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Pro-Israel Jewish Students Suing Haverford College for Hostile Environment Harassment Can Proceed Pseudonymously
"[T]he presence of masked protesters in the room, who defied the authority of Haverford administrators and had to be removed by campus security, with a chanting group of protestors outside, would reasonably be viewed as a form of intimidation going far beyond the 'normal' chaos of a confrontational campus protest."
From today's decision by Judge Gerald Austin McHugh (E.D. Pa.) in Landau v. Haverford College:
On May 13, 2024, Plaintiff "Jews at Haverford," which purports to be an association of individuals associated with Haverford College, initiated this Title VI action against Defendant Haverford College. An amended complaint followed, adding Haverford Alumni Ally Landau and current students "HJSB" and "HJSC" as individual plaintiffs to the lawsuit. Plaintiffs generally contend that Haverford College both enables and perpetuates a hostile educational environment for its Jewish students and faculty who support the state of Israel, in violation of Title VI and assorted contractual promises between the school and its students.
Plaintiffs HJSB and HJSC now move to proceed under pseudonym in this case. Haverford, to its credit, does not oppose the Plaintiffs' request to proceed under pseudonym in all public-facing filings.
But Haverford's consent does not end the inquiry, because open courts are a cornerstone of the U.S. judiciary. Since pseudonyms interfere with the public's right to access judicial proceedings, such motions must only be granted in exceptional circumstances….
The court concluded that this case involves such an exceptional circumstance, but not just because of fear of "purely social and reputational harms":
Plaintiffs first allege that if they were to reveal their identities, they would be subject to social ostracism. Plaintiffs state that they have already been shunned by peers who are aware of their beliefs about Israel, and fear that this isolation would only intensify.
Plaintiffs next allege that their academic performance is in jeopardy. Plaintiffs contend that most classes at Haverford are "communal," where students are "expected to work together." Plaintiffs allege that if the anonymous students' identities were known, it is likely that their classmates would refuse to engage with them, detrimentally impacting the anonymous students' academic experiences.
Further, Plaintiffs allege that certain members of Haverford's faculty may penalize the students should they become aware of the students' beliefs about Israel. For example, Plaintiffs allege that one professor expressed that that he "would not provide any recommendations for students seeking to study either in Israel or about anything related to Judaism." This same professor purportedly referred to Jewish students who oppose his views and support the state of Israel as "racist genocidaires." This professor has allegedly not faced any penalty for these remarks. If these allegations are true, and if Plaintiffs were aware of these remarks, their ability to participate fully in their coursework could well be hindered by significant self-censorship and anxiety.
Courts in this Circuit do not recognize purely social and reputational harms, without more, as valid bases to prevail on this factor. See Doe v. Princeton Univ. (D.N.J. 2020) (A plaintiff's "fear of social stigmatization, loss of employment opportunity, or loss of educational opportunity are insufficient to support a plaintiff's request for anonymity."); see also Doe v. Univ. of Pennsylvania (3d Cir. 2024) (interlocutory appeal) (Plaintiff's allegation that proceeding under her true identity would limit her ability to be accepted to medical school or secure future employment was insufficient to show a threat of "severe harm."); cf. Doe v. Weintraub (E.D. Pa. 2023) (a threat of severe harm existed where Plaintiff risked criminal prosecution if his identity were revealed during litigation.).
Rather, the court pointed to risk of physical harm:
Here, in addition to the social and reputational fears alleged, Plaintiffs also express fear for their physical safety. In support, Plaintiffs reference an alleged incident where rowdy protestors disrupted a presentation on campus by the Anti-Defamation League entitled "Antisemitism 101." According to Plaintiffs, the night before the presentation, protestors snuck into the room and zip tied all the blinds in the up position "to better intimidate those who assembled." Plaintiffs further allege that during the presentation, a "mob" formed outside the presentation room, "screaming at the tops of their lungs, using bullhorns, banging on pots and pans, and pounding on the windows."
Inside the presentation room, several masked students ripped off their sweatshirts and read messages from a prepared script, refusing to stop when confronted by John McKnight, Dean of the College. Multiple staffers allegedly ran around the room in an effort to address the chaos, and the disrupting students were escorted out by campus security.
For better or worse, confrontational and disruptive protests are a hallmark of much campus activism. That said, several factors here lend credence to Plaintiff's allegations of fear. First, the topic of the presentation, antisemitism, was on its face not political, focusing on attitudes towards Jews, not the nation of Israel.
Second, the presenter, the Anti-Defamation League, is a respected nonpartisan, nonprofit, with a mission to combat hate and promote tolerance. Admittedly, that mission sometimes requires the League to take positions about Israel. Its stated position, however, is that criticism of Israel is an important component of public discourse, and it does not seek to forestall such criticism unless it deems it antisemitic. Stated differently, in objective terms, the League is by no means an alter ego of the Netanyahu administration, and efforts to block a presentation on antisemitism have an overtone that is personal, rather than political in nature.
Finally, the presence of masked protesters in the room, who defied the authority of Haverford administrators and had to be removed by campus security, with a chanting group of protestors outside, would reasonably be viewed as a form of intimidation going far beyond the "normal" chaos of a confrontational campus protest.
I conclude that Plaintiffs' fears regarding their physical safety, when aggregated with their social and academic concerns, narrowly satisfy the threshold showing of a threat of severe harm. { In Doe v. Triangle Donuts, Judge Leeson of this court considered a transgender plaintiff's allegations of past threats of violence, verbal harassment from fellow employees, and the background of "widespread discrimination" against transgender individuals to determine that the plaintiff had sufficiently demonstrated a reasonable fear of "severe harm."} And given the volatility of the Israeli-Palestinian conflict on campuses nationwide, I deem these fears reasonable.
Consequently, this factor weighs in favor of anonymity, albeit only slightly….
[Given all the factors relevant to the pseudonymity analysis,] the balance is extremely close, with [the factor discussed above] only narrowly tipping the scale toward allowing the use of pseudonyms. Despite the closeness of the issue, I place some weight on the uniquely volatile backdrop of this case as described in my analysis of factor two above. Due to the particularly contentious and identity-bound nature of the Israel-Palestine conflict in this moment of international reckoning, I am convinced that Plaintiffs may unnecessarily pay a price if forced to reveal their identities, a result to be avoided where the issue is one of civil rights….
The court, however, made clear that plaintiffs' identities would have to be disclosed to defendant Haverford:
Permission to proceed under pseudonym … does not undermine the fundamental premise that parties must know against whom they are litigating to thoroughly understand the claims asserted and properly defend themselves. Here, Plaintiffs' identities are extremely relevant to salient factual questions even at this early stage of litigation. For example, without knowledge of Plaintiffs' identities, Haverford has no way to discern what each student personally experienced, whether each student provided notice of alleged harassment to any Haverford employees, or whether the anonymous students were individually aware of other alleged harassment elsewhere on campus.
Plaintiffs encourage the Court to fill in the gaps and simply presume that because Haverford is, compared to some institutions, a small campus, everything is common knowledge. But this approach is untenable for a discrimination claim based upon a hostile environment theory, which hinges on proof of widespread harassment, and, where claims are aggregated as Plaintiffs seek to do here, on individual knowledge of the conduct alleged to have created that environment….
For different results in similar cases, see the posts titled No Pseudonymity for Israeli Suing Intel Over Layoff Allegedly Prompted by Complaints Over Boss's Allegedly Pro-Hamas Statements and Court Rejects Pseudonymity in Lawsuit Over "Liberated Ethnic Studies Model Curriculum", though one can argue whether the factual record in this case showed more likelihood of physical harm than in those cases. For more on this general issue, see pp. 1412-14 of The Law of Pseudonymous Litigation.
