The Volokh Conspiracy
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Claim Over Penn's Alleged Knowing Toleration of Anti-Semitic Behavior Dismissed,
though the court found the plaintiffs had standing to bring the claim, and gave them one last chance to amend their complaint to plausibly allege enough to allow the case to go forward.
From today's decision by Judge Mitchell Goldberg (E.D. Pa.) in Yakoby v. Trustees of Univ. of Pa.:
Plaintiffs, Jewish students attending the University of Pennsylvania ("Penn"), allege it engaged in antisemitic conduct that warrants a federal lawsuit. Plaintiffs' 111-page amended complaint sets out a wide variety of general allegations, complaints, historical and current events, and alleged antisemitic incidents that allegedly took place not just on Penn's campus, but elsewhere in the United States and the world. The amended complaint also includes sweeping allegations of ideological, philosophical, religious, and political concerns and grievances, that have nothing to do with a federal lawsuit.
It is unclear why Plaintiffs' counsel deemed it necessary to allege so many unrelated facts when doing so is directly contrary to federal pleading requirements. Indeed, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain only a "short and plain statement of the claim showing that the pleader is entitled to relief."
Penn has filed a Motion to Dismiss and Strike the Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12. After review of Plaintiffs' amended complaint, I find that it fails to sufficiently allege the facts necessary to plausibly state viable claims under Title VI, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and for breach of contract. Consequently, I will grant Penn's motion. I will, however, provide Plaintiffs one last opportunity to amend its complaint, but only as to the Title VI and breach of contract claims….
Plaintiffs Eyal Yakoby, Jordan Davis, and Noah Rubin are Jewish undergraduate students attending the University of Pennsylvania. All three are members of Students Against Antisemitism ("SAA"), "a not-for-profit corporation organized under the laws of the State of Delaware, formed to defend human and civil rights, including the right of individuals to equal protection and to be free from antisemitism in higher education, through litigation and other means."
Viewing their amended complaint as a whole, Plaintiffs essentially allege that since the October 7, 2023 attack on Israel, Penn has permitted, tolerated and/or facilitated multiple antisemitic incidents on its campus that have created a hostile educational environment for Jewish students….
The court concluded plaintiffs had standing to bring their claims:
Penn's subject matter jurisdiction challenge may be interpreted as being both factual and facial in nature insofar as it argues the amended complaint fails to plead the requisite elements of standing on its face and the actual facts of the case do not show Plaintiffs sustained actual injuries that were caused by any conduct by Penn. By arguing that Plaintiffs' claims are not yet ripe for adjudication, Penn factually contests the court's subject matter jurisdiction, submitting documentary evidence showing it has long had policies in place opposing antisemitism in all its forms on its campus. These documents also allegedly establish that since October 7, Penn has developed action plans to address and "combat" antisemitism and the expression of religious and racial hatred on its campus, and has increased its security measures to ensure the safety and well-being of its Jewish students….
Annexed to the Plaintiffs' response in opposition to Penn's motion are Declarations from Plaintiffs Yakoby and Davis attesting to incidents of antisemitism which they experienced personally and to the fact that the antisemitic campus hostilities are ongoing. Although it is difficult to parse through the 312 paragraphs of allegations contained in the Amended Complaint, I find Plaintiffs have alleged various incidents where they were personally subjected to derogatory language, verbally harassed, and/or targeted because they were Jewish. Because of these incidents, the numerous protests, and the Palestine Writes Festival, Plaintiffs assert they have been forced to miss classes and other campus activities and experiences, have felt threatened and/or unsafe in their residences, classrooms, and other places on campus, have felt as though they needed to refrain from wearing certain articles of clothing or jewelry or refrain from speaking out on matters of importance to them, and/or have otherwise felt as though they had to hide or obscure their Jewish identities. As a result, Plaintiffs aver they have lost educational and extracurricular opportunities and lost the value of the tuition and fees paid to Penn.
Plaintiffs also point to some seven Penn policies which they allege can be viewed as giving rise to contractual obligations on the part of the University and on which they purportedly relied in deciding to attend Penn. These facts, read in the light most favorable to Plaintiffs, are enough to make out injury in fact that is "fairly traceable" to the defendant's "challenged actions." These allegations and submissions raise material factual questions which cannot be resolved at this time given the current posture of this case without conducting a plenary trial, and are enough to overcome (at least for now) Penn's Rule 12(b)(1) factual and facial jurisdictional challenge to Plaintiffs' standing….
I reach the same conclusion with regard to Students Against Antisemitism. Again, to have associational standing, the individual members must have standing in their own right, the interest asserted must be germane to the organization's purpose, and neither the claim nor the relief requested must require the participation of the individual members in the lawsuit.
The Amended Complaint in this case avers that SAA is "a not-for-profit corporation organized under the laws of the State of Delaware, formed to defend human and civil rights, including the right of individuals to equal protection and to be free from antisemitism in higher education, through litigation and other means." In paragraphs 87–91, it is alleged that "SAA Member #1, a Modern Middle East Studies major" was "targeted" by Professor Ahmad Almallah, a lecturer in the English Department, "for her opinion on his antisemitic tirades and pitted her against other students in the class," and that on one occasion when SAA Member #1 opined that she was grateful for the Israeli-West Bank Wall because it saved lives, she was harassed for thirty minutes by Professor Almallah and other students. Professor Abdulrahman Atta, a professor teaching Elementary Arabic I and Professor Huda Fakhreddine are alleged to have required their students, including Jewish members of SAA, to attend the Palestine Writes Literature event, and to have punished those who did not attend.
While the Amended Complaint does not contain any other details about SAA, or the necessity for its individual members' participation in this suit, in light of its described purpose "to defend human and civil rights, including the right to be free from antisemitism in higher education," and given that it is alleged that several of its individual members have faced antisemitism, I find that associational standing has also been adequately pled. After all, "[w]hen facing a motion to dismiss, an association plaintiff 'need only make a plausible allegation of facts establishing each element of standing.'" …
But the court concluded that plaintiffs didn't adequately plead a Title VI violation on Penn's part:
But while Plaintiffs spend an inordinate amount of space expounding on long-past injustices and incidents, some dating as far back as 1993, and complaining that Penn did not take the actions or respond to their reports, letters, or emails in the manner which Plaintiffs wanted, Plaintiffs have failed to plead any facts showing either intentional discrimination or deliberate indifference on the part of Penn. Indeed, I could find no allegations that Penn or its administration has itself taken any actions or positions which. even when read in the most favorable light, could be interpreted as antisemitic with the intention of causing harm to the Plaintiffs. At worst, Plaintiffs accuse Penn of tolerating and permitting the expression of viewpoints which differ from their own. And the Amended Complaint acknowledges that Penn has responded to the antisemitic incidents and expressions of antisemitism on its campus and has made efforts to redress these problems. {For example, among other things, Plaintiffs acknowledge that Penn has formulated and announced an "Action Plan to Combat Antisemitism."}
Deliberate indifference is a very high bar and Plaintiffs' dissatisfaction with Penn's responses is not enough to establish there was an official decision by Penn to not remedy a Title VI violation and that this deliberate indifference effectively caused racial discrimination. (emphasis added).
The court likewise concluded that plaintiffs didn't adequately plead breach of contract, either:
Plaintiffs assert that "at least seven" of Penn's issued "policies designed and intended to protect students from discrimination, harassment, and intimidation," give rise to "an express contractual relationship between Penn and the individual Plaintiffs and SAA's Jewish and/or Israeli members by virtue of their enrollment at Penn …" These are: ["](1) the Code of Student Conduct, (2) Guidelines on Open Expression, (3) Nondiscrimination Statement, (4) Charter of the Student Disciplinary System, (5) Principles of Responsible Conduct, (6) Equal Opportunity and Affirmative Action Policy, and (7) Faculty Handbook.["]
In paragraphs 41 – 57 of their Amended Complaint, Plaintiffs describe the foregoing policies in terms of their sharing of the University's common mission to provide a world class education to its diverse student body through, inter alia, the promulgation and enforcement of policies of non-discrimination, freedom of thought, inquiry, speech and lawful assembly, respect and tolerance for others and the law. Plaintiffs go on to allege that Penn breached its agreements by failing to comply with those policies.
Reading the Amended Complaint as a whole and in the most favorable light to the Plaintiffs, there is no foundation upon which a finding could be made that the foregoing policies constituted a promise or guarantee by Penn that everyone within its ambit and its community would adhere to those stated policies or that its mission would be achieved. Instead, Plaintiffs allege only that "[t]hrough the documents and materials it publishes and provides to students, Penn makes contractual commitments to its students concerning bias-related abuse, harassment, intimidation, and discrimination." In the absence of an alleged failure by Penn to perform a specific contractual promise, I cannot find that the alleged agreements' terms are sufficiently definite or enforceable, or that there was a manifestation by the parties that they intended to be bound by the agreement. Even read in a favorable light, Count II of the Amended Complaint alleges nothing more than a generalized failure to meet its students' expectations, and will therefore be dismissed.
And it held the same as to the Pennsylvania Unfair Trade Practices and Consumer Protection Law:
[Plaintiffs'] averments fail to plead a viable cause of action under the UTPCPL. Examining the alleged representations made by Penn in the various policies, procedures, guidelines, code and/or handbooks identified in the Amended Complaint in totality, they are clearly nothing more than general statements regarding Penn's educational philosophy and mission. On their face and giving them a plain reading, they are decidedly not confusing, deceptive, or misleading, and it is inconceivable how they could be so interpreted or viewed as giving rise to a contractual obligation to prevent antisemitic language, acts, or incidents from occurring on Penn's campus. Hence, any reliance by Plaintiffs on such an interpretation is inherently unreasonable and unjustifiable.
Additionally, if as alleged, Plaintiffs Rubin and Davis saw and were aware of Penn's unfair, deceptive, and misleading acts, statements, and representations before they enrolled, their reliance would clearly not have been reasonable.
The court concluded:
For the reasons outlined, Plaintiffs' Amended Complaint is dismissed for failure to plead claims on which relief can be granted under Title VI, breach of contract, and the UTPCPL. However, a district court must provide a plaintiff with an opportunity to make a curative amendment even if the plaintiff does not seek leave to do so unless such amendment would be inequitable or futile. I find that amendment of Count III would be futile as the facts which Plaintiffs have put forward simply cannot sustain a claim under the UTPCPL. I cannot, however, definitively make that determination with respect to Counts I and II. Because it appears that the deficiencies noted in those counts could potentially be resolved through the filing of a Second Amended Complaint, leave to amend the Title VI and breach of contract claims shall be granted.
However, and as has been repeatedly observed throughout this Opinion, many of the more than 300 paragraphs in the Amended Complaint contain language which is unnecessarily inflammatory and "impertinent," and immaterial allegations that have virtually nothing to do with the claims which Plaintiffs are endeavoring to raise. Filing of yet another complaint would be Plaintiffs' third bite at the apple. Plaintiffs are cautioned that if they choose to file a third complaint, the additional allegations must be alleged in good faith and in compliance with Rules 8(a) and 11.
