CONSTITUTIONAL LAW – FIRST AMENDMENT – SPEECH – ANTISEMITISM

Landau v. Corp. of Haverford Coll., 2025 U.S. Dist. LEXIS 123300 (June 30, 2025) McHugh, J.
As recognized in my first opinion in this action, dismissing Plaintiffs’ First Amended Complaint, antisemitism is a serious problem. Where antisemitism results in a deprivation of educational opportunities, federal law provides a remedy. And where the record supports it, some federal courts have permitted parties to proceed with such claims. Here, without minimizing to any degree the extent to which Jewish students in the tumult of the current global and political climate might feel profound discomfort, Plaintiffs’ Second Amended Complaint still struggles to meet the threshold of what is required to state a Title VI claim under federal law. While Plaintiffs paint a picture of a stressful campus climate for Jewish students, many of the incidents pled fall within the protection of the First Amendment. In other instances where College officials appear vulnerable to criticism, their response to the situation cannot be deemed deliberate indifference. And the Complaint as a whole fails to plead concrete educational impact. Plaintiffs succeed, however, in stating a cognizable breach of contract claim, albeit one for nominal damages. I will therefore grant Defendant’s Motion to Dismiss Plaintiffs’ Title VI claim and deny the Motion as to the contract claim.
Plaintiffs allege that Haverford tolerates and perpetuates a hostile educational environment in violation of Title VI of the 1964 Civil Rights Act. A plaintiff raising a hostile environment claim must show that 1) the school was “deliberately indifferent” to known acts of harassment that 2) were “so severe, pervasive, and objectively offensive” that they deprived the victim of access to an educational activity or benefit. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). “In determining whether an educational environment is ‘hostile’, a court must examine the totality of the circumstances, such as ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with a student’s performance.'” Katchur v. Thomas Jefferson Univ., 354 F.Supp.3d 655, 664 (E.D. Pa. 2019) (citing Ke v. Drexel Univ., No. 11-6708, 2015 U.S. Dist. LEXIS 118211, 2015 WL 5316492, at *32 (E.D. Pa. Sept. 4, 2015)).
Critically, Plaintiffs do not articulate any concrete resultant harm stemming from their allegations, even where those allegations raise serious concerns about the climate at Haverford. Plaintiffs’ strategy also distinguishes this case from other recent federal actions challenging antisemitism on college campuses, where individuals or small groups of individual students brought claims that could easily be traced from an incident to its resolution, or lack thereof. See, e.g., Gartenberg v. Cooper Union for the Advancement of Sci. & Art, 765 F.Supp.3d 245 (S.D.N.Y. 2025) (ten individual student plaintiffs); Felber v. Yudof, 851 F.Supp.2d 1182 (N.D. Cal. 2011) (two individual student and alumni plaintiffs); Frankel v. Regents of Univ. of California, 744 F.Supp.3d 1015 (C.D. Cal. 2024) (three individual plaintiffs); Yael Canaan v. Carnegie Mellon Univ., 760 F.Supp.3d 306 (W.D. Pa. 2024) (one individual student plaintiff); Canel v. Art Inst. of Chi., No. 23-17064, 2025 U.S. Dist. LEXIS 30309, 2025 WL 564504 (N.D. Ill. Feb. 20, 2025) (same).
To establish a Title VI hostile environment claim, a plaintiff must show severe or pervasive harassment, deliberate indifference to that harassment, and a resultant deprivation of educational benefits. Here, Plaintiffs seek to do that by citing some 25-plus incidents purportedly impacting the collective consciousness of 50-plus mostly unnamed individuals comprising Jews at Haverford. But such gestalt pleading cannot be employed as a strategy to avoid scrutiny by the Court, because discrete legal principles govern what is actionable under Title VI. I will therefore proceed by identifying a series of core principles both animating and limiting Title VI claims and consider Plaintiffs’ allegations through this matrix.
Plaintiffs’ hostile environment claim falls apart as it funnels through the matrix. First, several of Plaintiffs’ allegations involve protected political expression, and cannot be regulated under the guise of nondiscrimination. Turning to the elements of a Title VI claim, the facts as pleaded do not suffice to establish deliberate indifference. Finally, even where speech is not necessarily protected or where deliberate indifference could be a closer call, Plaintiffs do not allege any concrete deprivation of educational benefits — either with regard to any of the individual allegations they set forth, or when considering the totality of the circumstances. As such, Plaintiffs’ Title VI claim must be dismissed.
To establish liability for a hostile educational environment, the Third Circuit and many federal courts alike require plaintiffs to show that administrators were deliberately indifferent to alleged harassment. The test for deliberate indifference is “whether a reasonable fact-finder could conclude that the College’s response was ‘clearly unreasonable in light of the known circumstances.’ In other words, whether, on [the] record, one could find that the College made ‘an official decision not to remedy the violation.'” Oden v. Northern Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006) (citing Davis, 526 U.S. at 641 and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)) (cleaned up). To reach this conclusion, plaintiffs must also show that administrators with authority to act were put on actual notice of the alleged harassment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014) (citing Davis, 526 U.S. at 645-49). Victims of harassment have no “right to make particular remedial demands.” Davis, 526 U.S. at 648.
The First Amendment again counsels in favor of limited judicial intervention when it comes to expressive activity on college campuses, demanding “‘substantial deference to a college’s decision not to take action against’ students who engage in expressive activity on matters of public concern and requiring courts to ‘defer to colleges’ decisions to err on the side of academic freedom.” Gartenberg, 765 F.Supp.3d at 267 (citing Rodriguez, 605 F.3d at 708-09). Institutions are not expected to be perfect or clairvoyant. See StandWithUs Ctr. for Legal. Just. v. Mass. Inst. of Tech., 742 F.Supp.3d 133, 143 (D. Mass. 2024). Along these lines, government coercion of speech to adhere to a particular message tampers with First Amendment protections. W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (explaining that government compulsion of speech “transcends constitutional limitations” on governmental power “and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”). Courts therefore may not compel administrators to make any specific statement on any particular topic.
The operative question is whether Haverford administrators acted, or failed to act, in a way that was “clearly unreasonable in light of known circumstances,” and whether these known circumstances necessarily implicate First Amendment protections. Davis, 526 U.S. at 648. I conclude that for a vast majority of Plaintiffs’ allegations, Haverford acted with sufficient reason and thought to dispel a finding of threshold deliberate indifference. These allegations are as follows.
As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern. A court cannot compel administrators’ speech, nor insist that administrators should have conveyed a different message. See Barnette, 319 U.S. at 642. The choice of message in the face of public controversy remains the province of college administrators, and unless clearly lacking in reason or overtly hostile cannot be deemed deliberate indifference.
A plaintiff must plead with specificity that the conduct at issue had some “concrete, negative effect” on their education. Davis, 526 U.S. at 654. While this element requires a serious showing, that showing can take many forms. For example, courts have found that concrete deprivations existed where plaintiffs alleged that they were forced to change their study habits or change schools, where they had a measurable drop in grades or increase in absenteeism, or where they developed anxiety sufficient to require intervention. Mandel v. Bd. of Trustees of Cal. State Univ., No. 17-03511, 2018 U.S. Dist. LEXIS 185871, 2018 WL 5458739, at *25 (N.D. Cal. Oct. 29, 2018) (citing Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 410 (5th Cir. 2015) and Gabrielle M. v. Park Forest-Chicago Heights IL. Sch. Dist., 315 F.3d 817, 823 (7th Cir. 2003)). In Gartenberg, plaintiffs sufficiently plead that they were “deprived of a supportive, scholastic environment free of discrimination and harassment” where they alleged that they suffered emotional distress, “including intense anxiety and panic attacks,” “engaged therapists, missed and/or dropped assignments,” avoided the campus library, and where at least one student delayed completion of their degree. 765 F.Supp.3d at 278; see also Canaan, 760 F.Supp.3d at 331 (plaintiff averred that she missed numerous lectures and many hours of a required studio course, was denied one-on-one meetings with a mentor professor, and avoided community events affiliated with her major); Frankel, 744 F.Supp.3d at 1022 (plaintiffs provided sworn declarations that they missed final exams because they were blocked from entering classrooms, and others were evacuated during final exams due to campus encampments).
Self-censorship does not amount to a concrete deprivation. The “fact that some unidentified students self-censored and did not attend Jewish events or identify as Jewish because of their fear of hostility is not only fatally vague but also questionable as to the impact on their education.” Mandel, 2018 U.S. Dist. LEXIS 185871, 2018 WL 5458739, at *26 (cleaned up).
Plaintiffs’ Second Amended Complaint is likewise fatally vague on the question of educational impact. Even where Plaintiffs’ allegations could perhaps be liberally construed to demonstrate deliberate indifference, they do not, in a total of 139 pages of pleading, articulate any concrete deprivation of educational benefit. This flaw permeates the entire Second Amended Complaint, both with regard to specific incidents, and when reviewing the totality of the circumstances.
As stated in my previous opinion dismissing Plaintiffs’ claims, Title VI has a high pleading standard. In part due to maintaining their insistence on litigating in anonymity, Plaintiffs have failed in their third attempt to articulate with requisite specificity any concrete resultant harm that has stemmed from their alleged harassment. Even if the incidents alleged fell outside the realm of protected speech or demonstrated an instance where Haverford was deliberately indifferent, in a total of 139 pages of pleading, Plaintiffs do not articulate a single concrete deprivation of educational benefits. Plaintiffs must make their case, and they have failed to do so. Plaintiffs’ Title VI hostile environment claim will be dismissed.
Plaintiffs plausibly allege that the Bias Policy contains clear contractual promises that Haverford has breached. Under the Bias Policy, the College “is required to conduct a thorough inquiry and address all reports of bias incidents of which it becomes aware.” Once a complaint is filed, a Bias Reporting Committee (“BRC”), including Vice President Young and Dean McKnight, performs an “initial screening process and determines whether the case will proceed.” If the BRC determines that the incident “does not constitute an act of violation of the policy,” the BRC “will communicate with the reporting individuals to inform them of the decision.” If the BRC determines that “there is sufficient information in the report for potential violation of the policy,” the matter is escalated to a Bias Incident Response Team (“BIRT), who then determines whether there is a sufficient basis to launch a formal investigation. If a formal investigation is found warranted, the BIRT will inform the reporting individual with a written notice.
Discovery will shed light on how many complaints were in fact filed, and what happened to complaints received. If the College never communicated further with each individual complainant here, Plaintiffs cannot know whether their complaints were appropriately investigated, and allegations that complainants did not receive a response would support an inference that their complaints were not investigated. See Canaan, 760 F.Supp.3d at 335-36 (where the Court found that the Retaliation Policy was not merely aspirational and instead promised that violators of the policy would be subject to reasonable disciplinary action). Failure to conduct an initial review and notify Plaintiffs of the outcome of that review would itself constitute a breach of the plain terms of the Bias Policy. Plaintiffs therefore plausibly allege that Haverford failed to honor its Bias Policy and therein breached their contract.
Although Plaintiffs plausibly plead the existence of a contract and breach, none of Plaintiffs’ allegations demonstrate resultant harm. To the extent that Plaintiffs seek compensatory damages for a diminution in the value of their education, there are insufficient facts pled to support such a theory. But under Pennsylvania law, a plaintiff may recover nominal damages where they have shown a breach of contract, even if they are unable to show damages flowing from the breach. Thorsen, 476 A.2d at 931. Plaintiffs’ breach of contract claim seeking nominal damages thus survives. See Garcia v. Vertical Screen, 592 F.Supp.3d 409, 428 (E.D. Pa. 2022) (“Because nominal damages are available for breach of contract under Pennsylvania law, courts have refused to grant summary judgment on a breach of contract claim solely because a party has not established damages.”).
Antisemitism is ugly and persistently stubborn. But while judges may reflect on the broader world, they can only rule on the facts before them. For the reasons set forth above, Defendant’s Motion to Dismiss will be granted as to Plaintiffs’ Title VI claim and denied as to Plaintiffs’ contract claim.
This dismissal is with prejudice. Plaintiffs have now filed three complaints, involving several rounds of briefing, a detailed memorandum from this Court specifically addressing the pleadings’ shortcomings, and oral argument. Even where an issue is important, as antisemitism certainly is, a legal claim rises and falls on the facts, and Plaintiffs here have failed in three separate attempts to present facts sufficient to state a Title VI claim. See In re: Domestic Drywall Antitrust Litig., No 13-2437, 2016 U.S. Dist. LEXIS 81673, 2016 WL 3453147, at *4 (E.D. Pa. June 22, 2016) (holding that dismissal with prejudice was warranted where “Defendants have already expended resources filing motions to dismiss in response to each of Plaintiffs’ three complaints,” and “Plaintiffs have thus had two opportunities to amend their complaint to respond to Defendants’ argument.”). Oral argument was suffused with emotional rhetoric, giving this Court little comfort in the prospect for further refinement of facts adequate to support a claim.
• It is claimed that Haverford tolerates and perpetrates a hostile educational environment in violations of Title VI of 1964 Civil Rights Act.
• Plaintiff did not show that school was deliberately indifferent to known acts of harassment that were so severe, pervasive and objectively offensive that they deprived the victim of access to an educational activity or benefit.
• The Court must examine the totality of circumstances such as the frequency of the conduct, the severity, whether it is physically threatening or humiliating, or mere offensive utterance, whether it unreasonably interferes with the student’s performance.
• Plaintiff did not articulate any concrete harm stemming from allegations.
• Plaintiff’s strategy distinguishes this case from other recent federal actions challenging antisemitism on college campuses where individuals or small groups of individual students brought claims that could easily be traced from an incident to its resolution, or lack thereof.
• Gartenberg v. Cooper Union distinguished.
• To establish a Title VI hostile environment claim, a plaintiff must show severe or pervasive harassment, deliberate indifference to that harassment, and a resultant deprivation of educational benefits, which plaintiffs failed to do here.
• Court is more concerned about first amendment rights of protesters than Title VI rights of plaintiffs.
• Deliberate indifference must be proven according to the court.
• Court will let the contract breach claim go forward, although the court said there would be no damages other than nominal damages if plaintiff prevailed.
• The court also is disturbed that except for one person, the claims were brought anonymously and did not therefore trace inappropriate behavior of the defendants to those individual plaintiffs.
• Court was clearly upset with the number of times the plaintiff had to amend, and the court was still not satisfied.
• The Court noted the oral argument was suffused with emotional rhetoric giving the court little comfort in the prospect for further refinement of facts adequate to support a claim.