In November 2015, Ahmad Awad (Awad) and several other undergraduate students attending Fordham University (Fordham), a private university located in New York, sought to organize a student club to be named the Students for Justice in Palestine at Fordham University (SJP) as a registered organization sanctioned by Fordham. The students submitted all of the required paperwork, including a proposed constitution, consistent with Fordham University Lincoln Center Campus United Student Government Operations Committee Club Guidelines (the Guidelines). The documents SJP submitted included information that the club would be “organized around the principles of the call by Palestinian civil society for Boycott, Divestment, and Sanctions of Israel” and its mission would be “to build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation, and self-determination for the indigenous Palestinian people.”
The Guidelines state that the United Student Government (USG) Operations Committee assists groups to edit their constitution and then submits the packet to the Director of the Office for Student Involvement and then to the Dean of Students. A club is not considered a registered organization until the Director of the Office for Student Involvement, the Dean of Students, and the USG Senate have all approved the packet. The Guidelines state the Dean of Students has a right to veto any club, but do not set forth the grounds upon which the Dean may exercise that veto power.
After several months of discussions among and between Awad, other student members of SJP, employees of Fordham, and with input from Fordham students, student organizations, and faculty, the Director of the Office for Student Involvement and the Dean of Students approved SJP’s constitution. The USG Senate then approved SJP’s request to be a recognized student club. Subsequently, the Dean of Students vetoed the USG Senate’s approval. The Dean of Students explained:
“While students are encouraged to promote diverse political points of view, and we encourage conversation and debate on all topics, I cannot support an organization whose sole purpose is 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… There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization. Specifically, the call for Boycott, Divestment, and Sanctions of Israel presents a barrier to open dialogue and mutual learning and understanding.”
Thereafter, Awad and the other students initiated an action seeking an order annulling the Dean of Student’s denial of their request to be a registered organization and an order compelling Fordham to recognize them as a registered organization in accordance with the approval of the USG Senate. In New York, a court may set aside the determination of a university, acting in its administrative capacity, where the university does not abide by its own rules, or where the university’s determination is “arbitrary and capricious.” A determination is “arbitrary and capricious” if it is not rationally based, has no support on the record, or the decision-maker considered inappropriate factors in coming to his or her decision.
Awad and the other students argued that the determination of the Dean of Students should be annulled because Fordham did not follow its own rules when deciding whether to approve the SJP and because the Dean of Students acted in an arbitrary and capricious manner when he denied SJP’s request for formal recognition.
The Court agreed with Awad and the other students. The Court contended that Fordham did not abide by its own published rules governing the approval and recognition of student clubs because the Dean of Students first approved the SJP constitution and then vetoed the USG Senate approval. The Court also noted that because the Dean of Students approved the SJP constitution before the USG Senate granted its approval and then later vetoed the USG Senate’s approval “without a rational explanation or any change in circumstance,” it “necessarily require[d] the conclusion that the ultimate determination was arbitrary.”
The Court explained that while the Guidelines grant the Dean of Students the discretion to evaluate whether a club will promote Fordham’s mission, the Dean of Student’s reason for vetoing the USG Senate’s approval of the SJP, namely the potential for “polarization” of the Fordham community were SJP to be formally recognized, did not fall within this discretion. The Court concluded that the Dean of Student’s reasons for rejecting SJP were arbitrary and capricious because he did “not provide a rational basis for concluding that SJP might encourage violence, disruption of the university, suppression of speech, or any sort of discrimination against any member of the Fordham community based on religion, race, sex, or ethnicity,” and disapproved of SJP in large part because the subject of SJP’s criticism was the State of Israel.
The Court, therefore, issued an order annulling the Dean of Student’s rejection of the SJP and directing Fordham to recognize SJP as a university-sanctioned club in accordance with the approval of the USG Senate.
However, the decision was subsequently reversed. The Court noted that, contrary to the Court’s previous holding, Fordham had followed its approval procedure for student clubs and acted “in the exercise of its honest discretion.” The Court further noted that Fordham’s “conclusion that the proposed club, which would have been affiliated with a national organization reported having engaged in disruptive and coercive actions on other campuses, would work against, rather than enhance, respondent’s commitment open dialogue and mutual learning and understanding, was not ‘without sound basis in reason’ or ‘taken without regard to the facts.’”
Awad v. Fordham University (N.Y. Sup. Ct. 2019) 64 Misc.3d 1234(A), rev’d (N.Y. App. Div., Dec. 22, 2020) 2020 N.Y. Slip Op. 07695.
NOTE:
Schools, universities, and colleges that permit students to organize school-sanctioned clubs and organizations should have procedures for approval and recognition of such clubs and organizations. In these procedures, schools, universities, and colleges should retain discretion to deny approval and recognition to student clubs and organizations that hold positions that are inconsistent with the school’s mission, values, or nondiscrimination policies. It is also crucial for schools, universities, and colleges to follow any procedures they establish.
