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Court Allows Breach of Contract Claim for Haverford's Allegedly Failing to Respond to Anti-Semitism Complaints—But Only for Nominal Damages
"So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's 'double secret probation'—I find the demarcation 'draft' to be of no legal import."
In yesterday's Landau v. Corp. of Haverford College, Judge Gerard McHugh (E.D. Pa.) rejected plaintiffs' Title VI claims (see here for more), but allowed the breach of contract claim to go forward, albeit only for nominal damages:
Plaintiffs allege that although they filed complaints to Haverford about many of the instances [of alleged anti-Semitic behavior], they did not receive any response, violating the policies that Haverford represents as active on their website. The absence of demonstrable harm does not prohibit this claim, because Pennsylvania law permits contract claims for nominal damages. Plaintiffs allege that Haverford failed to evenhandedly enforce its "Anti-Discrimination, Harassment, and Bias Policy." 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." "Written guidelines, policies, and procedures" distributed to students over the course of enrollment may constitute the terms of such contracts.
[1.] Existence of a Valid Contract
Plaintiffs rely on a combination of two Haverford documents as the basis for their claim. They first allege that Haverford has breached its promise set forth in its Non-Discrimination Statement to provide an employment and educational environment free from all forms of unlawful discrimination on the basis of "religion, national origin, ancestry, citizenship … or any other characteristic protected by law." Plaintiffs then allege that this Non-Discrimination policy is enforceable through the College's Anti-Discrimination, Harassment, and Bias Policy ("Bias Policy"), which itself is a binding contract, and details a series of procedures that Haverford has failed to follow. Plaintiffs attach what they contend is an active and binding version of the Bias Policy that they downloaded from Haverford's website. Plaintiffs also plead that the policy is directly adjacent to the portal where students can, and did, submit "bias incidents."
Haverford disputes the validity of the contract, pointing to the fact that the attached PDF of the Bias Policy, the same Bias Policy that was linked on Haverford's website on the date of oral argument, is clearly labeled as a "draft." Haverford argues that because the Policy was designated as a draft, it was not in force during any of the incidents alleged. Notably, Haverford does not provide any alternative policy that was in place, further asserting that even if the Court finds that the Bias Policy was operative, Plaintiffs' allegations of breach are too vague to state a contract claim.
As a threshold matter, I take it as highly plausible that some bias policy existed at Haverford during the 2023-2024 academic year. Haverford offers no explanation as to why a non-operative Bias Policy would be hosted on Haverford's website, directly adjacent to a live portal to submit bias incidents. At a minimum, students would have reasonably believed that there was a policy under which complaints could be submitted. And surely whatever bias policy existed would allow recourse for instances of antisemitism, unless Haverford would have me infer that it had no concern for its Jewish students.
So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's "double secret probation"—I find the demarcation "draft" to be of no legal import. Moreover, I am obligated at this stage to accept Plaintiffs' allegation that a bias policy was operative (whether the posted draft policy or a different unspecified policy). Dismissal of the contract claim pre-discovery on this ground would be premature.
[2.] Terms of the Contract and its Breach
Turning to the terms of the contract and its alleged breach, Plaintiffs cannot state a contract claim based on the Non-Discrimination Statement alone, for it is purely aspirational language that lacks the specificity to constitute enforceable promises. But 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.
Plaintiffs contend that they filed reports through Haverford's bias incident portal about many of the instances discussed herein. Plaintiffs also contend that they did not receive any response or observe any remediation regarding any of their reported incidents. This would imply that no incidents were considered at the initial BRC stage, for even if a bias complaint is ultimately terminated at this stage, Haverford is still obligated under the Bias Policy to "communicate with the reporting individuals to inform them of their decision." At the very least, Plaintiffs were due notice that their investigations were terminated upon initial BRC review. But Plaintiffs aver that the complainants here never received such communication.
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. 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.
[3.] Resultant Harm
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. Plaintiffs' breach of contract claim seeking nominal damages thus survives.
Jerome Marcus and Lori Lowenthal Marcus (The Deborah Project) represent plaintiffs.
