From today’s decision by Judge Gerald McHugh (E.D. Pa.) in Landau v. Corp. of Haverford College:
[A] litany of complaints related in a general way to the same subject—in this instance the serious problem of antisemitism—is not the same thing as a legally cognizable complaint pled in accordance with the Federal Rules of Civil Procedure….
Plaintiffs Jews at Haverford, Alumni Ally Landau, and two anonymous students … allege that over the past year, Haverford College … has become a bastion of antisemitism that is tolerated and at times perpetuated by the College. Plaintiffs contend that they have been personally affected by the eruption of disorder on campus. Specifically, they state that they have lost friends, faced harassment, been forced to change their routines, and missed out on seminal Haverford experiences because of escalated antisemitism. They assert that antisemitism at Haverford has fostered a hostile educational environment in violation of Title VI, and that Haverford has breached certain contractual obligations by failing to deal with campus unrest.
At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs’ Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.
Some of the instances alleged are concerning, and if pled properly, could perhaps support a cognizable legal claim under Title VI. Yet, the Complaint is diluted by instances that no reasonable person could construe as intentional discrimination. For example, Plaintiffs contend that Haverford did not announce the month of May as “American Jewish History Month,” and instead only celebrated “Asian American/Pacific Islander Month.” Or, Plaintiffs complain that some graduating students at the Spring 2024 commencement donned attire that signified their support for Palestinians—a classic example of protected First Amendment expression. Elsewhere, Plaintiffs include comments made by a professor who does not even attend Haverford. As a result of Plaintiffs’ scattered pleading, any serious allegations of actionable discrimination are buried as needles within a haystack of distraction.
Plaintiffs also dedicate a full eight pages of their Complaint to their effort to link Judaism to Zionism, while simultaneously insisting that they are not asking the Court to resolve any religious issues. Plaintiffs’ equivocation is disingenuous, but likely strategic, seeking to blur the line between Zionism as a political philosophy and Zionism as a component of Jewish identity, and in the process implicitly sweep any and all criticism of Israel into the basket of antisemitism. {Haverford’s briefing also suffers from a lack of nuance in failing to distinguish different types of Zionism or anti-Zionism, because in current usage “Zionism” can hold many different meanings. This serves Defendant’s strategic purpose of deeming Zionism strictly a political philosophy, implicitly denying it can, depending on context, constitute an element of Jewish identity.} As a threshold matter, as I have done previously {Tannous v. Cabrini Univ. (E.D. Pa. 2023) (upholding termination of professor by university concerned by tone and content of social media posts about Israel)}, I reject Plaintiffs’ embedded proposition that any anti-Israel speech is intrinsically antisemitic, because reasonable people acting in good faith can challenge decisions of the Israeli government without harboring antisemitic views.
Although Plaintiffs present pockets of compelling facts, the burden is on Plaintiffs to articulate how particular facts support the elements of a legal claim, not to send the Court on a scavenger hunt. As cogently observed by Judge Boudin of the First Circuit, it is not the Court’s role, “especially in a counseled civil case, to create arguments for someone who has not made them or to assemble them from assorted hints and references scattered throughout the brief.” …
The court therefore rejected plaintiffs’ Title VI claims:
[1.] Title VI Applies to Antisemitic Harassment
On its face, Title VI does not address discrimination on the basis of religion. But there is ample precedent classifying antisemitic harassment and discrimination as tantamount to racial discrimination. The Department of Education’s Office of Civil Rights has also advised that Judaism is akin to race in specific instances where attacks are levied on “shared ancestry or ethnic characteristics.” How to apply it is a far more complex question.
As noted above, Plaintiffs posit that Zionism is “a central tenant of Judaism” under the purview of Title VI, whereas Haverford proposes that Zionism is merely a political belief unprotected by Title VI. For purposes of legal analysis, resort to such generalities is not useful, because the many meanings of “Zionism” make its relationship to Judaism extremely complex, made all the more complicated by strong emotions incited by strife in the region, and by the broad diversity of opinion within the Jewish population itself. { I accept that a commitment to the existence of a Jewish state—though notably not a carte blanche endorsement of any activity of the State—is a piece of ethnic identity for many (though not all) Jewish people.} Deciphering when criticism of Israel or promotion of the Palestinian cause veers into antisemitism is necessarily a fact specific endeavor, and on that score Plaintiffs’ complaint is insufficiently pled….
[2.] Plaintiffs do not plead facts supporting aggregation of their claims, and as a result, fail to plausibly establish the existence of a hostile environment …
To determine whether a hostile environment exists, courts consider whether the alleged conduct was sufficiently severe or pervasive. One particularly offensive instance may be sufficiently severe. On the other hand, multiple less egregious instances over time might evince sufficiently pervasive harassment. Mere name calling or one-off instances of moderate bullying will not suffice, nor will simple disagreement with educators’ management decisions….
A typical hostile environment claim considers the totality of a single individual’s circumstances, such as the frequency of the harassing conduct, its severity, and whether it was physically threatening or humiliating, or instead an offensive utterance. Here, however, Plaintiffs attempt to aggregate the experiences of many Jewish people at Haverford to paint the picture of a hostile environment endured collectively by all Plaintiffs. In fact, Plaintiffs specifically represent that it is the “environment, rather than any individual acts of harassment” that create a right of action.
Courts are split as to whether multiple Plaintiffs may aggregate individual instances of harassment to establish a hostile environment. Absent Third Circuit precedent on this question, both parties cite the Sixth Circuit opinion in Berryman v. SuperValu Holdings, Inc. (6th Cir. 2012). In Berryman, a group of African American employees sued their employer under Title VII for a hostile work environment based on multiple employees’ allegations about multiple different race-based incidents. The Sixth Circuit … concluded that courts may aggregate claims from multiple plaintiffs to determine whether a hostile environment exists, even where those claims were not directed at or experienced by the same plaintiff.
But Berryman further held that aggregation is only permitted where a plaintiff shows that they were personally aware of the specific instances of harassment alleged by other employees. The Sixth Circuit reasoned that courts may not infer collective knowledge where plaintiffs operate in a large space with multiple buildings. While a plaintiff does not need to be the target of or a witness to a specific instance of harassment for that instance to be considered in evaluating the presence of severe or pervasive harassment, a plaintiff does need to “marshal basic evidence” to show that they knew about it.
Yet in seeking aggregation here, Plaintiffs do not provide any facts that could support a finding that each plaintiff was aware of the other acts of harassment alleged. {Due to the anonymous nature of much of the pleadings, apart from Ally Landau’s alleged instances, Plaintiffs do not specify what each plaintiff experienced or witnessed, nor what each respective plaintiff knew about other alleged instances.} Plaintiffs simply aver that “Haverford is a small and intimate campus, of approximately 1400 students in all years. The events described in the FAC were known virtually universally, and certainly among the Jewish students at whom they were directed.” Such conclusory assertions of collective knowledge are insufficient to show individual knowledge on behalf of each Plaintiff.
To take one example, it is unclear who witnessed a professor’s alleged comments that he would not write recommendation letters for any student seeking to study Judaism or study in Israel. Further, it is unclear who the student that initially heard the statement then told, which of the named Plaintiffs knew of that incident, and when each Plaintiff was made aware, if ever. There is no allegation, for example, that Jews at Haverford organizationally had any channel for sharing such information. The entire complaint suffers from similar deficiencies as to the spread of information about instances that purportedly created a hostile environment.
Absent clear factual pleadings as to who knew what and when they knew it, Plaintiffs cannot show that each Plaintiff was aware of each instance of harassment alleged, and as such may not aggregate their claims to demonstrate the presence of a hostile environment. Without aggregation, the vast majority of Plaintiffs’ claims in isolation are not sufficiently severe or pervasive to constitute a hostile environment under Title VI.
[3.] Plaintiffs do not show that Haverford was aware of each episode of harassment, but responded with indifference
Even if one or more of Plaintiffs’ allegations was sufficiently severe or pervasive to constitute actionable harassment, Plaintiffs still fail to plead facts that would allow the Court to evaluate whether Haverford both knew about the harassment and acted with deliberate indifference—a critical element of a hostile environment claim. Specifically, Plaintiffs do not set forth clearly, for each instance in the Amended Complaint, who complained to whom, if so, about what, and when….
Of the 430 paragraphs in the Complaint, only twice do Plaintiffs plead that someone put administrators on notice of allegedly discriminatory conduct, and in neither case would Haverford’s response meet the legal standard for deliberate indifference. In the first instance, Plaintiffs objected to a public statement by Dean McKnight, which, according to Plaintiffs, “compared the butchery of Jews in Israel by a known terrorist group committed to eradicating the Jewish State and slaughtering all the Jews within it to a ‘hurricane’ or other natural disaster.” Plaintiffs state that “a Jewish student leader complained,” presumably to Dean McKnight himself, though the Complaint does not specify, who then responded, “I got emails from all different individuals; I can’t make everyone happy.” Assuming that the Dean failed to meet the moment in how he responded to the butchery of Hamas, students’ disappointment with an administrator’s choice of words, even deeply felt disappointment, cannot be deemed deliberate indifference….
Second, Plaintiffs aver that posters advertising a Shabbat dinner and a discussion of Jewish identity were torn down, an incident easily construed as antisemitic. The allegations regarding this incident provide the most detail as to whether anyone complained to administrators, yet still fall short of what proper pleading would demand.
The Plaintiffs aver that “a Jewish leader and several Jewish students complained to the Haverford administration and asked that this be investigated.” Once again, however, the Amended Complaint omits any information as to when students complained, whether the request to investigate was formal or informal, or which administrator received the complaint(s). Ironically, while Plaintiffs contend that “no member of the Haverford Administration publicly acknowledged the intentional destruction of the posters,” the very next paragraph of the Amended Complaint contradicts that, averring that that President Raymond issued a statement, saying that if there had been a “targeted removal” of any materials based on their promotion of Jewish activities, that would be “a clear case of antisemitism.”
Plaintiffs then assert that an alleged perpetrator later identified himself, referencing a tweet that a Haverford student posted on his pseudonymous, personal Twitter account, which reads “I be tearing down Chabad posters and eating them like f*ckin fruit rollups.” Plaintiffs repeatedly state that the student was never punished, and even won a student-selected award at graduation. Importantly, however, Plaintiffs do not plead that the alleged perpetrator was identified at any point to administrators, or that any administrator was made aware of his tweet. Title VI does not incorporate a common law negligence standard of “should have known.” It requires that Haverford had actual knowledge of antisemitic conduct which it then ignored. Taking insinuation out of the equation, on the record as it stands, Plaintiffs have pleaded that there was a reprehensible incident followed by public condemnation from the College President, allegations that fall well short of pleading deliberate indifference.
For all remaining incidents in the Amended Complaint, the Court is left to wonder whether a complaint was lodged, and if so, whether the complaint was made to someone with authority to remedy the situation. For example, Plaintiffs include a series of tweets made by Haverford Professor Guangtian Ha, one of which reads “[t]he state of Israel must be dismantled and the society de-Nazified. Arms embargo, sanction, boycott, attack Zionism on all fronts. Zionism is Nazism, it is fascism. Zionists are racists.” Yet, nowhere do Plaintiffs assert any facts to show that anyone with remedial authority at Haverford was ever made aware of the tweets. Elsewhere, Plaintiffs allege that anonymous posters reading “from the river to the sea” were hung around campus. But Plaintiffs do not state for how long the posters remained up, whether any administrators saw the posters, or whether anyone complained to administrators about the posters. In both instances, the dearth of information as to whether and when administrators with remedial authority were put on notice of alleged harassment makes it impossible to discern whether Haverford acted with deliberate indifference—a fundamental element of a hostile environment claim….
And the court likewise rejected plaintiffs’ contract claims:
[1.] Social Media Policy
Looking first to the social media policy, Plaintiffs fail to identify a specific undertaking that is relevant to any of the facts alleged. Plaintiffs quote several lines from the Policy that appears to govern any social media use on campus, and then broadly allege that these instructions are “systematically violated on a recurring basis by students who have attacked Jewish students at Haverford who support Israel or who attend religious services….” But Plaintiffs omit language just a few lines above the quoted text that the Policy applies only to “faculty, staff, and students who administer or contribute to official Haverford College-related social media channels.” … Such sleight of hand erodes not just the plausibility of the claims advanced but also Plaintiffs’ credibility. Because none of Plaintiffs’ allegations involving social media involve official Haverford-related social media channels, this policy is irrelevant, and no breach of contract exists.
[2.] Poster Policy
Plaintiffs’ breach of contract claim as to the Haverford Poster Policy similarly fails to articulate a specific actionable promise between Haverford and Plaintiffs. The Poster Policy in relevant part provides that “[t]he posters and other small notices must contain the name of the sponsor(s). An e-mail address where the sponsor can be reached should also appear on the notice.” Plaintiffs then include a photo of an anonymous poster reading “from the river to the sea Palestine will be free,” accurately pleading that the anonymous poster fails to include contact information in violation of the Policy. But Plaintiffs point to no undertaking by Haverford as to enforcement of the Poster Policy. Rather, the remedy that the policy explicitly provides is one of self-help: “any member of the community may take down any posting that is in violation of this policy.” An offended student could instantly remove it. As a contractual matter, the Poster Policy is more in the nature of an agreement between Haverford and those who seek to hang posters, setting forth the conditions under which posters may be displayed, not a promise to those who might see them. Plaintiffs dedicate eight paragraphs to exploring the import of the phrase on the poster, ranging from analogies to confederate flags to White House statements in response to October 7th. But the offensiveness of the phrase to students of Jewish heritage has no bearing on the legal question of whether the policy creates an enforceable contract, and I am compelled to conclude that it does not.
[3.] Scope of Expressive Freedom
Plaintiffs’ breach of contract claims based upon the “scope of expressive freedom” also lack specificity, for Plaintiffs do not articulate which specific language or policy is at issue, nor which conduct is at issue. Plaintiffs include three block quotes, each from a different Haverford policy, that provide in general terms that students have a right to protest and express their views, subject to an obligation to respect the dignity of others. A generalized assurance is not the same as a specific contractual promise. Plaintiffs do not articulate any specific instances that demonstrate a clear violation of any of the three excerpts which seemingly make up Plaintiffs’ “scope of expressive freedom” claim. On the one hand, Plaintiffs plead no instances where they attempted to protest and were denied the opportunity. On the other hand, that Haverford allowed protests counter to Plaintiffs’ interests to proceed on campus only shows that the College was abiding by its own policies on expressive freedom. Thus, absent more specific pleading as to a precise policy provision at issue and one or more specific instances that demonstrate a violation, Plaintiffs’ claim fails.
[4.] Non-discrimination Statement
Finally, Plaintiffs allege that Haverford breached its “Non-discrimination statement.” Plaintiffs include the following excerpt:
Haverford College is committed to providing an employment and educational environment free from all forms of unlawful discrimination because of race, color, sex/gender (including pregnancy, childbirth, related conditions, and lactation), religion, age, national origin, ancestry, citizenship, disability, status as a medical marijuana cardholder, genetic information, gender identity or expression, sexual orientation, current or past membership or service in the U.S. Armed Forces or a state military unit, or any other characteristic protected by law.
Beyond broadly referencing the other 278 pages of their Amended Complaint and its exhibits, Plaintiffs do not articulate in which specific instances they believe Haverford violated this policy. A college non-discrimination policy can constitute a contractual obligation where a plaintiff pleads specific facts surrounding the policy and its alleged violation…. [But] Plaintiffs summarily refer to their multiple allegations of discrimination and deem that sufficient to establish a breach of the antidiscrimination policy. This hardly suffices to plead breach of contract.
It is also worth noting that an element of a claim for breach of contract is the requirement that “a plaintiff must set forth facts regarding … resultant damages.” Not a single paragraph in the entire Amended Complaint references any injury stemming directly from Haverford’s alleged breaches of contract….
You can read plaintiffs’ 129-page Amended Complaint for yourself here.
Haverford is represented by Joshua W.B. Richards and Levi R. Schy.
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