Kestenbaum v. President and Fellows of Harvard College

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 24-10092-RGS

ALEXANDER KESTENBAUM and

STUDENTS AGAINST ANTISEMITISM, INC.

v.

PRESIDENT AND FELLOWS OF HARVARD COLLEGE

MEMORANDUM AND ORDER ON

DEFENDANT’S MOTION TO DISMISS

August 6, 2024

STEARNS, D.J.

This case has its roots in an outburst of antisemitic behaviors on the

Harvard University campus following the October 7, 2023 terrorist attack by

Hamas on Israel. The plaintiffs are Alexander Kestenbaum, a Jewish recent

graduate of the Harvard Divinity School, and Students Against

Antisemitism, Inc. (SAA), a non-profit “comprised of voluntary members,

including students at higher education institutions” founded to defend the

rights of individuals “to be free from antisemitism in higher education.”

Second Am. Compl. (SAC) (Dkt. # 63) ¶¶ 19-20. Alleging that Harvard

affirmatively ignored discrimination against Jewish and Israeli students,

plaintiffs sued the University seeking damages and prospective injunctive

relief. The Second Amended Complaint (SAC) is framed in three counts:

deliberate indifference to harassment of and direct discrimination against

Jewish and Israeli students in violation of Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d (Count I); breach of contract (Count II); and breach

of the implied contractual covenant of good faith and fair dealing (Count III).

Harvard now moves to dismiss the SAC, arguing that the claims are

nonjusticiable and that plaintiffs have failed to state a viable claim for relief.

It also moves to strike plaintiffs’ prayer for injunctive relief. On July 24,

2024, the court convened a hearing on Harvard’s motions at which both sides

presented laudably. For the reasons that follow, the court will allow the

motion to dismiss in part and deny it in part and deny the motion to strike.

BACKGROUND

The relevant facts, drawn from the SAC 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 savage terrorist attack on

Israel.1 The day after the attack, more than thirty Harvard student groups

issued a joint statement purporting to “hold the Israeli regime entirely

responsible for all unfolding violence.” Id. ¶ 101. On October 18, 2023, two

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

translates roughly in English to 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.

Harvard student groups organized a metaphorical “die-in” involving

hundreds of students at which members of the protesting groups “harassed

and physically assaulted Jewish students.” Id. ¶¶ 114-115.

Throughout the fall 2023 semester, Harvard student groups, including

Harvard Afro; Boycott, Divestment and Sanctions; Graduate Students for

Palestine; Jews for Liberation; and the Palestinian Solidarity Committee

(PSC),2 regularly demonstrated on campus. Protestors marched through

campus, staged classroom walkouts, and rallied in campus common areas, at

times staying overnight. See id. ¶¶ 116-119, 125-142. During these events,

demonstrators chanted provocative slogans such as “from the river to the

sea,”3 “free Palestine,” and “globalize the intifada.” E.g., id. ¶¶ 100, 113-114,

116, 119, 122, 139, 141, 144. The bullying of Jewish students also spilled into

classrooms. For example, a Harvard Law School Torts professor announced

a final exam focused on the Israel/Gaza conflict (and only changed course

when the Registrar’s Office intervened). See id. ¶ 155. And a Harvard Law

School student who assaulted a Jewish student at the October 18 “die-in” was

2 Harvard Afro and Boycott, Divestment, and Sanctions are not

registered student groups. See SAC ¶ 61.

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. Plaintiffs allege that the phrase is a “genocidal

call for the destruction of Israel and its Jewish inhabitants.” Id. ¶ 72.

permitted to remain in his position as a teaching fellow for a first-year Civil

Procedure course. See id. ¶¶ 115, 126, 153.

Antisemitic episodes persisted and, if anything, intensified into the

spring 2024 semester. On January 2, 2024, Harvard students posted a flurry

of antisemitic messages on a University-wide group app called Sidechat.4

When Kestenbaum reported the messages to Harvard administrators, the

official response was to terminate his access to Sidechat and restrict Sidechat

membership to current undergraduate students. In late January, posters

memorializing Israeli citizens taken hostage by Hamas were vandalized with

messages such as “ISRAEL DID 9/11.” Id. ¶ 195. Soon after, a Harvard

employee emailed Kestenbaum inviting him to debate Israel’s “role in 9/11.”5

Id. ¶ 199.

A flash point ignited in April of 2024, when protesting students erected

an encampment in Harvard Yard, an iconic close in the center of the Harvard

4 These messages included students “proudly accept[ing] the label of

terrorist,” calling a Jewish student a “pedo lover,” claiming that “all of you

Zionists” are “[k]illers and rapists of children,” and referring to a Jewish

student’s nose as “crooked.” Id. ¶ 148.

5 On his social media account “9/11 Guy,” the employee identified

himself as “an ‘anti-Semite’ because [he has] no problem with Jews per se,

just the ones who think there’s a different set of rules for them,” and

questioned whether the October 7 terrorist attacks had truly occurred. Id.

¶ 201. Harvard eventually fired the employee in April of 2024. See id. ¶ 204.

campus. Harvard had cautioned students that “tents and tables[] are not

permitted in the Yard without prior permission,” and that “[s]tudents

violating these policies are subject to disciplinary action.” Id. ¶ 250. Despite

the warnings, Harvard did nothing to stop “[p]eople with backpacks, tents,

suitcases, and carts” from descending on the Yard on April 24 to create a tent

encampment. Id. The encampment was left undisturbed until May 14, when

Interim President Alan Garber negotiated with leaders of the encampment

over the terms of vacating the Yard. In exchange for an end to the

encampment, Garber instructed all Harvard schools to reinstate any student

protestors who had been placed on involuntary leave, promised to expedite

any administrative hearings against these students, and agreed to conduct

the hearings with “leniency.” Garber also offered Harvard Out of Palestine,

an unregistered student group, meetings with Harvard’s governing board to

advocate for divestment of any Harvard endowment ties with Israel.

The ongoing tumult caused many Jewish and Israeli students to fear

for their personal safety and hindered their ability to complete their

academic studies. During one of the protest rallies, demonstrators

blockaded Jewish students in a study room, see id. ¶ 117, and during another,

protestors “surrounded and intimidated” Jewish students, id. ¶ 141.

Protesting students embedded in the encampment followed Kestenbaum

“[e]very time [he] tried to walk through Harvard Yard.” Id. ¶ 258. Some

students felt compelled to doff clothing that might identify them as Jewish

and ceased attending Jewish-sponsored events on campus. Still others

feared walking about campus, missed classes, and felt isolated from their

classmates. E.g., id. ¶¶ 303, 305-307, 309.

Plaintiffs further aver that they feel abandoned by Harvard’s

administration. Although Kestenbaum and SAA members have complained

repeatedly to various Harvard offices and administrators, they claim that the

situation has not improved. E.g., id. ¶¶ 153, 155, 227, 294. And when asked

before the U.S. House of Representatives whether “calling for the genocide

of Jews violate[s] Harvard’s rules of bullying and harassment,” then-

President Claudine Gay disconcertingly replied that “it depends on the

context.” Id. ¶ 163.

According to plaintiffs, Harvard’s response has been not just simply

inadequate but skewed in its bias. For example, after student groups

protested for two weeks in Caspersen lounge, a common student area in the

Harvard Law School, Jewish students asked Harvard deans and

administrators if they could also hold a demonstration in the lounge. Only

after that request was made did Harvard Law Dean of Students Stephen Ball

email the student body that the lounge area is reserved for “personal or small

group study and conversation.” Id. ¶ 127. That edict notwithstanding,

Harvard (at least de facto) permitted pro-Palestine protests in the lounge to

continue until the end of the semester. Harvard required Chabbad, a campus

Hasidic Jewish community center, to remove its Hanukkah menorah from

campus each night to prevent it being vandalized, but it provided 24/7

security to PSC’s “Wall of Resistance.” And although then-President Gay

appointed an Antisemitism Advisory Group in November of 2023, Garber

dissolved the Group before it could make any formal recommendations.6 See

id. ¶¶ 187, 191.

Harvard has a fulsome array of policies that govern student behavior.

These include a Non-Discrimination and Anti-Bullying Policy, Protest Rules,

a Statement on Rights and Responsibilities, Student Organization Policies,

and various student handbooks (together, the Policies). The Policies prohibit

“singling out or targeting an individual for less favorable treatment because

of their protected characteristic” and “unwelcome and offensive conduct that

6 Garber subsequently created a Presidential Task Force on Combating

Antisemitism and appointed Professor Derek Penslar, a professor of Jewish

history, as one of the co-chairs of the Task Force. Penslar’s appointment

“triggered an immediate public outcry” because he has argued that

antisemitism that does not involve Jewish people being “attacked physically”

should be “generally acceptable” and has claimed that “veins of hatred run

through Jewish civilization.” Id. ¶ 192. Penslar remains a co-chair of the

Task Force.

is based on an individual or group’s protected status.” Id. ¶¶ 47, 51. They

also bar “any unauthorized occupation of a University building, or any part

of it, that interferes with the ability of members of the University to perform

their normal activities” and “interference with freedom of movement or with

freedom from personal force or violence.” Id. ¶¶ 51, 57. Violation of the

Policies is said to be “subject to appropriate discipline.” E.g., id. ¶ 51.

DISCUSSION

Subject Matter Jurisdiction

Harvard lodges a twofold factual jurisdictional challenge: (1) plaintiffs

lack standing, and (2) their claims are not ripe. Because Harvard

“controvert[s] the accuracy (rather than the sufficiency) of the jurisdictional

facts asserted by the plaintiff[s],” plaintiffs’ jurisdictional averments are

“entitled to no presumptive weight; the court must address the merits of the

jurisdictional claim by resolving the factual disputes between the parties.”

Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). But if the

genuinely disputed jurisdictional facts are “inextricably intertwined with the

merits of the case,” the court may defer ruling on the jurisdictional issue. Id.

at 363 n.3.

(a) Standing

To establish Article III standing, plaintiffs must satisfy three familiar

requirements: “(i) that [they] ha[ve] suffered or likely will suffer an injury in

fact, (ii) that the injury likely was caused or will be caused by the defendant,

and (iii) that the injury likely would be redressed by the requested judicial

relief.” F.D.A. v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024). If the

injury has not yet occurred, it must be “certainly impending.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 402 (2013). To seek prospective relief,

plaintiffs must allege an “ongoing injury or a sufficient threat that the injury

will recur.” Roe v. Healey, 78 F.4th 11, 21 (1st Cir. 2023).

An association has standing to sue on its members’ behalf when (1) at

least one of its members would have standing to sue individually, (2) the

interests it seeks to protect are “germane to the organization’s purpose,” and

(3) the claims and types of relief requested do not require individual

participation of the members. Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333, 342 (1977). If the association seeks damages but “alleges no

monetary injury to itself,” associational standing is precluded unless the

damages claims are “common to the entire membership.” Warth v. Seldin,

422 U.S. 490, 515 (1975). Injunctive relief, by contrast, has “generally been

held particularly suited to group representation.” Camel Hair & Cashmere

Inst. of Am., Inc. v. Assoc. Dry Goods Corp., 799 F.2d 6, 12 (1st Cir. 1986).

In assessing the third Hunt prong in cases seeking injunctive relief, the

“nature of the claim” aspect thus plays a distant second fiddle to the type of

relief sought. See Warth, 422 U.S. at 515 (the third prong “depends in

substantial measure on the nature of the relief sought”).

The court concludes that Kestenbaum has standing to seek damages to

redress the harms he alleges that he suffered while a student at Harvard

Divinity, and SAA has standing to seek prospective injunctive relief.7

Harvard contends that SAA cannot seek injunctive relief because Title VI

7 Kestenbaum lacks standing to pursue prospective injunctive relief; he

graduated from Harvard, so “there is simply ‘no ongoing conduct to enjoin’

presently affecting” him. Harris v. Univ. of Mass. Lowell, 43 F.4th 187, 192

(1st Cir. 2022), quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st Cir.

2021). This may be better framed as a mootness problem. See, e.g., Camreta

v. Greene, 563 U.S. 692, 710-711 (2011). But either way, Kestenbaum’s claim

for equitable relief is not justiciable.

For its part, SAA lacks standing to seek damages. Compensatory

damages are available under Title VI, but punitive and emotional distress

damages are not. See Barnes v. Gorman, 536 U.S. 181, 187 (2002) (punitive

damages); Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 221-

222 (2022) (emotional distress damages). SAA does not allege that it

incurred any economic harm, so its only potential route to recover economic

damages is through personal harms incurred by its members. Proof of such

damages requires SAA’s members to participate as parties because “the

damages claims are not common to the entire membership.” Warth, 422

U.S. at 515. Nonetheless, because at least one plaintiff has standing to pursue

each type of relief, these thorny standing thickets are ultimately no bar to

jurisdiction. See Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962,

972 (1st Cir. 1993).

claims are “necessarily individualized.” Mem. of Law in Supp. of Def.’s Mot.

to Dismiss & Mot. to Strike Pls.’ Second Am. Compl. (Mot.) (Dkt. # 74) at 12.

Even if true, this does not preclude associational standing because the

requested relief will “inure to the benefit of those members of the association

actually injured.” Warth, 422 U.S. at 515.

(b) Ripeness

A ripeness determination turns on “‘the fitness of the issues for judicial

decision’ and ‘the hardship to the parties of withholding court

consideration.’” Pac. Gas & Elec. Co. v. State Energy Res. Conservation &

Dev. Comm’n, 461 U.S. 190, 201 (1983), quoting Abbott Lab’ys v. Gardner,

387 U.S. 136, 149 (1967). The key ripeness consideration is “the extent to

which ‘the claim involves uncertain and contingent events that may not occur

as anticipated, or indeed may not occur at all.’” Lincoln House, Inc. v. Dupre,

903 F.2d 845, 847 (1st Cir. 1990), quoting 13A Wright and Miller, Federal

Practice and Procedures § 3532.2 (1984). Claims of future injury are ripe

only if the “injury that has not yet happened is sufficiently likely to happen

to warrant judicial review.” Gun Owners’ Action League, Inc. v. Swift, 284

F.3d 198, 205 (1st Cir. 2002).

Harvard says this case is unripe because its efforts to combat

antisemitism on campus are “still underway.” Mot. at 8. Kestenbaum’s

damages claims, however, depend entirely on past events, so they are ripe.

See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.

1995). The only genuinely disputed facts that weigh on SAA’s ability to seek

prospective injunctive relief are whether Harvard’s actions to date have been

adequate and whether they will likely be effective going forward. This is the

core merits dispute in this case. The court accordingly declines to rule on the

issue at this formative stage of the litigation. See Valentin, 254 F.3d at 363

n.3.

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 prohibits (with some exceptions not relevant here) recipients

of federal funds from intentionally discriminating “on the ground of race,

color, or national origin.” Alexander v. Sandoval, 532 U.S. 275, 280 (2001).

The parties agree that Title VI protects Jewish students from harassment,

and discrimination based on actual or perceived Israeli identity is of course

discrimination based on national origin.

Deliberate Indifference

An institution is deliberately indifferent to student-on-student

harassment if its response to the mistreatment is “clearly unreasonable in

light of the known circumstances.” Davis ex rel. LaShonda D. v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999).8 The deliberate indifference

standard “has considerable bite.” Santiago v. Puerto Rico, 655 F.3d 61, 73

(1st Cir. 2011). Proof of deliberate indifference “requires more than a

showing that the institution’s response to harassment was less than ideal.”

Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 171 (1st Cir. 2007), rev’d

on other grounds, 555 U.S. 246 (2009). As this court has observed in a very

similar case, deliberate indifference means “affirmatively choosing to do the

wrong thing, or doing nothing, despite knowing what the law requires.”

8 Davis is a Title IX case, but the parties agree that Davis’s deliberate

indifference test applies in the Title VI context. Nearly every other circuit

that has weighed in on the issue has reached the same conclusion. See, e.g.,

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664 (2d Cir. 2012);

Whitfield v. Notre Dame Middle Sch., 412 F. App’x 517, 521 (3d Cir. 2011);

Fennell ex rel. Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th

Cir. 2015); Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014); Bryant v. Indep.

Sch. Dist. No. I-38 of Garvin Cnty., 334 F.3d 928, 934 (10th Cir. 2003).

StandWithUs Ctr. for Legal Just. v. Mass. Inst. of Tech., 2024 WL 3596916,

at *4 (D. Mass. July 30, 2024). In short, plaintiffs must plead that the school

“either did nothing or failed to take additional reasonable measures after it

learned that its initial remedies were ineffective.” Porto v. Town of

Tewksbury, 488 F.3d 67, 73 (1st Cir. 2007).

A deliberate indifference claim 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 its 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.” Id. at

72-73. Harvard contends that the SAC fails to adequately plead the first and

fifth elements.

In evaluating the first element, courts look to a constellation of non-

dispositive factors: “severity of the conduct, its frequency, whether it [was]

physically threatening or not, and whether it interfered with” the student

experience. Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir. 2013).9 Taking

9 In Davis, the Supreme Court relied on Title VII cases in identifying

loose boundaries for determining whether harassment is severe, pervasive,

and objectively offensive. 526 U.S. at 651, citing Oncale v. Sundowner

these factors into account, plaintiffs have plausibly pled that they were

subject to severe, pervasive, and objectively offensive harassment. The SAC

vividly limns repeated, fear-inducing conduct that amounted to more than

“off-color banter,” see id., or, in Harvard’s words, “offensive utterance[s],”

Mot. at 27, quoting Brown v. Hot, Sexy & Safer Prods., Inc. 68 F.3d 525, 541

(1st Cir. 1995).10 The protests were, at times, confrontational and physically

violent, and plaintiffs legitimately fear their repetition. The harassment also

impacted plaintiffs’ life experience at Harvard; they dreaded walking

through the campus, missed classes, and stopped participating in

extracurricular events.

Offshore Servs., Inc., 523 U.S. 75, 82 (1998); see also U.S. Dep’t of Educ.,

Off. of C.R., Dear Colleague Letter (May 7, 2024), at 4 n.15. Thus, while

Gerald is a Title VII case, its hostile environment framework is instructive.

10 The out-of-circuit district court cases on which Harvard relies to

argue the opposite are easily distinguished. In Mandel v. Board of Trustees

of California State University, 2018 WL 5458739 (N.D. Cal. Oct. 29, 2018),

plaintiffs adequately alleged only three “isolated” events, and the remaining

alleged events were “vague and lack[ing] substantiating specifics,” such as

dates, times, and identities of the students allegedly harassing Jewish

students. Id. at *22. And in Felber v. Yudof, 851 F. Supp. 2d 1182, 1184-1185

(N.D. Cal. 2011), “a broad swath of the conduct alleged occurred at times and

in places where plaintiffs were not present,” and plaintiffs did not establish

that they were denied access to educational services. Id. at 1188. Here, the

SAC alleges with specificity a myriad of events occurring over seven months

that Kestenbaum and/or SAA Members witnessed (or were targets of), many

of which caused plaintiffs to be denied educational opportunities.

As to the fifth element, Harvard first argues that it could not, or at least

is not legally required to, infringe on protected First Amendment activity. It

may be true that, as a policy matter, Harvard has elected not to curtail the

protests in the interest of protecting free speech (although as a private

institution, it is not constitutionally required to do so). The court

consequently is dubious that Harvard can hide behind the First Amendment

to justify avoidance of its Title VI obligations.11 At any rate, whether this

argument has any teeth is a decision best reserved for a later day. The record

is too thin to determine whether Harvard in fact acted to protect free speech

rights as it contends Title VI required it to do and whether the protest activity

itself comes within the protections of the First Amendment.

11 The parties and amicus Foundation for Individual Rights and

Expression (FIRE) helpfully briefed the legalities of the speech issue in

depth, but their briefing only highlights why the issue should not be decided

at this stage. FIRE characterizes Davis as the only Supreme Court case

squarely on point. See Amicus Curiae Br. of FIRE in Supp. of Neither Party

(FIRE Br.) (Dkt. # 87) at 7-8. But, as Justice Kennedy noted in his dissent in

Davis, the majority opinion did not come to grips with the “obvious [First

Amendment] limits on a university’s ability to control its students.” Davis,

526 U.S. at 667-668 (Kennedy, J., dissenting). Indeed, the majority opinion

in Davis did not mention the First Amendment even once. Further, Davis

involved a public school, to which the First Amendment unquestionably

applies. FIRE may be correct that it “cannot be that the federal government

could require private universities to enforce policies against speech that the

government itself could not enforce at a public middle school,” FIRE Br. at

8, but the court is reluctant to make such a determination now.

Harvard next contends that it responded to many of the incidents cited

in the SAC and, although its response was perhaps less than “ideal,” it

“cannot plausibly be characterized” as clearly unreasonable. Mot. at 25,

quoting Fitzgerald, 504 F.3d at 174. Harvard is correct that the SAC

describes a handful of steps that Harvard took in response to antisemitic

incidents. But as pled, Harvard’s reaction was, at best, indecisive, vacillating,

and at times internally contradictory. For example, the day after Dean Ball

emailed all Harvard Law students that Caspersen lounge was limited to

“personal or small group study and conversation,” demonstrators hosted a

“vigil for martyrs” in the lounge without any pushback from law school

administrators. SAC ¶¶ 127-128. Rather than call a halt to the vigil, Dean

Ball attended it. Id. ¶ 128. In another venue, while Harvard police officers

were on scene at the encampment, when a Jewish student was openly

“charged” and “push[ed],” the officers failed to react. See id. ¶ 251. And

while Harvard, on April 22, 2024, suspended the PSC until the end of the

semester, the short-term suspension proved to be in name alone, as the PSC

spearheaded the creation of the encampment in Harvard Yard just two days

later. See id. ¶¶ 247, 250.

These are but some of the many examples set out in the SAC

documenting Harvard’s failure to address what former President Gay and

Interim President Garber repeatedly publicly recognized as an eruption of

antisemitism on the Harvard campus. Indeed, in many instances, Harvard

did not respond at all. To conclude that the SAC has not plausibly alleged

deliberate indifference would reward Harvard for virtuous public

declarations that for the most part, according to the allegations of the SAC,

proved hollow when it came to taking disciplinary measures against

offending students and faculty. In other words, the facts as pled show that

Harvard failed its Jewish students.

The court, will, as it has before, add some concluding thoughts. In

assessing the actions taken in similar circumstances by Harvard’s sister

institution, the Massachusetts Institute of Technology, the court observed

that the fault it attributed to MIT was “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.”

StandWithUs Ctr., 2024 WL 3596916, at *5. But despite MIT’s failure of

clairvoyance, it did respond with a perhaps overly measured but nonetheless

consistent sense of purpose in returning civil order and discourse to its

campus. As the court pointed out, the law expects reasonable and

proportionate acts by university officials – the standard is not faultless

perfection or ultimate success. Liability attaches when only when a school’s

response is “so lax, so misdirected, or so poorly executed as to be clearly

unreasonable under the known circumstances.” Fitzgerald, 504 F.3d at 175.

The facts as alleged in the SAC plausibly establish that Harvard’s response

failed Title VI’s commands.

Direct Discrimination

Plaintiffs’ second theory is that, when compared to its response to

other forms of discrimination, Harvard’s enforcement of its policies against

antisemitic speech and conduct evinces an “invidious double standard.”

Opp’n at 27. The “comparator” argument allows plaintiffs to prove

discriminatory intent “based on ‘evidence of past treatment toward others

similarly situated.’”12 Doe v. Brown Univ., 43 F.4th 195, 207 (1st Cir. 2022),

quoting Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989).

“[T]he mere existence of disparate treatment—even widely spread disparate

treatment—does not furnish [an] adequate basis for an inference that the

discrimination was racially motivated.” Dartmouth, 889 F.2d at 21. Rather,

the circumstances of the comparator cases must be “‘reasonably comparable’

12 Plaintiffs suggest that they “do far more” than allege reasonable

comparators because “they allege that the way Harvard responds to

antisemitic acts is a fortiori worse than the treatment Harvard has accorded

other discrimination.” See Opp’n at 27. To the extent plaintiffs mean to

argue that their claim is an atypical and more sophisticated version of the

comparator argument, the claim is rejected as underdeveloped.

and ‘the nature of the infraction and knowledge of the evidence by college

officials [need be] sufficiently similar.’” Brown Univ., 45 F.4th at 207,

quoting Dartmouth, 889 F.2d at 19 (alteration in original); see also Perkins

v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir. 1996) (comparators

must have “engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or the

[school’s] treatment of them for it”), quoting Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir. 1992).

The SAC fails to adequately limn a comparator Title VI claim.

Assuming that plaintiffs can advance a comparator claim based on Harvard’s

failure to punish the conduct of others,13 plaintiffs do not identify reasonably

comparable analogs. Plaintiffs contend that Harvard allows guest speakers

and students to espouse antisemitic views but cancels other “controversial

speakers” and disciplines mostly unnamed students who violate Harvard

policies when the violations are not directed at Jewish and Israeli students.

E.g., SAC ¶ 281. For example, Harvard cancelled a speaker because she

serves on the board of a trans-exclusionary radical feminist organization, but

it permitted a speaker who falsely “claims that Israelis and Zionist Jews—

13 This is not clear. In the bulk of comparator cases, a plaintiff claims

that his own conduct was treated differently than that of others similarly

situated. See, e.g., Dartmouth, 889 F.2d at 21; Brown Univ., 43 F.4th at 207.

whom he calls part of a ‘death cult’—‘harvest organs of’ dead Palestinians.”

Id. ¶¶ 76, 281. And while Harvard expelled students for hosting a party in

their campus housing in violation of the University’s COVID-19 policies, it

has not similarly punished students who have egregiously harassed Jewish

students. Id. ¶ 295. The examples are troubling, but plaintiffs identify no

comparably situated speakers or students who were treated more favorably

when engaged in conduct analogous to that of the protestors.14 At bottom,

plaintiffs’ claim is one of viewpoint discrimination, which is not actionable

under Title VI. See Alexander, 532 U.S. at 280.

(b) Counts II and III: Breach of Contract and the Implied

Covenant of Good Faith and Fair Dealing

To state a breach of contract claim, plaintiffs must plead that (1) at least

one Policy created a valid contract; (2) Harvard breached that contract; and

(3) plaintiffs sustained damages because of the breach. Brooks v. AIG

SunAmerica Life Assurance Co., 480 F.3d 579, 586 (1st Cir. 2007). Where a

14 Plaintiffs’ closest analog is Harvard rescinding a student’s acceptance

because he had used racial slurs as a teen. See SAC ¶ 295. But because he

was a prospective student, this example is not reasonably comparable to

Harvard’s treatment of current students. See, e.g., Rowles v. Curators of

Univ. of Mo., 983 F.3d 345, 355-356 (8th Cir. 2020) (graduate student did

not identify comparator cases because his proffered comparators were not

graduate students); Stanford v. Northmont City Sch. Dist., 2023 WL

1819117, at *9 (S.D. Ohio Feb. 8, 2023) (discipline of a middle school student

was “not an adequate comparator” to the punishment of a high school

student).

student claims that a private academic institution breached a contract, the

inquiry is “whether the reasonable expectations” – meaning what “the school

‘should reasonably expect’ the student to understand from the language of

the contract” – have been met. Sonoiki v. Harvard Univ., 37 F.4th 691, 704

(1st Cir. 2022), first quoting Doe v. Trs. of Bos. Coll., 942 F.3d 527, 533 (1st

Cir. 2019), and then quoting Doe v. Trs. of Bos. Coll., 892 F.3d 67, 80 (1st

Cir. 2018). Establishing a violation of the implied covenant further requires

proof of “at least bad faith conduct.” Sonoran Scanners, Inc. v. Perkinelmer,

Inc., 585 F.3d 535, 541 (1st Cir. 2009).

Plaintiffs’ cognizable breach of contract theory15 is that Harvard failed

to follow the complaint-handling procedures that the Policies prescribe. The

Non-Discrimination Policy applies to “alleged acts of discrimination that are

committed by any member of the Harvard community.” Mot., Ex. 1 (Dkt.

# 75-1) § III. When a student files a formal complaint alleging a violation of

the Policy, the Policy requires Harvard, “[w]ithin 5 ordinary business days of

15 To the extent that plaintiffs’ contract claim is based on statements in

the Policies that are not tethered to any promise to act or provide services to

Harvard students, the claim is not actionable. Compare, e.g., G. v. Fay Sch.,

931 F.3d 1, 12 (1st Cir. 2019) (“[G]eneral statement[s]” of school’s “core

values” and “aspirational diversity statements” are “insufficiently definite to

form a contract.”), with Czerwienski v. Harvard Univ., 666 F. Supp. 3d 49,

100-101 (D. Mass. 2023) (statement that Harvard would “provide prompt

and equitable methods of investigation and resolution to stop

discrimination” held actionable).

receiving a complaint,” to “engage in a preliminary consultation about the

claim asserted.” Id. § VI.C.1. Within 14 business days of receiving a formal

complaint, Harvard must perform an “initial review,” “determine if, on the

face of the complaint, it alleges a violation of applicable policy and warrants

an investigation,” and “communicate[] in writing to the

complainant . . . [t]he decision (either to dismiss or accept the complaint).”

Id. § VI.C.2.

Plaintiffs identify at least two examples of Harvard failing to follow this

procedure.16 See, e.g., SAC ¶¶ 77, 153. In one instance, SAA Member # 4

formally complained after a professor required that students read articles

“propagating antisemitic claims and Hamas propaganda.” Id. ¶ 77. The

student met with Harvard’s Chief Diversity, Inclusion, and Belonging Officer

the same month, but Harvard never notified him of its decision whether to

dismiss or accept his complaint. See id. In the other instance, SAA Member

# 1 filed a formal complaint with the Dean of Students on October 12, 2023,

about the conduct of his Civil Procedure teaching fellow. See id. ¶ 153. SAA

Member # 1 met with Harvard’s Assistant Director of Student Life, but SAA

16 The SAC alleges many other instances of Kestenbaum and SAA

members filing complaints and reports, but it is not clear whether these

complaints were “formal” in the sense that they triggered the Non-

Discrimination Policy’s complaint-handling procedure.

Member # 1 never heard from anyone at Harvard regarding his complaint

after the meeting. See id. These instances suffice to state a breach of contract

claim.

For their implied covenant claim, plaintiffs allege that Harvard

selectively enforces the Policies. As detailed above, the FAC alleges several

instances in which students were penalized for violating various Harvard

policies, but the students allegedly engaged in antisemitic conduct have not

faced any discipline. Although these instances are insufficient to state a

Title VI claim, they sketch a claim that Harvard breached the implied

covenant by failing to evenhandedly administer its policies. See Sonoiki, 37

F.4th at 715-716.

Motion to Strike

The court may strike from a pleading any “redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike

are “disfavored” and “rarely granted.” Boreri v. Fiat S.p.A., 763 F.2d 17, 23

(1st Cir. 1985); Hayes v. McGee, 2011 WL 39341, at *2 (D. Mass. Jan. 6,

2011). Harvard moves to strike plaintiffs’ requests for injunctive relief.

While many of these requests are facially impractical or outside the

jurisdictional authority of the court, because some injunctive relief is viable

as a remedy should SAA prevail in this case, the court sees no reason at this

time to strike the prayer.17 The motion to strike will thus be denied.

ORDER

For the foregoing reasons, Harvard’s motion to dismiss is ALLOWED

IN PART and DENIED IN PART, and its motion to strike is DENIED. The

Clerk will issue a provisional scheduling order establishing deadlines for

discovery on the surviving claims.

SO ORDERED.

/s/ Richard G. Stearns

UNITED STATES DISTRICT JUDGE

17 As should be apparent, this is not an endorsement of the scope of

plaintiffs’ requested injunction. But the court need not (and cannot) tailor

an injunction at this early stage.