Court Rejects (Largely on First Amendment Grounds) Title VI Lawsuit Over Alleged Anti-Semitism at Haverford College

An excerpt from the 12K+-word opinion by Judge Gerard McHugh (E.D. Pa.) yesterday in Landau v. Corp. of Haverford College (for more, read the whole opinion, and I've also posted separately about the court's allowing the breach of contract claim to go forward, though only for nominal damages):

As recognized in my first opinion in this action [see here -EV], 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…. I will therefore grant Defendant's Motion to Dismiss Plaintiffs' Title VI claim ….

[1.] Public, Political Speech is Protected by the First Amendment.

Higher education institutions are prototypical marketplaces of ideas. College campuses have served as historical sites of foment and the breeding grounds for progress. In periods of social unrest, emblematic of the American story, "intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular." Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010).

A court enforcing a federal statute must do so in a way that comports with the Constitution. Although both important, Title VI and the First Amendment are naturally in tension. "A disparaging comment directed at an individual's sex, race, or some other personal characteristic has the potential to create a 'hostile environment'—and thus comes within the ambit of anti- discrimination laws—precisely because of its sensitive subject matter and because of the odious viewpoint it expresses." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001). But "speech on matters of 'public concern'—expression that 'can be fairly considered as relating to any matter of political, social, or other concern to the community'—is entitled to 'special protection' under the First Amendment' and generally 'cannot be restricted simply because it is upsetting or arousing contempt.'" Gartenberg v. Cooper Union (S.D.N.Y. 2025). However noble the objective of nondiscrimination, institutions cannot be threatened with civil liability for declining to censor First Amendment protected speech.

Not all speech is protected by the First Amendment. But there are no allegations here that constitute true threats, incitement, fighting words, obscenity, or any other category of unprotected speech. "Speech 'on matters of public concern, directed to the college community' will generally fail to 'constitute unlawful harassment.'" Gartenberg (citing Rodriguez). A reasonable person should understand that such public speech, "directed to the community at large through generally accepted methods of communication, is very different than targeted, personal harassment, aimed at a particular person." Only one allegation here involved speech targeted at a particular Plaintiff.

It would be a dangerous overreach for federal courts to referee the controversies sparked by campus speech. See Keyishian v. Bd. of Regents (1967) (the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom."); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791, 1817 (1992) ("The government cannot escape First Amendment scrutiny for its speech restriction by forcing someone else, on pain of liability, to implement that restriction."). That responsibility instead belongs to college administrators, and perhaps more importantly, to students—who harness the immense power to talk with one another and change minds, even when doing so demands courage. But where Haverford declined to take action to suppress or regulate pure speech on matters of obvious public concern directed at the campus community, civil liability cannot be imposed, for a robust First Amendment remains the bedrock of a democratic society.

Many of Plaintiffs' allegations fall into the category of pure, protected speech. Although Plaintiffs may have found much of this speech reprehensible, there is no legal cause of action for upset feelings. The following incidents fall within this category.

[i.] The "Weaponization of Covid" Lecture

In March 2024, Haverford students advertised a lecture with the title "Mass Death on all Fronts: Israel's weaponization of Covid against Palestinians." Plaintiffs allege that there were "many complaints" from students, alumni, parents, and Jewish community members, who thought this lecture was a dog whistle to the age-old blood libel. {The blood libel is an antisemitic trope dating back to the second century BCE that accuses Jewish people of spreading disease and using the blood of Christian children to prepare their Passover matzah.} Haverford did not cancel the event but encouraged the event organizers to change its name. In response, the event organizers changed its title to "COVID in the time of Genocide: Teach-in on how Israel uses COVID as a tool for settler colonialism in Palestine," which Plaintiffs contend "was even more overtly antisemitic than the old one."

Even if offensive and received by some as antisemitic, the lecture was pure speech criticizing Israel directed at the general public—precisely the type of speech protected by the First Amendment, and therefore legally inactionable. See Gartenberg (concluding that a controversial talk hosted on campus about the "Uses and Misuses of Holocaust Memory" constituted "pure speech on matters of public concern."). No one was required to attend the lecture, and those who found it offensive could have simply looked away.

[ii.] Flags at the Spring Plenary

The student Plenary plays a central role in social and academic life at Haverford College. At this event, held twice per academic year, the student body gathers as a community to discuss and vote to ratify various policies. Plaintiffs allege that at the Spring 2024 Plenary, one student handed out Palestinian flags to all entering students. Peaceful distribution of political materials is a standard method of political expression directed at the public, whether it be leaflets, stickers, or in this case, flags.

There are no allegations that this student only handed flags to students she thought might be Jewish. Nor is it alleged that any student was forced to take a flag, because peer pressure, however strong, is not the same thing as coercion. Whatever discomfort any Plaintiff (understandably) felt, what the Second Amended Complaint describes is another instance of purely political expression protected by the First Amendment. See Gartenberg (classifying student distribution of flyers inviting members of the college community "to celebrate the anniversary of the first intifada" as "pure speech on matters of public concern.").

[iii.] Student Organization Supports the Liberation of Palestine "By All Means Necessary"

Plaintiffs also take issue with the name and mission of a student organization on campus. What was originally "Bi-Co Students for Peace" changed its name to "Bi-Co Students for the Liberation of Palestine." {"Bi-Co" refers to Bryn Mawr and Haverford Colleges.} At the same time, the organization announced that it supported "the liberation of Palestine through the complete dismantling of the apartheid settler colonial state of Israel, by all means necessary." From Plaintiffs' perspective, the phrase "by all means necessary" is an implicit threat of violence and an endorsement of Hamas' October 7th terror tactics. Although Plaintiffs may dislike the organization's new expressed mission, the organization's messaging directed at the entire college campus cannot, without more, be construed as a genuine threat targeting Jewish people….

[iv.] Social Media Posts on Non-Haverford Accounts

Plaintiffs raise several concerns about posts made on non-Haverford, private social media accounts. First, Plaintiffs allege that an anonymous member of Jews at Haverford was disappointed by his peers' personal Instagram stories in the wake of October 7th. This Plaintiff conveyed his reaction to these external posts in the Haverford Political Science messaging system. In his reflection, the Plaintiff included a screenshot of a graphic that, he alleges, many students posted immediately following the attacks, promoting Palestinian resistance and depicting the silhouette of a paraglider, reminiscent of the October 7th attackers..

Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent. Consistent with my earlier opinion here and in Tannous v. Cabrini (E.D. Pa. 2023), I reject the proposition that criticism of Israel is invariably antisemitic. And although some of the posts could easily be conceived as offensive, none of the posts can be construed as anything other than protected political speech. Beyond that, Plaintiffs do not attempt to explain how Haverford could regulate students' and faculty's private social media content, offering no basis on which it could assert such invasive authority….

Certainly some speech can be proscribed, but such speech is not present in this case. The Third Circuit has cautioned that "when laws against harassment attempt to regulate oral or written expression … however detestable the views may be, we cannot turn a blind eye to the First Amendment implications." Saxe. And as Judge Cronan cogently observed in Gartenberg, "[r]egardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in-between, it is not a proper basis on which to impose civil liability." The allegations above are not legally actionable under Title VI.

[2.] Deliberate Indifference is an Exceedingly High Standard Not Met by the Allegations Here.

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 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 requir[ing] courts to 'defer to colleges' decisions to err on the side of academic freedom." Gartenberg (citing Rodriguez). Institutions are not expected to be perfect or clairvoyant. Along these lines, government coercion of speech to adhere to a particular message tampers with First Amendment protections. 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. 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 [some details omitted for space reasons, but are available here -EV].

[i.] Haverford's Post-October 7th Statements

Plaintiffs assert that Haverford's failure to issue an appropriate statement in the immediate aftermath of the October 7th attacks caused "hurt and dismay." They further contend that when Haverford did issue a responsive statement just two days later, it did not denounce the Hamas attacks as terrorism. But the statement identified the attack as one of "several tragedies across the globe," and however inadequate that may be in the eyes of Plaintiffs, matters of nuance and emphasis in the wording of a statement cannot serve to show deliberate indifference.

Plaintiffs also discuss several comments made by Haverford administrators that they found to be in poor taste. For example, Vice President Nikki Young purportedly spoke at a vigil for the Haverford student tragically shot while in Vermont for Thanksgiving, where she linked the shooting to the "genocide" Israel was committing against Palestinians. Plaintiffs describe this message as "divisive, misleading, and antisemitic," and express that they cannot trust Vice President Young "to take seriously their concerns about antisemitic harassment and discrimination."

At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.

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. 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.

[ii.] The Nova Movie Screening

In Spring 2024, at the behest of Jewish leadership and faculty members, Haverford played a movie for the campus community about the Nova Festival that was the site of the October 7th Hamas attacks. In reaction to this event, Haverford protestors demanded "an apology from President Raymond for her having the temerity to invite 'Zionists' to campus." But President Raymond never issued an apology. Remarkably, rather than credit Raymond for rejecting the protestors' demand, Plaintiffs instead argue that President Raymond showed deliberate indifference by not taking the opportunity to chastise the protestors.

Title VI is not a portal for students to litigate their general dissatisfaction with the conduct of administrators or to advance their view of how contentious issues should be handled on campus. It sets an exacting standard for what constitutes a sufficiently hostile environment to justify imposition of civil liability. There is no basis whatsoever, either under Title VI, nor within the confines of the First Amendment, for a court to hold a college administrator liable for failing to convey a specific message that students would have liked to see….

[vii.] The Spring 2024 Encampment and "Liberated Zone"

In Spring 2024, students set up their second encampment on the main college green, barring access to Founders Hall. The encampment consisted of tents, banners, and the declaration of a "Liberated Zone," where only those committed to the protests' objectives were "permitted" to enter. Plaintiffs do not indicate how those who supported the protest and those who did not were differentiated, making it unclear why students could not pass through, even if uncomfortably. Cf. Frankel v. Regents of Univ. of Cal. (C.D. Cal. 2024) (only students who voiced support for the protest were issued a wristband and permitted to cross the encampment); Felber v. Yudof (N.D. Cal. 2011) (event organizers set up "check points" where students dressed as soldiers carrying realistic-looking simulated assault weapons demanded passing students to state whether or not they were Jewish).

As with their sit-in allegations, Plaintiffs aver that "any person who walked by the Encampment and did not express support for this goal was shouted at and insulted while they were concluding their academic semester and preparing for final exams." Plaintiffs do not indicate that Jewish students were singled out or targeted for appearing to be Jewish. Beyond making studying more difficult in some amorphous way, Plaintiffs do not aver that these protests had any material impact on their education. Cf. Frankel ("some students missed finals because they were blocked from entering classrooms, and others were evacuated in the middle of finals.") (cleaned up).

The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. There are no allegations that the encampment escalated from chants and posters to physical aggression, nor are there allegations that Plaintiffs made any reports of serious resultant harm, beyond frustration with the protest itself and dissatisfaction with the College's response.

College administrators need not be perfect. They need not even be good. They just need to behave in a way that is not clearly unreasonable in light of the circumstances known at the time. Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days. It is also a defensible conclusion that intervention could have triggered an even larger and more disruptive backlash. Plaintiffs' dissatisfaction does not state a claim for violation of their civil rights….

Taking the facts pleaded as true, Haverford failed to amplify all student voices evenly, took too soft an approach to campus regulation, and failed to communicate as boldly and effectively as Plaintiffs would have liked. The question is not, however, whether Haverford could have handled each situation better. Under Title VI, the question is whether Haverford was so indifferent to known acts of harassment that it caused students to undergo harassment or made them more vulnerable to it, and thereby undermined the students' education. And even taking all these allegations as a whole, Plaintiffs' pleading does not plausibly support a finding of deliberate indifference, especially where countervailing First Amendment concerns are considered in evaluating the often-fragile balance college administrators must strike….

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 [with prejudice] as to Plaintiffs' Title VI claim ….

Joshua W. B. Richards and Levi R. Schy (Saul Ewing LLP) represent Haverford.