A federal judge in Philadelphia was egregiously wrong in upholding an Equal Employment Opportunity Commission subpoena to the University of Pennsylvania that effectively requires it to provide a list of its Jewish faculty and staff. At a time of increasing antisemitic acts, and at a moment when the likes of Nick Fuentes and Candace Owens are expressing vile anti-Jewish hate to massive audiences, it should be unthinkable to ask a university to compile and turn over a list of Jewish people on campus, including their home addresses and phone numbers. The University has appealed and the United States Court of Appeals for the Third Circuit should quickly reverse federal district court Judge Gerald Pappert’s truly insensitive opinion.
The EEOC as part of its investigation of antisemitism at the University of Pennsylvania issued a broad subpoena that requires the school to provide: (1) the names of employees who reported antisemitic harassment; (2) the Jewish-related organizations on campus and the private contact information (personal phone number, email address and mailing address) of the employee members in each organization; (3) the private contact information of employees in Penn’s Jewish Studies Program; (4) the private contact information of employees who participated in Penn’s March 2024 listening sessions on antisemitism; and (5) the private contact information of employees who received a Penn survey on antisemitism.
In other words, the EEOC’s goal is to force the University to create a list, with contact information, of as many Jewish faculty and staff on campus as possible so that the agency can reach out to interview them. It is a fishing expedition by the EEOC with the hope that if it contacts enough Jewish faculty and staff, it might find evidence of antisemitism on campus.
For many reasons, this is unconstitutional; it also is deeply frightening. The Supreme Court has held for almost 70 years, since NAACP v. Alabama in 1958, that requiring organizations to disclose their members violates freedom of association. In that case, the Court held that Alabama violated the First Amendment in requiring that groups like the NAACP disclose their membership lists. Many cases since have reaffirmed this principle. For example, in Americans for Prosperity v. Bonta (2021), the Court declared unconstitutional a California requirement that non-profit groups turn over their list of donors that they already were required to provide to the federal government.
Such a disclosure requirement is constitutional only if the government meets a heavy burden and shows that there is a very important need for the information, and that there are not other ways to achieve the government’s goal. Here, there were obvious alternatives to requiring the University of Pennsylvania to compile and turn over this information. For example, the University could notify its employees of the EEOC’s investigation and provide them with contact information for the EEOC. The EEOC could also invite Penn employees to contact it through a hotline.
Penn had, in fact, put out a university-wide notice that the EEOC was seeking this information. But the court deemed Penn’s volunteer-notice alternative as “inadequate” based on the EEOC’s unsubstantiated claim that messages coming from the employer “always risk creating confusion, fear, and mistrust.” But the EEOC inviting Penn employees to reach out through a hotline preserves employees’ anonymity and allows those who have been impacted by anti-Jewish discrimination to share their stories, if they wish, with the EEOC.
For the government to require that a university compile such a list of faculty and staff based on their religion raises serious equal protection issues. The district court brushed aside this concern, observing that “a subpoena’s mere reference to religion does not mean it classifies based on religion.” But a subpoena that expressly demands rosters of “organizations…related to the Jewish religion, faith, ancestry/National Origin” and of employees in the “Jewish Studies Program” does not merely refer to religion, it uses Jewish identity as the sorting criterion.
There are also serious privacy concerns in requiring that the University compile and turn over contact information. The district court said the information here—personal home addresses and phone numbers, task-force participation, survey receipt—is not “highly personal.” This is just wrong as a matter of law. In U.S. Department of Defense v. FLRA (1994), the Supreme Court recognized substantial federal employee privacy interests in home addresses. Moreover, a list of home addresses and phone numbers is one thing; a list of home addresses paired with religious identity is another. Similarly, in Kallstrom v. City of Columbus (1998), the United States Court of Appeals for the Sixth Circuit recognized that disclosure of home addresses can threaten personal security when linked to a category that a hostile actor has targeted. Hostile attacks on Jewish victims are at their highest number in decades.
The context of this moment in forcing the University of Pennsylvania to compile a list of Jewish faculty and staff, with their contact information, should not be ignored. Just recently in Pennsylvania, Governor Josh Shapiro’s home was firebombed, and in 2018 there was the Tree of Life synagogue massacre. And on Penn’s campus, Jewish students and faculty have also been the victims of doxxing. The court called these instances “generalized” and treated them as insufficient. It is not clear what else the judge could want as a showing that such a list could put people at risk.
Compiling lists of Jews understandably raises horrific associations. The EEOC claims a beneficent purpose, but such lists so easily can be used to target, harass, and worse. Judge Pappert’s reaction to this was stunningly insensitive. He chastised those who raised this concern. He wrote that this concern “significantly raised the dispute’s temperature by impliedly and even expressly comparing the EEOC’s efforts to protect Jewish employees from antisemitism to the Holocaust and the Nazis’ compilation of ‘lists of Jews.’ Such allegations are unfortunate and inappropriate.”
However, this historical analogy was made in the record and in public statements of support by the Anti-Defamation League, the American Jewish Committee, the Jewish Federation of Greater Philadelphia, Penn Hillel, the Association for Jewish Studies, and the American Academy for Jewish Research—major institutions of American Jewish communal and scholarly life that obviously are concerned with combatting antisemitism. It was not an argument Penn manufactured. A judge telling those organizations their historical analysis is “unfortunate and inappropriate” is telling the Jewish community how to think about their own history of anti-Jewish persecution.
Judge Pappert essentially said that Jewish communities should see the Trump administration and its EEOC as acting to protect the Jewish community. This suggestion is not only patronizing, but also fails to reckon with the unique historical circumstances that motivates this shared concern among Jewish groups. The University of Pennsylvania’s Hillel’s post-ruling statement captures this: “Compelled government lists of Jewish individuals carry a dark historic resonance. Subjecting faculty to such disclosures without their consent undermines the very civil rights these investigations seek to uphold.”
It is one thing for the judge to decide the law, which he did wrongly, but it is quite another for the judge to chastise Jewish people for negatively perceiving the EEOC’s demands.
The Trump administration should not have made this request of the University of Pennsylvania. The federal district court should not have upheld it. Now it is for the federal court of appeals to quickly and emphatically say no.
The first time the UJA sent me something I was upset. I just don’t want to be on a list that someone else might misuse.
In On Tyranny, Timothy Snyder's Lesson 1. states "Do not obey in advance."
Lesson 2. is "Defend institutions." Pay attention universities!