The Trump administration’s effort to use the problem of antisemitism on campuses as an excuse to bend universities to its will has been well documented. Reaching into its bag of tricks, the Equal Employment Opportunity Commission sent a subpoena to the University of Pennsylvania last July seeking the names of Jewish employees who’d filed complaints alleging antisemitism or discrimination based on religion or ancestry/national origin, as well as employees affiliated with its Jewish studies program, Jewish organizations or community events.
When the university refused, the EEOC filed a lawsuit. It asked a federal judge to enforce its subpoena.
It claimed to need the personal information about Penn’s Jewish employees to investigate claims that Penn engaged in “unlawful employment practices by allowing antisemitic harassment to persist and escalate throughout its Philadelphia campus and creating a hostile work environment for Jewish faculty and staff.”
On Jan. 20, Penn responded by calling the EEOC’s demand “extraordinary and unconstitutional.” It was right to do so.
As three University of Pennsylvania faculty members note in an op-ed in The Guardian, “If history teaches us anything, it is that making lists of Jews, no matter the ostensible purpose, is often a prelude to their and others’ persecution … Even if the EEOC is collecting Jewish community members’ personal data in a good-faith effort to ensure safety, lists of Jews can later be leaked, or deployed to other, more sinister ends.”
Such concerns seem particularly warranted at a time of rising levels of antisemitism and violent hate crimes against Jewish Americans. One recent survey found that “one-third (33 percent) of American Jews say they have been the personal target of antisemitism—in person or virtually—at least once over the last year.” Moreover, “Nearly six in 10 (56 percent) American Jews say they altered their behavior out of fear of antisemitism” in 2024.
In its suit, the EEOC said it is investigating “a pattern of antisemitic behavior that has been publicly displayed throughout Respondent’s campus.” It claimed that the list of Jewish employees would enable it to reach out to them: “Throughout its investigation, the EEOC has endeavored to locate employees exposed to this harassment and to identify other harassing events not noted by Respondent in its communications, but Respondent has refused to furnish this information, thereby hampering the EEOC’s investigation.”
But what the EEOC is offering, many Jewish employees at Penn do not want.
As the three Penn faculty members pointed out in their Guardian op-ed, “Jewish and non-Jewish community members at Penn and beyond have united to support the university’s resistance to compiling and releasing data about members of campus Jewish organizations, the Jewish studies department, and individuals who participated in confidential listening sessions and surveys about antisemitism.”
On Jan. 20, the Penn Faculty Alliance to Combat Antisemitism, an association whose membership consists predominantly of Jewish faculty, asked permission to file a friend-of-the-court brief opposing the EEOC’s effort. Their brief, which they appended to their request, pointed out that “disclosure of sensitive information about the members of Jewish organizations … burdens Jewish association rights, unintentionally echoing troubling attempts in both distant and recent history to single out and identify Jews—a historically persecuted minority.”
While expressing appreciation for the “EEOC’s concern regarding antisemitism on university campuses,” the alliance noted that by requesting lists of Jewish employees, the EEOC was “exacerbating the fear and uncertainty of Jewish faculty at Penn.” It called the EEOC’s subpoena “an ill-designed means for addressing workplace antisemitism, particularly because the agency could accomplish its goals in ways that would better protect the university’s Jewish faculty and staff, as well as their First Amendment rights.”
“Ill designed” is one way to put it, but more important is the point that Jewish faculty at Penn make about the burden on association rights and their fear. As for many Americans, that fear is in part based on mistrust of the Trump administration.
It is born of the administration’s growing record of disregard for constitutional rights and basic human dignity, and of its seeming willingness to do anything to accomplish its goals.
Almost 70 years ago, the United States Supreme Court made clear that the government cannot demand and force an organization to turn over its membership list absent a “compelling justification” for doing so. In NAACP v. Alabama (1958), the court found that Alabama’s request for the NAACP’s membership list “trespasses upon fundamental freedoms,” ruling that “the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. “
In that case, the court recognized what it called “the vital relationship between freedom to associate and privacy in one’s associations.”
The University of Pennsylvania, in its response to the EEOC lawsuit, says that the EEOC “seeks to invade employees’ private affairs and compel the disclosure of their associations without articulating any compelling interest justifying that serious burden on First Amendment rights.” It went on to say that “if the information demanded were somehow made public, the individuals identified on the lists could face real risk of antisemitic harm.”
And, similar to the case with the NAACP, Penn suggested that disclosure of membership in Jewish organizations “will have a substantial chilling effect on the association with Penn Jewish organizations and participation in Jewish life on campus.”
The EEOC’s effort to access such information is clearly unconstitutional. It is now up to the courts to stop that effort.