INDEX NO. 153826/2017

FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

RECEIVED NYSCEF: 11/02/2017

Without official club status, SJP may not do any of these activities. Pet. at ¶¶ 58-59; Dadap Aff.
at ¶¶ 6-8.
Fordham’s Rules and Policies on Freedom of Expression
Fordham’s free expression commitment begins with its Mission Statement, which
“guarantees the freedom of inquiry required by rigorous thinking and the quest for truth[,]. . .
seeks to foster in all its students life-long habits of careful observation, critical thinking,
creativity, moral reflection and articulate expression[,]. . . [and] seeks to develop in its students
an understanding of and reverence for cultures and ways of life other than their own.” Pet. at ¶
48. The University also promises that “[e]ach member of the University has a right to freely
express his or her positions and to work for their acceptance whether he/she assents to or dissents
from existing situations in the University or society.”1 Fordham assures it will not infringe on the
rights of students “to express [their] positions” and engage in “other legitimate activities.”2
Elsewhere, Fordham reaffirms its commitment to “freedom of expression and the open exchange
of ideas. The expression of controversial ideas and differing views is a vital part of University
discourse.”3 Finally, in its consideration of requests to approve student demonstrations, Fordham
says that a “request to use space at Fordham for a protest or a demonstration has never been
turned down based on the viewpoint or content of the protesters/demonstration.”4

                                                            
1

Demonstration Policy, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university regulations/3709/demonstration policy (last visited Nov. 1, 2017).
Fordham President, Father McShane, has also expressed his understanding of these principles, stating “you know
that I am tireless…in advocating for the University’s mission, in urging our students…to be men and women for
others…I hope our graduates leave the campus bothered. Bothered by injustice. Bothered by poverty. Bothered by
suffering.” Affidavit of Glenn Hendler, Dkt. No. 67, at ¶ 19.
2
Demonstration Policy, supra note 1.
3
Bias-Related Incidents and/or Hate Crimes, FORDHAM UNIV.,
https://www.fordham.edu/info/21684/university regulations/6566/bias-related incidents andor hate crimespolicy
(last visited Nov. 1, 2017).
4
Demonstrations FAQ, FORDHAM UNIV,
https://www.fordham.edu/info/21684/university regulations/6564/demonstrations faq (last visited Nov. 1, 2017).

3
7 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

Taken together, these rules express the University’s unequivocal commitment to bedrock
principles of free speech. Clubs, as a vehicle for collective student expression, represent a
fundamental exercise of those principles. For Petitioners, an SJP club would be their means of
collectively advocating for Palestinian human rights. Pet. at ¶¶ 11-14. Denying the right to form
such a club not only robs Petitioners of the opportunity to educate themselves and others about
an issue they care deeply about, but also sends a chilling message to the campus community that
advocacy for this particular cause is not sanctioned by the administration, making pariahs of the
Petitioners and their supporters, and warning others that viewpoints that the administration
disfavors are off limits. Dadap Aff. at ¶¶ 9-10.
Fordham’s Veto of USG’s approval of SJP
At the beginning of the 2016 academic year, the students who were interested in forming
SJP asked about the status of their application. After some back-and-forth discussions with
Dorothy Wenzel, Director of the Office of Student Leadership and Community Development,
USG members and Eldredge, the students revised SJP’s constitution to state its independence
and autonomy from National Students for Justice in Palestine (NSJP), and provided Fordham
written confirmation from NSJP that it does not require specific language in SJP groups’
constitutions. Second Affidavit of Ahmad Awad [hereinafter “Sec. Awad Aff.”], Dkt. No. 58, at
¶¶ 10-17. See also Pet. at ¶¶ 20, 45; Affidavit of Dorothy Wenzel [hereinafter “Wenzel Aff.”],
Exhibit [hereinafter “Ex.”] I, Dkt. No. 35, at p. 2; Ex. J, Dkt. No. 36, at p. 1; Ex. K, Dkt. No. 37,
at p. 2. Moreover, the NSJP website also clearly states, “we do not dictate to SJP chapters: all
individual SJPs are autonomous student orgs on their respective campuses.” Pet. at ¶ 45.
(Emphasis in original.)

4
8 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

Thereafter, SJP’s constitution was sent to the USG Senate. On November 17, 2016, the
USG Executive Board and Senate voted to approve SJP as a club. Pet. at ¶ 28. Eldredge
subsequently wrote Petitioners stating that he was informed of the decision to approve the SJP
club and that he “now need[s] to review the request before it is finalized.” Pet. at ¶ 29.
According to the Affidavit he submitted in support of Fordham’s Motion to Dismiss, Eldredge
consulted with students and faculty members, some of whom provided materials or expressed
views that were highly critical of the positions advocated by SJPs and of the activities conducted
by some SJPs on other college campuses.

See Affidavit of Keith Eldredge [hereinafter

“Eldredge Aff.”], Dkt. No. 15, at ¶ 18.
On December 22, 2016, Eldredge emailed Petitioners stating that he was overruling
USG’s approval of SJP. Pet. at ¶ 32. He wrote that he could not support “advocating political
goals of a specific group, and against a specific country, when these goals clearly conflict with
and run contrary to the mission and values of the University;” that the topic of the “IsraeliPalestinian conflict . . . often leads to polarization” and the topic and purpose of SJP “points
toward that polarization.” Eldredge Aff., Ex. A at p. 1. He subsequently told the students that his
decision was final and non-appealable. Pet. at ¶ 39.
On January 20, 2017, Jeffrey Gray, Fordham’s Vice President for Student Affairs, in
response to a letter from counsel for Petitioners, added another justification, stating that the
denial of SJP’s club status “was based on the fact that chapters of this organization have engaged
in behavior on other college campuses that would violate this University’s student code of
conduct.” Pet. at ¶ 41.
In the Affidavit Eldredge submitted in support of Fordham’s Motion to Dismiss, he said
that his “overarching concern was with the conduct exhibited by other chapters of SJP and its

5
9 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

polarizing effect on the Lincoln Center campus, which obviously can lead to issues of safety and
security.” Eldredge Aff at ¶ 23.
The reasons offered by Eldredge and Gray are plainly pretextual. Fordham has never
barred speech, speakers, or clubs because they may lead to “polarization,” as evidenced by its
invitations to Karl Rove and Newt Gingrich to speak on the campus (Eldredge Aff. at ¶ 6), and
by its official recognition of potentially “polarizing” clubs such as the Feminist Alliance and the
Rainbow Alliance (Wenzel Aff., Ex. R, Dkt. No. 44, at p. 2). As for the allegedly disruptive
behavior of some SJPs on other campuses, Fordham knew from Petitioners and the revised SJP
constitution that the proposed club would be entirely independent of both the NSJP and other
campus SJPs. Fordham had absolutely no information to the contrary.
Fordham’s rejection of USG’s approval of club status for SJP was motivated by hostility
to the views it advocates. Fordham’s decision lacked any rational basis in fact, violated its own
rules, and was arbitrary and capricious.

Because SJP has not been officially recognized,

Petitioners and other students interested in establishing SJP at Fordham have been unable—and
will continue to be unable—to engage in a variety of activities that recognized clubs can engage
in. See Dadap Aff. at ¶ 6.

ARGUMENT
I.

PETITIONERS ARE ENTITLED TO A PRELIMINARY INJUNCTION.

Courts are authorized to issue a preliminary injunction in an Article 78 proceeding in the
same manner as authorized under N.Y. C.P.L.R. 6301. See Melvin v. Union Coll., 195 A.D.2d
447, 448 (2d Dep’t 1993) (granting a temporary injunction forbidding a college from suspending
a student during the pendency of an Article 78 proceeding); see also Riccelli Enters., Inc. v. State

6
10 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

of New York Workers’ Compensation Bd., 117 A.D.3d 1438, 1439 (4th Dep’t 2014) (deciding
that although petitioners moved for a stay pursuant to N.Y. C.P.L.R. 7805, the Supreme Court
properly granted their request for relief as a request for preliminary injunction); see also Stewart
v. Parker, 41 A.D.2d 785, 786 (3d Dep’t 1973) (a party can request a preliminary injunction
under N.Y. C.P.L.R. 6301 or a stay under N.Y. C.P.L.R. 7805 during an Article 78 proceeding).
The standard for the issuance of a preliminary injunction under N.Y. C.P.L.R. 6301 and
N.Y. C.P.L.R. 7805 are identical: “In order to be entitled to a preliminary injunction, the moving
party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury if
provisional relief is not granted, and (3) that a balancing of the equities demonstrates that the
moving party is entitled to injunctive relief.” Lee v. New York City Dep’t of Hous. Pres. & Dev.,
162 Misc.2d 901, 909 (Sup. Ct. N.Y. Cnty. 1994). See also Nassau Roofing & Sheet Metal Co.
v. Facilities Dev. Corp., 70 A.D.2d 1021, 1022 (3d Dep’t 1979); Jamaica Chamber of
Commerce v. Metro. Transp. Auth., 159 Misc.2d 601, 603 (Sup. Ct. Queens Cnty. 1993).
A. PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON
THE MERITS BECAUSE FORDHAM ACTED ARBITRARILY AND
CAPRICIOUSLY BY VIOLATING ITS POLICIES AND RENDERING A
DECISION THAT WAS WITHOUT FOUNDATION IN FACT AND
CONTRADICTED BY THE EVIDENCE.
Fordham’s decision to deny SJP official club status—in violation of its own policies and
with disregard for the evidentiary record—is subject to close judicial scrutiny. Fordham’s
decision to overrule approval of SJP was a non-academic determination, unrelated to issues of
academic performance.5 Courts in Article 78 proceedings review a university’s non-academic

                                                            
5

As Dean of Students, Eldredge oversees Student Life, a part of the Division of Student Affairs and is “responsible
for many of the activities that are not directly related to [students’] academic courses,” including overseeing
disciplinary hearings. See Welcome from Dean Eldredge, FORDHAM UNIV.,
https://www.fordham.edu/info/25099/welcome from the deans/10007/welcome from dean eldredge (last visited
Oct. 25, 2017); Student Conduct System, FORDHAM UNIV.,

7
11 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

determinations “closely” to ensure that the university has followed “its own rules,” in addition to
reviewing “whether the institution has acted in good faith or its action was arbitrary or
irrational.” Tedeschi, 49 N.Y.2d at 658 (annulling university’s non-academic decision because it
did not conform to its own rules and guidelines). “To suggest . . . that the college can avoid its
own rules whenever its administrative officials in their wisdom see fit to offer what they consider
as a suitable substitute is to reduce the guidelines to a meaningless mouthing of words.” Id. at
662. See also Rizvi v. N.Y. Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 A.D.3d 1049,
1052 (2d Dep’t 2012) (“When, as here, action taken against a student is predicated upon grounds
unrelated to academic achievement, the operative standard requires that the educational
institution proceed in accordance with its own rules and guidelines.”); Kallini v. N.Y. Inst. of
Tech., 34 Misc.3d 1211(A), 1211 (A) (Sup. Ct. N.Y. Cnty. 2012) (“If the university has not
substantially complied with its own guidelines and policies or its determination is not rationally
based upon the evidence, the determination will be annulled as arbitrary and capricious.”).
A non-academic university determination must “substantially adhere to its own published
rules and guidelines” and be based on “a rational interpretation of the relevant evidence.”
Kickertz v. N.Y. Univ., 110 A.D.3d 268, 272 (1st Dep’t 2013); see also Warner v. Elmira Coll.,
59 A.D.3d 909, 910 (3d Dep’t 2009). Fordham did neither. It failed to substantially comply
with its policies that allow students to freely express their positions—including by forming
clubs—even when those ideas are controversial.

Fordham’s stated justifications for the

decision—“polarization” and “safety and security” concerns resulting from the alleged conduct
of other independent SJPs on other campuses—are wholly without basis in fact and contradicted
by the evidence.
                                                                                                                                                                                                
https://www.fordham.edu/info/21684/university regulations/3808/student conduct system (last visited Oct. 25,
2017). 

8
12 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

1. Fordham violated its own policies and procedures.
Denying official recognition to SJP because of its political views violated
Fordham’s obligation to “proceed in accordance with its own rules and guidelines.” Rizvi, 98
A.D.3d at 1052. Fordham’s policies guaranteeing free expression, as reflected in the University
Mission Statement, Demonstration Policy, and Bias-Related Incidents and/or Hate Crimes
policy, together establish Fordham’s unequivocal commitment to permitting the expression of
viewpoints and ideas without regard to content.
As stated above, Fordham values and guarantees “freedom of expression and the
open exchange of ideas” and “freedom of inquiry,” as well as ensures the right of students to
“freely express” dissenting positions.

See supra pp. 3-4.

Fordham also clarifies that

“demonstrations are sanctioned forms of freedom of speech,”6 pledging that the “expression of
controversial ideas and differing views is a vital part of University discourse.”7 Fordham has
committed itself, through a variety of written policies, to protect a diverse range of expression,
even when Fordham disagrees with the views expressed.
Fordham’s commitment to support a “wide variety of clubs and organizations” to
stimulate students’ “intellectual and personal growth” reflects these same free expression
principles.8 Student clubs are a primary vehicle for students to express their views, both
individually and collectively. See, e.g., Citizens Against Rent Control/Coal. for Fair Hous. v.
City of Berkeley, 454 U.S. 290, 294 (1981) (“the practice of persons sharing common views
banding together to achieve a common end is deeply embedded in the American political
process.”). While Petitioners would not claim the right to have a club if Fordham barred all
                                                            
6

Demonstration Policy, supra note 1.
Bias-Related Incidents and/or Hate Crimes, supra note 3.
8
Student Leadership and Community Development, FORDHAM UNIV.,
http://216.230.117.32/section3/section55/index html (last visited Nov. 2, 2017).
7

9
13 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

clubs, having decided to allow clubs and to adopt policies that encourage the expression of
controversial points of view, Fordham is prohibited—by those very policies—from rejecting a
club out of distaste for the positions that the club advocates.
Fordham, no less than other colleges, purports to abide by fundamental principles of
freedom of expression, which reject the notion that certain ideas will not be tolerated because
some may find them offensive or controversial. See Rosenberger v. Rector & Visitors of the
Univ. of Va., 515 U.S. 819, 829 (1995) (speech cannot be regulated due to “the specific
motivating ideology or the opinion or perspective of the speaker”). See also Bachellar v.
Maryland, 397 U.S. 564, 567 (1970) (“[I]t is firmly settled that under our Constitution the public
expression of ideas may not be prohibited merely because the ideas are themselves offensive to
some of their hearers, or simply because bystanders object to peaceful and orderly
demonstrations.”).
The principles these cases express are echoed by Fordham’s Mission Statement and its
policies governing student speech. And even though not bound by the First Amendment,
Fordham’s consciousness of its rules is reflected in its statement that it will not deny approval of
a demonstration “based on the viewpoint or content of the protesters/demonstration. . . .”

9

Though Fordham's campus is private property, this is quite similar to the way municipalities
coordinate with those planning protests in public spaces. Fordham’s commitment to viewpoint
neutrality notwithstanding, Eldredge and Gray’s explanations of Fordham’s decision to veto
SJP’s approval reveal clear hostility to the positions advocated by SJP:
a.

Eldredge’s letter states that SJP would “advocat[e] political goals . . . [that]

clearly conflict with and run contrary to the mission and values of the University.” Eldredge Aff.,
                                                            
9

Demonstrations FAQ, FORDHAM UNIV,
https://www.fordham.edu/info/21684/university regulations/6564/demonstrations faq (last visited Nov. 1, 2017).

10
14 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

Ex. A at p. 1.

But Fordham’s values, as expressed in its Mission Statement, include a

commitment to education that assists in “the promotion of justice” and “the protection of human
rights.” Pet. at ¶ 17. Those values are self-evidently consistent with SJP’s advocacy of justice
and human rights for the Palestinian people. Id.
b.

Eldredge justifies denying recognition to SJP because the topic and purpose of

SJP would lead to polarization rather than dialogue. Eldredge Aff., Ex. A at p. 1. But given that
Fordham previously extended speaking invitations to such polarizing figures as Karl Rove and
Newt Gingrich and recognized such potentially polarizing clubs as the Feminist Alliance and the
Rainbow Alliance, its purported concern with the issues raised by SJP was more about the
substance of those issues than their impact on the campus. Moreover, concerns about polarizing
ideas are merely a euphemism for controversial views, which Fordham has pledged to permit.10
c.

Fordham’s purported concern about the allegedly disruptive activities of SJP

groups on other campuses, expressed by Eldredge and Vice President Gray, is patently frivolous,
given the evidence that SJP was completely independent and autonomous, including the
assurance given by Petitioners and by NSJP, as well as the explicit statement in SJP’s proposed
constitution. See supra at p. 4. Fordham has no evidence upon which to question that fact.
d.

Eldredge acknowledges that he would agree to a club “without a name that

attracts the level of animosity and safety concerns that other campuses with SJP chapters
throughout the country have experienced.” Eldredge Aff. at ¶ 25. Eldredge understood from
Petitioner Awad that the students chose the name SJP “to connect to the broader student
movement for justice in Palestine and . . . the name itself conveys a political message that was
significant” for the students. Second Affidavit of Ahmad Awad [hereinafter “Sec. Awad Aff.”],
                                                            
10

As the United States Supreme Court has recently affirmed, denying a benefit based on offense to others is
viewpoint discrimination. Matal v. Tam, 137 S. Ct. 1744, 1749 (2017).

11
15 of 23

 INDEX NO. 153826/2017

FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

RECEIVED NYSCEF: 11/02/2017

Dkt. No. 58, at ¶ 9. Petitioner Dadap, too, has emphasized the importance of the name SJP to
signal “being a part of the growing student movement for justice in Palestine.” Dadap Aff. at ¶
4. Eldredge’s willingness to accept a club with a name that conveyed a different political
message than SJP, while allowing the club to engage in the same activities, is clear evidence that
it was the club’s message and not “safety and security” concerns that troubled him.
Fordham’s policies concerning student speech commit the college to tolerate varied
political messages regardless of their viewpoint. In denying club recognition to SJP because of
the views that it advocates, Fordham violated its rules and acted arbitrarily and capriciously.
2. The reasons given by Fordham for its decision lacked a rational factual
basis.
In addition to ascertaining whether educational institutions have adhered to their own
policies and procedures, courts also examine whether university decisions are founded in fact
and supported by the evidentiary record. See Pell v. Board of Education, 34 N.Y.2d 222 (1974).
If they are found to be lacking in “rational basis” or are “taken without regard to the facts,” they
will be voided. Id. at 231. See also Warner, 59 A.D.3d at 910 (“While respondent adhered to its
written rules, its determination was arbitrary and capricious because the determination was not
rationally based upon, and was contradicted by, the evidence.”); Rizvi, 98 A.D.3d at 1053-54
(university “acted irrationally and, hence, arbitrarily and capriciously” because “there is no basis
in this record supporting [the university]’s determination to treat the petitioner differently” than
other students).
Fordham has said that an additional reason for denying SJP official status is that allegedly
disruptive behavior of independent SJPs on other campuses raises the possibility that similar

12
16 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

behavior may occur on Fordham’s campus.11 Eldredge Aff. at ¶ 22. This justification not only
lacks “foundation in fact” and “sound basis in reason,” Pell, 34 N.Y.2d at 231; it belies facts and
reason, and its purported basis was flatly contradicted by the uncontroverted evidence that SJP
would be independent and autonomous.

On numerous occasions, Petitioners declared to

Fordham administrators, and included in their constitution, that SJP at Fordham was completely
independent from NSJP and SJPs on other campuses. See supra at p. 4. Fordham had absolutely
no evidence to the contrary. See D.F. v. Gladys Carrion, 43 Misc.3d 746, 754 (Sup. Ct. N.Y.
Cnty. 2014) (concluding that decision is arbitrary and capricious in part because it “rests on the
premise that has no foundation in the record”). Furthermore, Eldredge acknowledges that the
accuracy or truth of the media reports on which he relied regarding other SJP groups’ purported
conduct was irrelevant to his decision. Eldredge Aff. at ¶ 24.12 And the mere fact that there are
other organizations with the same name does not mean that they will engage in the same
conduct. See Healy v. James, 408 U.S. 169, 186 (1972) (college president’s decision to deny
official recognition to a student group because it would be “disruptive” violated students’
associational rights because “guilt by association alone” was “an impermissible basis” for the
decision). Fordham’s reliance on the activities that were alleged to have occurred on other

                                                            
11

Because Fordham did not raise safety and security concerns when it made its decision, it cannot rely on such
concerns now. The “reasonableness of the agency’s determination must be judged solely on the grounds stated by
the agency at the time of its determination. If those grounds are arbitrary and capricious, the court may not uphold
the determination even if the agency proffers a proper, alternative ground in the Article 78 proceeding.” Vanech v.
City of New York, Index No. 118694/98, 2000 N.Y. Misc. LEXIS 438 (Sup. Ct. N.Y. Cnty. 2000), at *11-12, citing
Scherbyn v. Wayne-Finger Lakes Bd. of Co-opposition, Educ. Servs., 77 N.Y.2d 753 (1991).  
12
Moreover, Fordham’s purported fear of “problematic behavior” that “would violate the University’s Code of
Conduct” is “sheer speculation” that cannot constitute a rational basis for the University’s determination. Basile v.
Albany Coll. of Pharm. of Union Univ., 279 A.D.2d 770, 772 (3d Dep’t 2001) (college’s determination was arbitrary
and capricious because allegations “based on sheer speculation” cannot “rationally support the determinations”; see
also Rockwell v. Morris, 12 A.D.2d 272, 276 (1st Dep’t 1961) (denying a permit to deliver a speech violated the
department’s regulation because there was “no competent record upon which [to]... reach the conclusion, even if
otherwise legally permissible, that [Petitioner’s] proposed speech...was likely to create the disorders.”).

13
17 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

campuses as a basis for its decision regarding SJP lacked any “rational basis” and was “taken
without regard to the facts.” Pell, 34 N.Y.2d at 231.13
Fordham’s inference that SJP would engage in disruptive behavior was based entirely on
the alleged behavior of SJP clubs on other campuses. Not only did it do nothing to confirm the
truth of the allegations concerning what occurred on other campuses, but, more importantly, it
had no reason whatsoever to assume that SJP at Fordham would be influenced by the activities of
other clubs on other campuses. Fordham’s decision was driven by hostility to SJP’s political
message―the University’s own hostility as well as the hostility of others who influenced the
outcome―rather than rationally based upon a reliable evidentiary record. In Starishevsky v.
Hofstra University, the court annulled a determination when the private university made it “not
upon the record but in an apparent reaction to what it believed was acceptable in the eyes of the
community, and then sought to justify the result.” 161 Misc.2d 137, 148-49 (Sup. Ct. Suffolk
Cnty. 1994). The Court should do the same here.
B. PETITIONERS WILL BE IRREPARABLY HARMED BEFORE
DECISION ON THE MERITS CAN BE RENDERED UNLESS THE
COURT ISSUES A PRELIMINARY INJUNCTION.

A

Irreparable injury is defined as “that which cannot be repaired, restored, or compensated
in money or where the compensation cannot be measured.” DAVID L. FERSTENDIG & OSCAR G.
CHASE, WEINSTEIN KORN & MILLER CPLR MANUAL § 6301.05 (3d ed. 2017). The Court’s
determination of irreparable injury should be based upon an assessment of the impact of nonintervention upon the party seeking relief, especially when that impact is greater than what an
enjoined defendant would suffer. Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186
                                                            
13

Courts will also nullify university determinations made in bad faith. See, e.g., Gray v. Canisius Coll. of Buffalo,
76 A.D.2d 30, 34 (4th Dep’t 1980). “An academic institution must act in good faith in its dealings with its
students,” Olsson v. Board of Higher Education, 49 N.Y.2d 408, 414 (1980), and “[a] showing of unequal treatment
is sufficient” to allege bad faith. Barbour v. Knecht, 296 A.D.2d 218, 224 (1st Dep’t 2002).  

14
18 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

A.D.2d 631, 633 (2d Dep’t 1992) (granting a preliminary injunction preventing the appellants
from using the firm’s name in an action to recover damages for breach of contract).
Petitioner Dadap is scheduled to graduate from Fordham at the end of this academic year
(May 2018), Dadap Aff. at ¶ 2, and Petitioner Norris is scheduled to graduate the following year
(May 2019). Affidavit of Julie Norris [hereinafter “Norris Aff.”], Dkt. No. 6, at ¶ 1. Absent
preliminary relief, Petitioners cannot get a “full measure of relief” because a decision on the
merits will not benefit Petitioner Dadap, and may not benefit Petitioner Norris. Dadap Aff. at ¶
2; Affirmation of Alan Levine, filed herewith, at ¶ 3. Petitioner Dadap describes the importance
of belonging to a club that will allow them to educate Fordham students about the denial of
Palestinian rights and to encourage those students to join the international human rights
community in seeking justice for Palestinians. Dadap Aff. at ¶ 8; Norris Aff. at ¶ 4. Fordham’s
policies make clear that participation in official clubs is an integral part of the student
experience. Without prompt relief from this Court, Petitioners Dadap and Norris will be denied
a college experience which both they and Fordham acknowledge to be an important one. The
denial of that experience cannot be adequately remedied with compensation and Petitioners will
continue to suffer harm pending the final determination of the litigation. Melvin, 195 A.D.2d at
448. Fordham’s denial of Petitioners’ opportunity to enjoy this important college experience
because of the cause they seek to advocate constitutes irreparable harm.
When an alleged deprivation of a constitutional right is involved, such as the right to free
speech, courts generally hold that no further showing of irreparable injury is necessary. Elrod v.
Burns, 427 U.S. 347, 356 (1976) (“The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.”). Breaches of rights of equity are
similarly viewed as constituting irreparable harm. Ulster Home Care Inc. v. Vacco, 255 A.D.2d

15
19 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

73, 75 (3d Dep’t 1999) (“where, as in this instance, the granting of a preliminary injunction is
necessary for the protection of rights cognizable in equity and there is a danger of irreversible
injury…based on an invalid statute or administrative rule or order, such relief is available.”).
Fordham’s commitment to students’ rights to free expression is comparable to the First
Amendment’s, and the violation of that commitment inflicts injury that is no less serious. In
short, Petitioners have suffered the same irreparable harm as that which warranted preliminary
relief in Elrod and Ulster Home Care.

C. A WEIGHING OF THE EQUITIES FAVORS PETITIONERS’ POSITION.
In order for a preliminary injunction to issue it must be shown that the irreparable injury
to be sustained by the petitioner is more burdensome than the harm caused to respondent through
imposition of the injunction. Tucker v. Toia, 54 A.D.2d 322, 326 (4th Dep’t 1976) (“In view of
the conceded irreparable harm facing plaintiffs as contrasted with the damage the state would
face by postponing implementation of the statute until this case can be hard on its merits, Special
Term properly exercised its discretion by granting plaintiffs' motion for a preliminary
injunction.”).
Petitioners are unable to establish SJP at Fordham and engage in all the activities that
Fordham requires club status to participate in. See Dadap Aff. at ¶ 6. Fordham’s decision to
overrule USG’s approval of SJP has stigmatized advocacy for Palestinian rights at Fordham, so
that even those students who were previously interested are now reticent to speak out publicly
for Palestinian rights, and has stigmatized Petitioners in a way that could negatively impact their
employment opportunities. Id. at ¶¶ 9-10. The burden on Fordham in lifting its veto of the
USG’s approval of SJP and recognizing a club it has said it would recognize by another name

16
20 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

will be essentially non-existent compared to the irreparable harm that Petitioners will suffer if a
preliminary injunction is not issued.
II.

PETITIONERS HAVE A RIGHT TO LIMITED DISCOVERY IN
CONNECTION WITH THEIR MOTION FOR PRELIMINARY RELIEF.

It is well settled that limited discovery is available pursuant to N.Y. C.P.L.R. 408 in an
Article 78 proceeding upon an appropriate showing of need. See, e.g., Nespoli v. Doherty, 17
Misc.3d 1117(A), 1117A (Sup. Ct. N.Y. Cnty. 2007) (granting limited discovery in an Article 78
proceeding to aid petitioner in furnishing information to the court that respondents’ actions are
without basis in fact.). Thus, discovery will be granted when a petitioner questions, and the
respondent denies, an improper motive for the challenged action. See, e.g., Gerber Prods. Co. v.
New York State Dep’t of Health, 47 Misc.3d 249, 254 (Sup. Ct. Albany Cnty. 2014) (discovery
granted when respondent contested petitioner’s assertion that the agency’s action had been taken
in order to favor a competitor, as it was “clearly relevant for the purposes of determinating
whether respondents’ actions were rational”); see also Levine v. Feldman, 215 A.D.2d 182, 182
(1st Dep’t 1995) (discovery required to “prove that defendants’ claim of economic necessity is a
pretext for a termination that was actually motivated by age discrimination”). It is equally well
settled that limited discovery is available upon a proper showing of need when an Article 78
petitioner seeks a preliminary injunction. Stop BHOD v. City of New York, 22 Misc.3d 1136(A)
(Sup. Ct. Kings Cnty. 2009), citing Sylmark Holdings Ltd. v. Silicone Zone Intl. Ltd., 5 Misc.3d
285 (Sup. Ct. N.Y. Cnty. 2004).
Petitioners allege that Fordham denied official club recognition to SJP because of
hostility to the viewpoint advocated by SJP. Fordham asserts that its decision was based on
concerns that SJP would be polarizing and generate safety and security concerns. Petitioners

17
21 of 23

 FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

INDEX NO. 153826/2017
RECEIVED NYSCEF: 11/02/2017

22 of 23

 INDEX NO. 153826/2017

FILED: NEW YORK COUNTY CLERK 11/02/2017 07:58 PM
NYSCEF DOC. NO. 81

RECEIVED NYSCEF: 11/02/2017

New York, NY 10012
Tel: (212) 614-6464 / Fax: (212) 614-6499
mlahood@ccrjustice.org
Cooperating Counsel:
Alan Levine (N.Y. Bar No. 1373554)
Radhika Sainath (N.Y. Bar No. 5252127)
Rahul Saksena (N.Y. Bar No. 4819751)
Palestine Legal
Counsel for Petitioners

19
23 of 23