Penn files to dismiss lawsuit by Jewish students alleging discrimination, antisemitism on campus

Penn moved late Monday evening to dismiss a lawsuit brought by two students alleging that the University responded inadequately to antisemitism on campus.

In a 46-page brief viewed by The Daily Pennsylvanian, the University forcefully pushed back against a complaint by College senior Eyal Yakoby and College first year Jordan Davis. The two students alleged in a December filing that Penn violated Title VI of the Civil Rights Act of 1964 by subjecting them to a "pervasively hostile educational environment" that is discriminatory against Jews. 

Attorneys for Penn said that the student plaintiffs' claims should be dismissed because the University's efforts to combat antisemitism are ongoing. The attorneys claimed that Penn responded quickly and comprehensively to various incidents of hate that occurred during the fall 2023 semester, and they said this demonstrates that the students do not have standing to sue under Title VI.

"The tragic events of October 7 have posed challenges for universities across the country. Penn is no different in that regard," the attorneys wrote. "But this lawsuit is not the right vehicle to figure out the way forward."

The brief marks the first response to the students' 84-page lawsuit by the University, which is being represented by WilmerHale in the proceedings. A Penn spokesperson declined a request for comment from the DP, while Yakoby and Davis also did not respond to requests for comment.

Yakoby and Davis are represented by the Kasowitz Benson Torres team led by partners Marc E. Kasowitz, Daniel R. Benson, Mark P. Ressler, and Andrew L. Schwartz.

Kasowitz called the motion to dismiss "meritless" in a press release, asserting that "the antisemitic hatred, discrimination, and harassment permeating Penn’s campus has if anything worsened."

"Rather than trying to avoid responsibility, Penn should be instituting the kind of effective measures outlined in the lawsuit necessary to protect its Jewish students who fear for their safety," Kasowitz wrote. "Instead, Penn is engaging in the equivocation and denial and, yes, indifference that its former president so callously and disastrously displayed during the recent Congressional hearings.”

Throughout the filing, Penn sought to demonstrate that it has not been "indifferent" to antisemitism or intentionally discriminated against Jewish students, as Yakoby and Davis suggest. Attorneys cited the University's ongoing implementation of a plan to combat antisemitism announced last November, as well as continuing probes into various incidents of hate. 

"Although Plaintiffs color their Complaint with conclusory assertions that Penn acted unreasonably or improperly, their allegations instead make clear that whenever Penn has been made aware of any incidents of alleged or actual antisemitism, its response has been conscientious, forceful, and thorough," attorneys wrote.

Yakoby and Davis' lawsuit sought relief including tuition refunds and requiring Penn to end discriminatory policies and practices against Jewish students. It also requested that the University take preventative measures — including terminating the employment of allegedly antisemitic faculty and staff, expelling students who engage in antisemitic behavior, and instilling mandatory antisemitism training for Penn community members.

But Penn's attorneys said the students' complaint "sweeps through decades of unconnected alleged incidents in search of a narrative" and added that a lawsuit cannot legally force changes to Penn's policies and procedures. Even still, many of the students' allegations did not constitute illegal conduct — even if they were controversial, the attorneys wrote.

"Plaintiffs devote 29 paragraphs to Penn’s decision not to shut down the Palestine Writes Literature Festival," the attorneys wrote. "But Penn’s decision not to shut down speech that Plaintiffs dislike is not a violation of the law."

The University also indicated that it may still pursue disciplinary action in response to incidents of hate that occurred last semester, given that some probes have not yet concluded or are being kept private in keeping with "relevant laws and policies regarding student privacy." Attorneys also repeatedly noted the precedent of academic freedom, which they said invalidates any legal liability for "Penn’s decision not to censor or discipline pure political speech."

WilmerHale, the firm representing Penn, helped former Penn President Liz Magill prepare for the Dec. 5, 2023 congressional hearing on antisemitism. The testimony from that hearing ultimately contributed to her resignation four days later. The law firm also represents the University on a price-fixing class-action lawsuit that alleges Penn and 15 other private schools colluded to reduce need-based financial aid.

The ongoing legal action follows a series of incidents that the plaintiffs argue contribute to a hostile atmosphere. They cite a perceived lack of adequate response from the University administration, graffiti, and allegedly antisemitic speech — including phrases like “intifada revolution” and “from the river to the sea.”

The plaintiffs have asserted that Penn failed to enforce its own policies to protect Jewish students from discrimination, harassment, and intimidation. The seven policies they claim the University violated include the Code of Student Conduct, Guidelines on Open Expression, Penn’s Equal Opportunity and Affirmative Action Policy, and the Faculty Handbook.

“Penn must be forced to protect its Jewish students and stop applying a double standard when it comes to anti-Jewish bigotry,” Mark Ressler — a partner at Kasowitz Benson Torres who is representing the students — wrote in a statement to the DP after the lawsuit was filed in December.

The allegations are part of a growing national lens on antisemitism in higher education, which has spawned multiple federal investigations and probes into Penn specifically. The lawsuit is partially funded by the Combat Campus Antisemitism Foundatin, which is also helping to fund similar lawsuits at other universities, including Harvard, according to the Kasowitz press release. 

"Penn has not decided against pursuing disciplinary measures; it simply has not concluded its investigations and disciplinary proceedings," attorneys wrote.