JEWS AT HAVERFORD v. THE CORPORATION OF HAVERFORD COLLEGE

Filing 33

MEMORANDUM AND/OR OPINION. SIGNED BY DISTRICT JUDGE GERALD A. MCHUGH ON 1/6/25. 1/6/25 ENTERED AND COPIES E-MAILED.(bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALLY LANDAU, HJSB, HJSC, and
JEWS AT HAVERFORD
v.
THE CORPORATION OF
HAVERFORD COLLEGE

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McHUGH, J.

CIVIL ACTION
No. 24-2044

January 6, 2025
MEMORANDUM

The filing that commenced this action set forth a panoply of complaints, as did an amended
version, spread across 430 paragraphs. But 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. To
survive, a complaint must plausibly set forth facts sufficient to support a recognized cause of
action. Applying that standard here, Plaintiffs’ complaint falls well short of the mark. I will
therefore grant Defendant Haverford’s motion to dismiss, albeit with leave to amend.
I.

Standard of Review
Haverford moves for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction

and Rule 12(b)(6) for failure to state a claim. Within the Third Circuit, motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6) are governed by the well-established standard set
forth in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), and motions to dismiss
under Rule 12(b)(1) are governed by a similar standard set forth in Ballentine v. United States, 486
F.3d 806, 810 (3d Cir. 2007). In both instances, the Court must accept as true all material
allegations laid out in the complaint and construe those facts in favor of the nonmoving party. See

Warth v. Seldin, 422 U.S. 490, 501 (1975); Storino v. Borough of Point Pleasant Beach, 322 F.3d
293, 296 (3d Cir. 2003).
II.

Overview
Following Hamas’ attack on Israel in October 2023, the Israel-Palestine conflict has been

at the center of public discourse. This debate is especially evocative on college campuses, and
Haverford College is no exception.
Plaintiffs Jews at Haverford, Alumni Ally Landau, and two anonymous students 1
(collectively “Plaintiffs”) allege that over the past year, Haverford College (“Haverford” or “the
College”) has become a bastion of antisemitism that is tolerated and at times perpetuated by the
College. Am. Compl., ¶¶ 18-21, ECF 14. Plaintiffs contend that they have been personally
affected by the eruption of disorder on campus. Id. ¶¶ 45-50. 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.

Id.

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. Id. ¶¶ 404-423.
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.

1

Rather than isolating instances of

The two anonymous students, HJSB and HJSC, are permitted to proceed under pseudonym in publicfacing filings for the duration of this litigation. See ECF 29.

2

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.” Am. Compl. ¶ 333. 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. Id. ¶¶ 340-344. Elsewhere, Plaintiffs include comments made by a professor who
does not even attend Haverford. Id. ¶ 189. 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. Id. ¶¶ 56-103. 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. 2 As a threshold matter, as I have done previously, 3 I reject Plaintiffs’ embedded
2

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.

3

Tannous v. Cabrini Univ., 697 F.Supp.3d 350, 367, n. 10 (E.D. Pa. 2023) (upholding termination of
professor by university concerned by tone and content of social media posts about Israel).

3

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.” Yeomalakis
v. F.D.I.C., 562 F.3d 56, 61 (1st Cir. 2009).
III.

Discussion
Standing
As a threshold issue, Plaintiffs narrowly show sufficient Article III standing. To establish

standing, a plaintiff must have “1) suffered an injury in fact, 2) that is fairly traceable to the
challenged conduct of the defendant, and 3) that is likely to be redressed by a favorable decision.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
Plaintiffs assert that both current and former individual student Plaintiffs have standing to
seek damages. Opp’n to Mot. to Dismiss, at 21-22, ECF 23 (“Mem. in Opp’n”). The record is
thin as to the specific injuries incurred by the individual Plaintiffs and whether those injuries are
of the sort that could be financially compensated, the sole relief available. 4 The Amended
Complaint, however, generally sets forth several instances that, if experienced by these individual

4

Only compensatory damages would be available in this case, as emotional distress and punitive damages
are not available under Title VI or in contract law. See Barnes v. Gorman, 536 U.S. 181, 187-188 (2002)
(as to punitive damages); Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 221-222 (2022) (as
to damages for emotional distress).

4

Plaintiffs, would reasonably demonstrate injury in fact. The individual Plaintiffs also plainly
allege that they were “injured” by the College’s deliberate indifference to antisemitic harassment
on campus. Am. Compl. ¶¶ 46-48, 416-417, 422; see also Ballentine, 486 F.3d at 810 (citing
Lujan, 504 U.S. at 561) (“general factual allegations of injury may suffice.”). I therefore find that
the individual student Plaintiffs have standing to seek damages. See also Kestenbaum v. President
& Fellows of Harvard Coll., No. 24-10092, 2024 WL 3658793, *4 (D. Mass. Aug. 6, 2024)
(finding that a graduated student had standing to seek monetary relief for a Title VI hostile
environment harassment claim based on antisemitism).
Jews at Haverford also has standing to pursue injunctive relief at this juncture. An
association has standing to sue on its members’ behalf when (1) at least one of its members would
have standing to sue individually, (2) the interests it seeks to protect are “germane to the
organization’s purpose,” and (3) the claims and types of relief requested do not require individual
participation of the members. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342-343
(1977). Plaintiffs aver that “Jews at Haverford” is an “unincorporated association consisting of
Jewish students and faculty at Haverford College, as well as Haverford alumni and parents of
students and alumni, who are Jewish and share a commitment to the existence of Israel as a Jewish
state.” Am. Compl. ¶ 45. Although Plaintiffs provide no additional detail on the association, or
its membership, structure, or functions, despite several hundred pages of briefing, at this stage I
am bound to accept Plaintiffs’ factual representations. 5

5

The Court cautions Plaintiffs that should information arise in subsequent discovery that casts doubt on the
existence of Jews at Haverford as an active membership association, this Court may sua sponte revoke its
finding of Article III standing.

5

Jews at Haverford nominally satisfies each of the three criteria for associational standing.
First, at least one member of Jews at Haverford would have standing to sue in their own right,
assuming that at least one person in the association experienced antisemitic harassment and
notified the College. Second, as a group allegedly comprised of Jewish Haverford community
members dedicated to the existence of Israel, holding the College accountable for the spread of
antisemitism where it intersects with anti-Zionism is surely “germane to the organization’s
purpose.” Hunt, 432 U.S. at 343. Finally, because Jews at Haverford seeks only injunctive relief,
the association could litigate most claims without the participation of individual members,
supporting the grant of associational standing. See Pa. Psychiatric Soc. v. Green Spring Health
Servs., Inc., 280 F.3d 278, 284 (3d Cir. 2002) (suits for injunctive relief often require less
individual involvement than would a suit for monetary relief, making injunctive relief actions
better suited for associational standing).
I will therefore deny Defendant’s Motion to Dismiss under 12(b)(1).
Title VI Hostile Environment
Plaintiffs claim that Haverford created a hostile environment in violation of Title VI by
failing to act, or at times choosing not to act, in the face of widespread antisemitism on campus.
Am. Compl. ¶¶ 17-19. Although Title VI broadly protects students on federally funded college
campuses from antisemitic discrimination, Plaintiffs fail to plead all required elements of the
hostile environment claim they seek to articulate. Accordingly, I will dismiss their Title VI claim
with leave to amend.
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

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discrimination. See, e.g. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987)
(finding that “the Court of Appeals erred in holding that Jews cannot state a § 1982 claim against
other white defendants”); T.E. v. Pine Bush Central School Dist., 58 F.Supp.3d 332, 354-355
(S.D.N.Y. 2014) (holding that “regardless of whether they assert their claims on ‘national origin’
or ‘race,’ Plaintiffs are within their rights to assert a claim under Title VI based on anti-Semitic
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.” U.S. Dep’t of Educ., OCR Dear Colleague Letter: Shared Ancestry or Ethnic
Characteristics (Nov. 7, 2023). I conclude therefore that Title VI applies. 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. Am. Compl. ¶ 57; Mot. to Dismiss, at 11, ECF 17. 6 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, 7 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. 8 Deciphering when criticism of Israel or promotion of the Palestinian cause veers into

6

Page numbers refer to ECF pagination.

7

Some of those complexities, for example, are captured by a general summary created by The AntiDefamation League. (Sep. 1, 2016), www.adl.org/resources/backgrounder/zionism.

8

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.

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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
Courts in this Circuit recognize the “hostile environment” theory of Title VI 9 suits for
intentional discrimination. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 n. 5 (3d Cir.
2001). 10 A plaintiff raising a hostile environment claim must show that 1) they experienced
harassment that was “so severe, pervasive, and objectively offensive” that it deprived the victim
of access to an educational activity or benefit, and 2) that the school was “deliberately indifferent”
to known acts of harassment. 11 Davis, as Next Friend of LaShonda D. v. Monroe County Bd. of
Educ., 526 U.S. 629, 633 (1999).
To determine whether a hostile environment exists, courts consider whether the alleged
conduct was sufficiently severe or pervasive. See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d
Cir. 2017) (conduct need only be severe or pervasive, not necessarily both); see also Yael Canaan
v. Carnegie Mellon Univ., No. 23-2107, 2024 WL 5145899, at *11 (W.D. Pa. Dec. 17, 2024). 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

9

Title VI of the Civil Rights Act provides, “[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
10

District courts in this Circuit analyzing Title VI hostile environment claims frequently cite Whitfield v.
Notre Dame Middle Sch., 412 Fed. Appx. 517 (3d Cir. 2011), even though it is nonprecedential.
11

This assumes that the Plaintiff has already made a showing that they are a member of a protected class
under Title VI and that they were qualified for the relevant educational opportunities.

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educators’ management decisions. Davis, 426 U.S. at 651-652. In determining whether a hostile
environment exists, courts should consider the totality of the circumstances. Castleberry, 863 F.3d
at 264.
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. See Saxe, 240 F.3d at 205.
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. Mem. in Opp’n, at 36.
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., 669 F.3d 714
(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. Id. at 716. The Sixth Circuit applied a totality of the circumstances
test, much like the test in the Title VI context, 12 and 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. Id. at 718.

12

Hostile environment claims originated in Title VII workplace harassment context. Meritor Savings Bank
v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (for something to
constitute harassment under a “hostile environment” theory, it must both 1) be viewed as harassment by the
victim and 2) be objectively severe or pervasive enough that a reasonable person would agree that it is
harassment). Title VI hostile environment claims often reference and incorporate caselaw from Title VII.

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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.
Id. at 719. The Sixth Circuit reasoned that courts may not infer collective knowledge where
plaintiffs operate in a large space with multiple buildings. Id. (“In a physically large and
partitioned workplace like the separated warehouses in this case, it is inappropriate for us to infer
that Plaintiffs perceived events they did not discuss in their depositions.”). 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. Id.
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. 13 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.” Mem. in Opp’n, at 35. 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.
Am. Compl. ¶ 303. 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

13

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.

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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. 14
Harassment perpetrated by a student or teacher is only actionable where the school’s action
or lack thereof constitutes “deliberate indifference.” Davis, 526 U.S at 642. A school may not be
held liable for harassment based on a respondeat superior theory. See Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 285 (1998). Instead, a school can only be liable for harassment where its
indifference effectively “caused” the discrimination. Davis, 526 U.S at 642. Logically, therefore,

14

The Amended Complaint broadly states that there are “several students who have explicitly brought
complaints of this antisemitic behavior,” and that there was a “large volume of complaints from Jewish
students, parents, and alumni.” Am. Compl. ¶¶ 316, 310. These sweeping statements do not indicate which
instances were complained about, whether the person who heeded the complaint had authority to act, and
whether any complaint procedure was properly followed.

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a central element in pleading deliberate indifference for a Title VI claim is that administrators
knew about the incidents that allegedly comprise the hostile environment, because a school’s
conduct can only be evaluated in light of known circumstances. Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 273 (3d Cir. 2014) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 666
(2d Cir. 2012)); see also StandWithUs Ctr. for Legal Justice v. Mass. Inst. of Tech., No. 24-10577,
2024 WL 3596916 (D. Mass. July 30, 2024) (holding that a university’s unsuccessful efforts to
contain escalating-on campus protests were insufficient to show deliberate indifference, based on
what they knew at the time).
Additionally, a school can only act with deliberate indifference where the administrators
with notice have authority to act. In other words, the administrator must be in a position to exercise
“substantial control over both the harasser and the context in which the known harassment occurs.”
See Davis, 526 U.S. at 645 (“Only then can the [school] be said to ‘expose’ its students to
harassment or ‘cause’ them to undergo it.”).
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.” Am.
Compl. ¶ 118. 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.” Id. Assuming that the Dean failed to meet
the moment in how he responded to the butchery of Hamas, students’ disappointment with an

12

administrator’s choice of words, even deeply felt disappointment, cannot be deemed deliberate
indifference. For the Supreme Court has made clear school administrators are accorded wide
latitude in matters of campus governance. See, e.g., Davis, 526 U.S. at 648 (“[C]ourts should
refrain from second-guessing the disciplinary decisions made by school administrators.”).
Second, Plaintiffs aver that posters advertising a Shabbat dinner and a discussion of Jewish
identity were torn down, Am. Compl. ¶ 160, 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.” Id. ¶ 161. 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,” id., 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.” Id. ¶ 162.
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.” Id. ¶ 163. Plaintiffs
repeatedly state that the student was never punished, and even won a student-selected award at
graduation. Id. ¶¶ 7, 164, 349-356. Importantly, however, Plaintiffs do not plead that the alleged
perpetrator was identified at any point to administrators, or that any administrator was made aware

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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.” Am. Compl. ¶ 182. 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. Am. Compl. ¶ 147. 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.
Ultimately, Plaintiffs repeatedly fail to show that they endured severe or pervasive
harassment, either through their own experiences or through their awareness of others’
experiences, that the College had notice of the alleged harassment, and that its response or lack of

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response can be considered deliberate indifference. Because Plaintiffs do not plead the elements
of a Title VI hostile environment discrimination claim, dismissal is warranted.
Contract Claims
Plaintiffs also raise several breach of contract claims grounded in assorted College policies.
To state a claim for breach of contract, a plaintiff must “set forth facts regarding (1) the existence
of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3)
resultant damages.” Doe v. Haverford Coll., 656 F.Supp.3d 540, 545 (E.D. Pa. 2023) (citing
McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010)). Under Pennsylvania law,
relationships between private colleges and their students are contractual in nature. Kimberg v.
Univ. of Scranton, No. 06-1209, 2007 WL 405971, at *3 (M.D. Pa. Feb. 2, 2007) (citing Swartley
v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999)).

“Written guidelines, policies, and

procedures” distributed to students over the course of enrollment may constitute the terms of such
contracts. Id.
A plaintiff suing a private college for breach of contract must assert allegations that “relate
to a specific and identifiable promise that the school failed to honor.” David v. Neumann Univ.,
187 F.Supp.3d 554, 558 (E.D. Pa. 2016); see also Miller v. Thomas Jefferson Univ. Hosp., 908
F.Supp.2d 639, 655 (E.D. Pa. 2012) (a plaintiff must “point to specific undertakings in the
[contract] that were not provided.”) (emphasis added). When interpreting university policies as
contracts, each provision must be read in the context of the larger policy – a plaintiff may not
cherry-pick helpful language and disregard the rest. Murphy v. Duquesne Univ. Of The Holy
Ghost, 777 A.2d 418, 432 (Pa. 2001) (“the parties’ contractual intent cannot be gleaned by ignoring
all but one sentence in the Contract, and then reading that sentence out of context.”). Finally, a
plaintiff may not enforce a policy to which they are merely a third party, such as a promise from

15

the college to some other student, absent a specific intention to grant third party enforcement
authority. Guy v. Liederbach, 459 A.2d 744, 751 (1983).
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. . .”. Am. Compl. ¶¶ 144-145. 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.” Mot. to Dismiss, Ex. 4, at 2 (emphasis added). A contractual term must
be read in its context. Murphy, 777 A.2d at 432. 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.”
Am. Compl. ¶ 146. 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. Am. Compl. ¶ 147. But Plaintiffs point to no

16

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.” See Mot. to Dismiss, Ex. 5, ¶ 4(d). 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. Am. Compl. ¶ 419. 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. Am. Compl. ¶¶ 122124. 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,

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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.
Am. Compl. ¶ 121. 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. For
example, in Kestenbaum, a case in which a Jewish graduate student sued Harvard University for
alleged antisemitic harassment, the Court held that plaintiff Kestenbaum’s breach of contract claim
predicated on Harvard’s nondiscrimination policy survived a motion to dismiss. Kestenbaum,
2024 WL 3658793, at *8. But Kestenbaum’s pleadings were far more specific as to how the
precise policy at issue was allegedly breached. For example, he cited to the provisions in Harvard’s
policy that establish complaint procedures regarding instances of discrimination. Id. Kestenbaum
then articulated two distinct instances where he properly launched a complaint and where Harvard
allegedly failed to follow their own procedures, laying out the precise flaw in Harvard’s behavior
for each complaint. Id. Thus, Kestenbaum’s “cognizable breach of contract theory” was that

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“Harvard failed to follow the complaint-handling procedures that the Policies prescribe,” not that
Haverford broadly violated its non-discrimination policy. Id.
Here, in stark contrast, 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.” McShea, 995 A.2d at 340.
Not a single paragraph in the entire Amended Complaint references any injury stemming directly
from Haverford’s alleged breaches of contract. Thus, Plaintiffs’ pleading deficiency is two-fold.
Because none of Plaintiffs’ breach of contract claims meet the requisite pleading standard,
they will be dismissed.

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IV.

Conclusion
For the reasons set forth above, the motion to dismiss will be granted on 12(b)(6) grounds.

The Court does not doubt that reactions to events in Israel and Palestine have created many
uncomfortable moments for Jewish students at Haverford, as on other campuses. But that does
not by itself create a violation of federal law. Plaintiffs seek to advance a specific legal theory
under Title VI, and that comes with the obligation to comply with federal pleading standards.
Plaintiffs have already availed themselves of the opportunity to amend as of right in response to
Haverford’s first motion to dismiss. This dismissal will be without prejudice, but if counsel
chooses to file a second amended complaint, he would be well advised to file a tailored pleading
that directly and specifically addresses the elements of the claims he advances, to the extent that
he can do so in compliance with the obligations imposed by Federal Rule of Civil Procedure 11.

/s/ Gerald Austin McHugh
United States District Judge

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