StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 24-10577-RGS

STANDWITHUS CENTER FOR LEGAL JUSTICE,

KATERINA BOUKIN, and MARILYN MEYERS

v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY

MEMORANDUM AND ORDER ON

DEFENDANT’S MOTION TO DISMISS

July 30, 2024

STEARNS, D.J.

This putative class action against Massachusetts Institute of

Technology (MIT) challenges the adequacy of MIT’s response to acts of

antisemitism occurring on its campus. Plaintiffs StandWithUs Center for

Legal Justice (SCLJ), Katerina Boukin, and Marilyn Meyers claim that,

after the bloody October 7, 2023 Hamas terrorist attack on Israel, repeated

incidents of antisemitic conduct took place on the MIT campus, causing

Jewish and Israeli students to fear for their personal safety. The First

Amended Complaint (FAC) alleges four counts: deliberate indifference to a

hostile educational environment impacting Jewish and Israeli students in

violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d

(Count I); failure to prevent a conspiracy to interfere with civil rights in

violation of 42 U.S.C. § 1986 (Count II); negligence (Count III); and breach

of contract (Count IV).1 Plaintiffs seek compensatory and punitive damages

and prospective injunctive relief.

MIT now moves to dismiss the FAC, lodging challenges under Rules

12(b)(1) and 12(b)(6). On July 24, 2024, the court convened a hearing on

MIT’s motion. After careful consideration and commendable argument

from both sides, the court will allow MIT’s motion.

BACKGROUND

The relevant facts, drawn from the FAC and taken in the light most

favorable to plaintiffs, are as follows. On October 7, 2023, the Palestinian

Sunni Islamist terrorist group Hamas committed a violent terrorist attack

on Israel.2 The day after the attack, multiple MIT student groups –

including the Coalition Against Apartheid (CAA) and Palestine@MIT –

released a joint statement “hold[ing] the Israeli regime responsible for all

unfolding violence.” FAC ¶ 147. The statement was posted on CAA’s and

1 Counts I-III are alleged by all plaintiffs. Count IV is alleged by

Boukin and Meyers individually and, for injunctive relief only, on behalf of

a putative class of “[a]ll Jewish and/or Israeli students enrolled at MIT

after October 7, 2023, who did not participate in the pro-Palestine protests

described [in the FAC].” First Am. Compl. (FAC) (Dkt. # 40) ¶ 366.

2 “Hamas” is an acronym for Harakat al-Muqawama al-Islamiya,

which translates roughly into Islamic Resistance Movement. In 1997, the

U.S. Department of State designated Hamas as a Terrorist Organization

under § 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189.

Palestine@MIT’s blogs, was sent to every undergraduate student’s email,

and was shared on Palestine@MIT’s Instagram account. See id. ¶ 145. On

October 19, 2023, CAA hosted a rally, which Meyers attended. A protestor

shouted at Meyers and a friend, “Your ancestors . . . didn’t die to kill more

people.” Id. ¶ 156. Others at the rally chanted phrases such as “Palestine

will be free, from the river to the sea.”3 Id. ¶ 157. Student groups continued

demonstrating throughout the semester, walking out of classes, organizing

“die-ins,” and protesting in Lobby 7, a “major thoroughfare” on the MIT

campus. See id. ¶¶ 159-162, 169-188.

On November 9, President Sally Kornbluth issued a statement

warning the Lobby 7 protestors that their conduct violated MIT’s Code of

Conduct; threatening the students with disciplinary action, including

potential suspension; and ordering them to vacate Lobby 7 immediately.4

3 “From the river to the sea” refers to the area between the Jordan

River and the Mediterranean Sea, in which Israel, the West Bank, East

Jerusalem, and the Gaza Strip are located. While some claim the phrase is

a call for peace in the region, many, including the majority of members of

the U.S. House of Representatives, condemn the phrase as “outrightly

antisemitic.” See H.R. Res. 883, 118th Cong. (2023).

4 MIT provided documents intended to show that MIT began

responding forcefully to the intimidation of Jewish and Israeli students on

October 10, 2023. See Mem. of Law in Supp. of Def. MIT’s Mot. to Dismiss

the Am. Compl. (Mot.), Ex. 1 (Dkt. # 42-2). As these are not properly

before the court on a 12(b)(6) motion (and they have no bearing on MIT’s

After deciding that suspending students could lead to “collateral

consequences . . . such as visa issues,” MIT changed course and chose to

suspend student violators from only non-academic campus activities. Id.

¶ 184. Around the same time, MIT also provisionally suspended CAA, see

id. ¶ 125 n.3, and created the Standing Together Against Hate initiative,

which was intended to “spearhead efforts to combat antisemitism at MIT,”5

id. ¶ 201.

As the protests continued over the academic year, many Jewish and

Israeli MIT students, including plaintiffs and SCLJ’s members, felt

abandoned by the school’s administration. For example, when a member of

Congress asked President Kornbluth whether “calling for the genocide of

Jews violate[s] MIT’s code of conduct,” President Kornbluth gave a

hairsplitting legalistic response: “If targeted at individuals, not making

public statements.” Id. ¶ 198. And when students complained to MIT’s

Institute Discrimination & Harassment Response Office (IDHR) about the

perceived antisemitic incidents, IDHR responded that the complained-of

conduct “did not seem to violate the policies that IDHR has jurisdiction

12(b)(1) motion), the court is unable to consider them. See Trans-Spec

Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).

5 MIT disbanded the initiative in February of 2024. FAC ¶ 202.

over” and, moreover, that Jews are not members of a protected class. Id.

¶ 205.

The protest activity at MIT reached a boiling point on April 21, 2024,

when students erected an encampment on Kresge lawn (across from Hillel,

an organization promoting Jewish campus life), protesting Zionism and

MIT’s ties to Israeli academics and government contractors. See id. ¶ 221.

A Jewish student promptly emailed MIT Chancellor Melissa Nobles

expressing dismay over the encampment, prompting Chancellor Nobles to

reply that MIT was “working to move in a constructive direction with those

who are protesting.” Id. ¶ 224.

A week after the encampment appeared, President Kornbluth

released a video statement. She informed students that the encampment

violated MIT policy but, in the interest of protecting free speech, MIT had

elected not to forcibly remove the student protestors. See MIT Community

Message from President Kornbluth (April 27, 2024),

https://president.mit.edu/writing-speeches/video-transcript-mit-

community-message-president-kornbluth.6 President Kornbluth directed

the MIT Police Department to patrol the area around the encampment 24

6 Plaintiffs cite – and link – to the transcript of President Kornbluth’s

speech in the FAC, so the court may consider it. See Beddall v. State St.

Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998).

hours a day. See id. On May 6, President Kornbluth warned student

demonstrators that if they did not take down the tents and leave by

2:30pm, they would face disciplinary proceedings. FAC ¶ 238. All but five

students eventually complied with President Kornbluth’s ultimatum. See

Sally Kornbluth, Update on the Encampment (May 6, 2024),

https://orgchart.mit.edu/letters/update-encampment. Despite the

departure of most of the protestors, that evening, “an individual jumped

over the fencing surrounding the [mostly abandoned encampment],

causing a surge, and soon the area was breached,” and the encampment

started anew. FAC ¶ 239. Tensions continued to rise over the next several

days. On May 8, after protestors defaced Israeli flags, “[t]he day ended

with more suspensions.” Sally Kornbluth, Actions This Morning (May 10,

2024), https://orgchart.mit.edu/letters/actions-encampment. The next

day, protestors blocked Vassar Street – a main campus thoroughfare – and,

after refusing to disperse, nine of them were arrested. Id. On May 10, after

further police pressure, the encampment was discontinued. See id.

MIT maintains various policies that govern student conduct,

including the Code of Conduct, Chalking Policy, and Events Policy,

(together, the Policies). The Policies proscribe, inter alia, physical violence,

behavior that has “serious ramifications” for the wellbeing of any student,

and discrimination. If a student violates the Policies, they are subject to a

salmagundi of discipline, including a warning, probation, suspension,

expulsion, or degree revocation. The Chalking Policy limits where students

may chalk and hang posters and prohibits the removing or defacing of other

groups’ posters. The Events Policy bans expression used to harass,

discriminate against, or target any groups or individuals.

DISCUSSION

Subject Matter Jurisdiction

MIT challenges the court’s jurisdiction on three grounds: (1) SCLJ

lacks associational standing to pursue any of the claims; (2) all plaintiffs

lack standing to obtain prospective injunctive relief; and (3) Count I is

unripe. To establish standing, plaintiffs must, “for each claim that they

press and for each form of relief that they seek,” “establish each part of a

familiar triad: injury, causation, and redressability.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 431 (2021); Katz v. Pershing, LLC, 672 F.3d 64, 71

(1st Cir. 2012). Standing to seek prospective relief hinges on a showing that

the plaintiff is “likely to suffer future injury.” City of L.A. v. Lyons, 461 U.S.

95, 105 (1983).

An association has standing to sue on its members’ behalf when

“(a) its members would otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit.” Hunt v. Wash.

State Apple Advert. Comm’n, 432 U.S. 333, 342 (1977). Because an

association’s members are not parties to the case, to recover damages on

behalf of its members, the association must show that the damages are

“common to the entire membership.” Warth v. Seldin, 422 U.S. 490, 515

(1975). Similar conditions apply to injunctive relief; if “member

circumstances differ and proof of them is important,” the association lacks

standing to obtain an injunction for its members. N.H. Motor Transp.

Ass’n v. Rowe, 448 F.3d 66, 72 (1st Cir. 2006), quoting Pharm. Care Mgm’t

Ass’n v. Rowe, 429 F.3d 294, 314 (1st Cir. 2005) (Boudin, J., concurring).

In assessing ripeness, the court considers “the fitness of the issues for

judicial decision and the hardship to the parties of withholding court

consideration.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967),

abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). A

claim is not fit for decision if it “rests upon contingent future events that

may not occur as anticipated, or indeed may not occur at all.” City of Fall

River v. F.E.R.C., 507 F.3d 1, 6 (1st Cir. 2007), quoting Texas v. United

States, 523 U.S. 296, 300 (1998).

The court perceives no jurisdictional bar to this case proceeding.

Although MIT is correct that SCLJ lacks standing to seek damages on

Counts I and III,7 Boukin and Meyers have standing to seek damages for

these counts. Because the FAC plausibly alleges ongoing injuries, Boukin

and Meyers also have standing to seek prospective injunctive relief. See

Roe v. Healey, 78 F.4th 11, 21 (1st Cir. 2023). Nor is the court persuaded

that SCLJ’s members need to be joined as parties to the case. Even if

SCLJ’s claims require “proof specific to individual members of the

association,” this is no bar to associational standing for purposes of

injunctive relief. See Playboy Enters., Inc. v. Pub. Serv. Comm’n of P.R.,

906 F.2d 25, 35 (1st Cir. 1990).

Plaintiffs’ Title VI claim is also ripe. MIT argues that it should not

have to “defend the adequacy of its response [to on-campus antisemitism]

while that response [is] underway.” Mot. at 21. Boukin’s and Meyers’s

damages claims depend, however, on past events that have fully unfolded,

7 SCLJ seeks to recover compensatory and punitive damages on

behalf of its members. Because Title VI is “much in the nature of a

contract,” the scope of available damages relief is contractual in nature.

Barnes v. Gorman, 536 U.S. 181, 186-187 (2002), quoting Pennhurst State

Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (emphasis omitted).

Contractual damages, however, are not “common to the entire

membership.” See Warth, 422 U.S. at 515. So, too, is the case with tort-

based damages, which are designed to redress individualized non-economic

losses.

so there can be no dispute that they are ripe. See Ernst & Young v.

Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). And MIT’s

arguments that plaintiffs’ claim for prospective injunctive relief is unripe

turn largely on the merits of the dispute, i.e., whether MIT has been

deliberately indifferent and whether this alleged deliberate indifference is

“sufficiently likely to happen” when campus life resumes this fall. See Gun

Owners’ Action League, Inc. v. Swift, 284 F.3d 198, 205 (1st Cir. 2002).

Because the ripeness issue is intertwined with the merits, the court need

not rule on it at this juncture. See Valentin v. Hosp. Bella Vista, 254 F.3d

358, 363 n.3 (1st Cir. 2001)

Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). If

the allegations in the complaint are “too meager, vague, or conclusory to

remove the possibility of relief from the realm of mere conjecture,” the

complaint will be dismissed. SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.

2010) (en banc).

(a) Count I: Title VI

Title VI forbids recipients of federal funds from discriminating “on

the ground of race, color, or national origin.” 42 U.S.C. § 2000d. The

parties agree that discrimination against Jewish students comes within the

statute’s prohibition. A Title VI hostile environment claim8 has five

elements: (1) plaintiffs were “subject to ‘severe, pervasive, and objectively

offensive’ . . . harassment”; (2) the harassment “caused the plaintiff to be

deprived of educational opportunities or benefits”; (3) the school “knew of

the harassment”; (4) the harassment occurred “in [the school’s] programs

and activities”; and (5) the school “was deliberately indifferent to the

harassment such that its response (or lack thereof) is clearly unreasonable

in light of the known circumstances.” Porto v. Town of Tewksbury, 488

8 Although the FAC also gestures at a direct discrimination theory,

plaintiffs have not pursued this theory in their briefing on the motion to

dismiss. At any rate, plaintiffs’ direct discrimination theory is indubitably

one of vicarious liability. Although there is no Supreme Court or First

Circuit precedent squarely addressing the issue, the Supreme Court has

held that a school district cannot be held vicariously liable under Title IX

for the actions of its teachers. See Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 288 (1998). The remedial schemes for Titles VI and IX

generally mirror one another. See Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246, 258 (2009); see also Doe v. Galster, 768 F.3d 611, 617 (7th

Cir. 2014) (“Title VI and Title IX are so similar that a decision interpreting

one generally applies to the other.”). It follows that vicarious liability is

unavailable under Title VI. See Corbett ex rel. Corbett v. Browning, 2024

WL 862160, at *3 (D. Mass. Feb. 13, 2024).

F.3d 67, 72-73 (1st Cir. 2007), quoting Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629, 650 (1999).

Deliberate indifference is a “stringent standard of fault.” Bd. of the

Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). “[A] claim that an

institution could or should have done more does not establish deliberate

indifference.” M.L. ex rel. D.L. v. Concord Sch. Dist., 86 F.4th 501, 511 (1st

Cir. 2023). Rather, plaintiffs must allege facts showing that MIT’s response

to the incidents was “so lax, so misdirected, or so poorly executed as to be

clearly unreasonable under the known circumstances.” Fitzgerald v.

Barnstable Sch. Comm., 504 F.3d 165, 175 (1st Cir. 2007), rev’d on other

grounds, 555 U.S. 246 (2009). The test is not to be viewed through the lens

of hindsight; instead, the court must consider whether MIT responded in a

clearly unreasonable manner based on what it knew at the time. See Porto,

488 F.3d at 74; see also Farmer v. Brennan, 511 U.S. 825, 844 (1994) (even

where officials are aware of a risk of harm, they “may be found free from

liability if they responded reasonably to the risk, even if the harm ultimately

was not averted”). Boiled down to its essence, deliberate indifference

means affirmatively choosing to do the wrong thing, or doing nothing,

despite knowing what the law requires. Tempered by this understanding,

the court cannot find that MIT acted with deliberate indifference.

The FAC compellingly depicts a campus embroiled in an internecine

conflict that caused Jewish and Israeli students great anguish. Plaintiffs

frame MIT’s response to the conflict largely as one of inaction. But the facts

alleged tell a different story. Far from sitting on its hands, MIT took steps

to contain the escalating on-campus protests that, in some instances, posed

a genuine threat to the welfare and safety of Jewish and Israeli students,

who were at times personally victimized by the hostile demonstrators. MIT

began by suspending student protestors from non-academic activities,

permitting them only to attend academic classes, while suspending one of

the most undisciplined of the pro-Palestine student groups. These

measures proved ineffective when, in April of 2024, protestors erected the

Kresge lawn encampment. MIT immediately warned students of

impending disciplinary action, but its threat went unheeded when student

demonstrators “surge[d]” and “breached” the largely evacuated

encampment. When MIT’s attempt to peacefully clear the encampment

proved futile, it suspended and arrested trespassing students.

In hindsight, one might envision things MIT could have done

differently. Indeed, some campus administrators elsewhere, as plaintiffs

allege, reacted to the protests differently (and with more positive results)

than MIT. But that is not the applicable standard. That MIT’s evolving and

progressively punitive response largely tracked its increasing awareness of

the hostility that demonstrators directed at Jewish and Israeli students

shows that MIT did not react in a clearly unreasonable manner.

The court adds some concluding thoughts. The pain and hurt felt by

plaintiffs and the Jewish and Israeli students that they seek to represent is

genuine and fully understandable. But at bottom, the fault attributed to

MIT is its failure to anticipate the bigoted behavior that some

demonstrators – however sincere their disagreement with U.S. and Israeli

policies – would exhibit as events unfolded. The transgressors were, after

all, mostly MIT students whom the school (perhaps naively) thought had

internalized the values of tolerance and respect for others – even those with

whom one might disagree – that a modern liberal university education

seeks to instill. To fault MIT for what proved to be a failure of clairvoyance

and a perhaps too measured response to an outburst of ugliness on its

campus would send the unhelpful message that anything less than a

faultless response in similar circumstances would earn no positive

recognition in the eyes of the law. Count I will thus be dismissed.

(b) Count II: 42 U.S.C. § 1986

Plaintiffs seek to hold MIT liable under § 1986 for knowingly failing

to prevent the formation of a conspiracy consisting of MIT student groups

to deprive plaintiffs of their civil rights.9 An essential element of this claim

is proof of at least one of the conspiracies defined by 42 U.S.C. § 1985. See

Gattineri v. Town of Lynnfield, 58 F.4th 512, 516 (1st Cir. 2023). Plaintiffs

look to § 1985(3), which prohibits conspiracies undertaken to deprive,

“either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the

laws.” 42 U.S.C. § 1985(3).

To plead an actionable § 1985(3) conspiracy, plaintiffs must allege:

(1) the existence of a conspiracy; (2) that the “purpose of the conspiracy

[was] ‘to deprive the plaintiff[s] of the equal protection of the laws’”; (3) at

least one overt act was committed in furtherance of the conspiracy; and

(4) “either injury to person or property, or deprivation of a constitutionally

protected right” followed as a consequence of the illegal undertaking.

Alston v. Spiegel, 988 F.3d 564, 577 (1st Cir. 2021), quoting Péréz-Sánchez

v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). To plausibly plead

that a conspiracy existed, plaintiffs must allege either “facts indicating an

agreement among the conspirators” or facts “sufficient to support a

reasonable inference that such an agreement was made.” Parker v.

9 The court is aware of no case (and plaintiffs cite none) holding a

party liable under § 1986 for failing to prevent a conspiracy in which the

party was not involved. Nonetheless, the court will proceed on the shaky

assumption that § 1986 liability could attach in these circumstances.

Landry, 935 F.3d 9, 18 (1st Cir. 2019). The requisite agreement must be to

deprive plaintiffs of their civil rights. See Bray v. Alexandria Women’s

Health Clinic, 506 U.S. 263, 275 (1993) (the right’s “impairment must be a

conscious objective of the enterprise”).

Plaintiffs fail to plead any conspiratorial agreement. They claim that

MIT student groups (1) jointly announced rallies, walkouts, and the

encampment; (2) had overlapping membership; and (3) recruited

participants for (and participated in) the encampment. These allegations

establish that student groups acted in concert to plan protest events

advocating their shared views, but nothing in the FAC raises a plausible

inference that the groups agreed to plan the events “at least in part for the

very purpose of” depriving plaintiffs of their civil rights. See id. at 276. Nor

does plaintiffs’ contention that the “clear practical effect” of the protests

“was to impede the rights of Jewish and Israeli students on campus” rescue

their claim. See Pls.’ Mem. of Law in Opp’n to Def.’s Mot. to Dismiss the

Am. Compl. (Dkt. # 46) at 26. “A conspiracy is not ‘for the purpose’ of

denying equal protection simply because it has an effect upon a protected

right.”10 Bray, 506 U.S. at 275. Count II will therefore be dismissed.

10 It is also unclear whether student groups, rather than their

constituent members, can form a § 1985(3) conspiracy. In the somewhat

analogous civil RICO context, “[i]t is only a person, or one associated with

(c) Counts III and IV: Negligence and Breach of Contract

Having dismissed all claims over which the court has original

jurisdiction (and because plaintiffs have not pled diversity jurisdiction), the

court will decline to exercise supplemental jurisdiction over plaintiffs’ state-

law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988);

28 U.S.C. § 1367(c)(3).

ORDER

For the foregoing reasons, MIT’s motion to dismiss the federal claims

(Counts I and II) is ALLOWED. The court declines to exercise jurisdiction

over the state-law claims (Counts III and IV). The Clerk will close the case.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE

an enterprise, not the enterprise itself, who can violate” RICO. Schofield v.

First Commodity Corp. of Bos., 793 F.2d 28, 30 (1st Cir. 1986). Other

courts have concluded in the § 1985(3) context that “fail[ure] to allege with

any specificity the persons who agreed to the alleged conspiracy” dooms a

civil rights conspiracy claim. E.g., A Soc’y Without a Name v. Virginia, 655

F.3d 342, 347 (4th Cir. 2011).