Two University of Pennsylvania Professors Sue the University for Breach of Contract

Two tenured faculty members, Huda Fakhreddine (left), an associate professor of Arabic literature, and Troutt Powell (below right), a professor of Africana studies and history, as well as an organization, Faculty for Justice in Palestine (PFJP), are suing the University of Pennsylvania for engaging in McCarthyism.  McCarthyism is not a cause of action, so they have brought their claims in the U.S. District Court for the Eastern Distrct of Pennsylvnia under the First and Fourteenth Amendments, and for breach of contract. 

They allege that the country is facing a new form of McCarthyism, in which people who are critical of Israel or Zionism face accusations of anti-Semitism.  I don't think I've seen a complaint like this before.  The complaint does not strike me as a competent bit of legal craftsmanship, but I suspect that the aim of the suit is not to win a legal claim.  Still, it alleges a breach of contract, so here we are.

Much of the complaint is taken up with a criticism of the U.S. House of Representatives and the House Committee on Education and the Work Force (the Committee).  The House passed House Resolution 894 in December 2023, which contained language that the plaintiffs claim violates First Amendment principles.  Among other things, the Resolution equated anti-Zionism with anti-Semitism.  I agree; that's reductive.  Plaintiffs allege that the sentence is "ontologically, and even epistemologically absurd." 

Lawyers, do not let university professors assist in the drafting of your complaint. 

The complaint also alleges FERPA violations. That claim relates to an information letter sent to Penn in January, demanding sixteen categories of documentation to be returned in two weeks.  The letter names Professor Fakhreddine and accuses her of anti-Semitism.  

Although the letter was not a subpoena, the complaint alleges that Penn is beginning to produce the requested documents. Doing so, plaintiffs allege, would violate FERPA rights including the rights of student members of PFJP.  It would also subject plaintiffs to allegations of anti-Semitism, harassment and doxxing at the hands of outside actors.  Plaintiffs accordingly seek an order enjoining the University from cooperating with the Committee.  Plaintiffs further characterize Penn's cooperation with the Committee as rendering them complicit in a First Amendment violation. They allege claims  under both the Fourteenth Amendment  and the Pennsylvania constitution for violations of students' and faculty members' privacy rights.

The breach of contract claim is quite short.  It alleges the University made various promises to plaintiffs on which they relied.  The promises, not specified in the complaint, relate to freedom of speech, diversity, academic freedom, and good faith and fair dealing.  Cooperation with the Committee and complying with the information letter allegedly violate the University's contractual obligations. 

Without knowing what the University has shared with the Committee, it is hard to know whether any of these claims have any legs.  However, based on what I have seen from the COVID cases, it is hard to imagine that these allegations suffice to establish any legally binding promises that the University made to the plaintiffs.  In those cases, courts required specific evidence of contractual promises (express or implied), and plaintiffs' generalized allegations probably are not enough.