PHILADELPHIA – Prior to filing a motion to dismiss, counsel for the University of Pennsylvania have countered litigation from a group of the school’s professors – a suit which alleged the school’s cooperation with Congressional investigations into anti-Semitic activity on campus is tantamount to a modern form of “McCarthyism” – with an argument that the case lacks legal standing.
Huda Fakhreddine, Troutt Powell and Penn Faculty for Justice in Palestine first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on March 9 versus the University of Pennsylvania. All parties are of Philadelphia.
University of Pennsylvania faculty received a demand from the House Committee on Education & the Workforce this past January for a host of records related to anti-Semitism on campus, such as teaching materials and email messages.
The investigation and demand for documents from the school’s faculty followed the testimony before Congress and later resignation of former University of Pennsylvania President Liz Magill.
“The Committee has eagerly joined billionaire donors, pro-Israel groups, other litigants and segments of the media in accusing Penn of being a pervasively anti-Semitic environment (which it is not) – but to advance this narrative, every one of these participants in the hue-and-cry, including the Committee, have asserted that anti-Zionism, and in fact virtually any criticism of the state of Israel, is anti-Semitism,” the suit said.
“Criticisms of the nation-state, Israel, including statements of anti-Zionism, are First Amendment-protected speech. The new McCarthyism has, since long before the Hamas atrocities on Oct. 7, 2023, been highly successful at getting individuals fired from jobs, expelled or suspended from universities, denied tenure or advancement, demoted from prominent media roles, and dropped by entertainment agents, as well as successfully obtaining the rescission of offers of employment, and of invitations to participate in conferences and workshops, speaking engagements and numerous other opportunities. This new McCarthyism, which was growing slowly before Oct. 7, but is surging up very rapidly now, has already been hugely successful at ending careers and blighting lives, just like its predecessor [in the 1950’s].”
The suit added the “individual plaintiffs are tenured Penn professors who have been threatened, accused and doxxed for the subject matter they teach, and their First Amendment-protected criticism of Israel and their advocacy for Palestinians and the people of Gaza”, continuing that “neither of them is an anti-Semite, but both have been falsely accused of bias towards Jews.”
Plaintiff Fakhreddine is “a leading scholar of Arabic literature, whose work focuses on modernist movements or trends in Arabic poetry and their relationship to the Arabic literary tradition”, while plaintiff Powell is “a professor of History and Africana Studies at Penn and a former President of the Middle East Studies Association,” the suit noted.
“Plaintiff Fakhreddine is an Arab-American who additionally has been reviled for her national origin and ethnicity. Two members of the Committee, relying uncritically and likely maliciously on false narratives, mentioned her by name on national television during the hearing, asking why she was still employed at Penn,” the suit stated.
“The Committee first sent a letter to Penn demanding the production of many categories of information, including private Family Educational Rights and Privacy Act-protected student files and documents pertaining to an annual scholarly event produced by plaintiff Fakhreddine, focusing on Palestinian literature. Since this was not a subpoena but a letter requesting voluntary compliance, Penn would have been within its rights to protect its community by refusing compliance. Instead, Penn, its trustees off-balance and frightened by the accusations of anti-Semitism, announced it would comply with the Committee’s letter, and, on information and belief, has begun producing documents. Penn’s compliance with the Committee’s letter threatens the privacy, safety, academic freedom and careers of the individual plaintiffs and of many other members of the Penn Faculty for Justice in Palestine.”
UPDATE
One member of defense counsel, Seth P. Waxman of Wilmer Cutler Pickering Hale & Dorr, authored a letter to U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg on April 3, which both requested a pre-motion conference in anticipation of Penn’s motion to dismiss and presented rationales for why the school believes the suit should be dismissed.
Waxman argued that “because plaintiffs fail to identify concrete and certainly impending injuries, and they therefore lack standing” – and that even if the plaintiffs had standing, the complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6).
“The constitutional claims fail because Penn is neither a state actor nor acting under color of state law by complying with an information request from the House Committee on Education and the Workforce (HEW), and its compliance with the request does not plausibly violate plaintiffs’ constitutional rights. Finally, plaintiffs have no claim for breach of contract because their complaint does not identify the existence of a contract, much less a breach,” the letter stated.
The letter then expounded upon these arguments for dismissal.
“Plaintiffs do not have Article III standing because they have not plausibly alleged a cognizable injury. To establish standing, plaintiffs must show that they have suffered an ‘injury in fact’ that is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’ Because they seek only prospective relief (and allege no past injury), they must also show that any ‘threatened injury’ is ‘certainly impending.’ Complaints that rely on ‘allegations of possible future injury’ or on a ‘highly attenuated chain of possibilities’, fall well short of the ‘certainly impending’ standard the law requires,” according to the letter.
“Here, plaintiffs offer no concrete allegations of future injury that might nudge their theory from possible to ‘certainly impending.’ At bottom, plaintiffs allege that HEW’s information request may cover some of their records; that Penn may choose to produce those records; that, in doing so, Penn may fail to take all necessary steps to protect any privacy concerns (including as required under FERPA); and that HEW may leak those records. This chain of possibilities breaks down at the first step. Plaintiffs do not identify which requests might target their records, and they do not explain which records they believe are at risk of disclosure; they mention only student disciplinary records, but neither of the two named plaintiffs is a student. And if plaintiffs intend to assert standing by claiming that Penn’s good-faith compliance with the information request has led them to ‘chill’ their own speech, ‘the Supreme Court and Third Circuit’ have held that self-imposed injuries (like choosing to avoid controversial topics) are not enough to show an injury-in-fact.”
Additionally, the letter argued that Penn Faculty for Justice in Palestine (PFJP) “lacks standing to assert the legal rights or interests of its members because it has not provided ‘specific allegations establishing that at least one identified member has suffered or [will] suffer harm” – and that “even if organizations can proceed without ‘naming names’ at the pleading stage, they must still offer ‘more specific’ allegations about their members to show that at least one has a cognizable injury [and] PFJP has not done so here.”
The letter continued that PFJP “also lacks standing to bring the breach of contract claim because the claim would ‘require the participation of individual members in the lawsuit’ and PFJP cannot establish damages without its members’ participation.”
“Plaintiffs fail to plausibly allege that Penn is a state actor, as they must to press claims under the First and Fourteenth Amendments to the U.S. Constitution and the Pennsylvania Constitution. Courts have found repeatedly that Penn is not a state actor. Nothing plaintiffs plead compels a different conclusion. Plaintiffs lose under all three tests courts use to assess whether a private entity can be held liable as a state actor. First, they cannot show that Penn’s production of records is a traditional state power—‘a ‘rigorous standard’ that is ‘rarely … satisfied.’ Penn maintains and uses those records as part of its ordinary operation as a university. Second, they cannot show that Penn has acted in concert with the state; as alleged in the complaint, Penn merely complied with a request, and HEW’s ‘mere approval or acquiescence’ of that decision does not make it state action. Third, there is no plausible claim that the Committee and Penn are joint participants. Plaintiffs do not allege facts suggesting that the state acted such that the challenged activity must be deemed that of the state,” the letter said, next.
“Even if plaintiffs cleared the state-action hurdle, they fail to state plausible claims under the First and Fourteenth Amendments and the Pennsylvania Constitution. As to the First Amendment, plaintiffs have not shown Penn’s production of records implicates any protected conduct; that Penn’s response is ‘sufficient to deter a person of ordinary firmness’ from exercising their First Amendment rights; or that any protected expression and adverse action are causally related. Plaintiffs allege no specifics about the records in question and nothing to support their conclusory assertion that the records are theirs (rather than Penn’s) or contain protected speech. Nor can they show any burden on their privacy rights. As to the Fourteenth Amendment, plaintiffs’ allegations are not linked to any federally-protected constitutional privacy interests. Likewise, state constitutional privacy protections extend only to ‘an individual’s reasonable expectation that the information is of a personal nature’, which plaintiffs have not established. Plaintiffs also cannot show that any privacy interests outweigh the ‘public benefit which would result from disclosure.’ Penn is producing records with relevant redactions and to aid HEW in its exercise of its duties.”
Finally, the letter argued plaintiffs also failed to plausibly allege a breach of contract.
“Plaintiffs vaguely reference unspecified contracts, student and faculty manuals, Penn’s webpages, and statements by unnamed individuals, without alleging specific facts about any contract between plaintiffs and Penn, much less the essential contract terms. Nor do they identify what promises they contend these materials contain, or how Penn’s cooperation with HEW’s requests could be a breach of any promise Penn made to plaintiffs,” the letter concluded.
For counts of violating the First and Fourteenth Amendments to the U.S. Constitution’s free speech and privacy rights, violating the Pennsylvania Constitution’s privacy rights and breach of contract, the plaintiffs are seeking the issuance of a preliminary and permanent injunction enjoining Penn from complying with the information letter, together with such other and further relief as may be just and proper.
The plaintiffs are represented by Shahily Negron of The Law Firm of Shahily Negron in Reading, plus Jonathan Wallace in Amagasnett, N.Y.
The defendant is represented by David Gringer and Seth P. Waxman of Wilmer Cutler Pickering Hale & Dorr in New York, N.Y. and Washington, D.C., respectively, plus Jason Gerard Canavan and Sean V. Burke of the University of Pennsylvania’s Office of General Counsel, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01034
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com