A federal district court has agreed to enforce the EEOC's request for a list of Jewish-affiliated individuals at the University of Pennsylvania, rejected an attempt by Penn and various stakeholders (including Penn's Jewish Law Students association) to quash the subpoena. You can read Judge Gerald Pappert's opinion here.
On the legal question, the judge's decision is justifiable. The standard for issuing a subpoena in this context is very low, and under normal circumstances there are good reasons why the EEOC needs to investigatory power in this domain. Moreover, with one possible exception (which I'll discuss in a minute), I agree the challengers didn't muster much concrete evidence that they would be substantially burdened by the subpoena or that it would impinge on their protected interests.
I was not happy, however, to see the dismissive tone Judge Pappert took towards the challenge, and particular the echoes they raised regarding "Jew lists." He accused the interveners, including the Jewish interveners, of
significantly rais[ing] 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. [emphasis original]
Elsewhere, he was disdainful of the interveners notation of ties Trump administration officials have to antisemitic and neo-Nazi organizations, characterizing them as "unserious political arguments, not serious legal ones."
I confess I am quite tired of people lecturing Jews on how inappropriate and unserious we are being when we raise concerns about antisemitism. There is a reason why the Trump administration's request raised echoes of "Jew lists" (a history which, I'd add, is by no means restricted to Nazi Germany) and the Trump administration's well-documented connections to far-right antisemites bolsters those echoes. It is not lying or political opportunism which prompts these fears. The fact that these far-right associations have discredited the Trump administration in the eyes of much of the Jewish community should be seen as an embarrassment for the Trump administration, not a failing on the part of the Jews not understanding who their "protectors" truly are.
On that note, one might think that, if the EEOC was actually concerned about protecting Penn's Jewish employees from antisemitism, it would respond more empathically to concerns from many of those very same employees that the EEOC's conduct was making them feel less, rather than more, secure. This is perhaps the paradigmatic arrogance of the Trump administration when it comes to antisemitism -- it dreams of fighting antisemitism without those pesky Jews getting in the way. The court's breezy acceptance of the Trump administration's preferred framing -- of course they're protecting Jewish employees -- is part of this. The Jews don't seem to feel very protected! But that doesn't matter: after all, are we really going to let some Jew tell us how to fight antisemitism?
Again, this is admittedly an objection to tone, and the law is extremely deferential to the EEOC (and I think -- though perhaps regrettably in this specific context -- appropriately so under normal conditions). At the end of the day, historical "echoes" aside, the challengers did not do much to establish much of a credible burden on the subpoena (the claim that Jews would stop praying with the Jewish Law Students Association was extremely speculative, for instance). But the one potential exception I saw was in the EEOC's request to get the information regarding participants in a "listening session" Penn conducted on antisemitism, or who reported instances of antisemitism to the Penn administration. Penn asserted that requiring disclosure of the participants here would deter employees from reporting instances of antisemitism, significantly obstructing Penn's ability to gather information on its campus climate. The court's analysis rejecting this argument was quite thin -- it didn't view the argument as establishing a burden on Penn, and it stated without elaboration that permitting Penn to withhold the names of complainants would simply give it a "weapon" to interfere with the EEOC's investigation.
On this issue, at least, the arguments Penn raised deserved greater attention. I have an article forthcoming that is expressly about how the Trump administration's hyper-aggressive approach to "fighting antisemitism" may in many cases actually serve to deter Jewish students and stakeholders from speaking out on antisemitism. One of my keynote examples is precisely a scenario like this: the student who may wish to attend a "listening session" and give her perspective on the campus climate for Jewish students. She nonetheless may decline to participate so if she knows that her remarks might become grist for a MAGA war on her university. There are many students, one imagines, who might have concerns they wish to raise, but do not want to make a (literal) federal case out of them -- particularly in the present moment, where they know that a "federal case" could mean catastrophic funding cuts for her department or arrests and deportations of her classmates.
This chilling effect is only enhanced by the clear propensity of the Trump administration to gleefully and overtly run roughshod over the will of the Jewish students it is nominally "protecting" -- she knows full well that even a loud and unambiguous objection will not even reduce, let alone eliminate, the risk that her words and participation will be conscripted into a destructive project she abhors. In that context, it is very likely she will elect not to participate, to her detriment and to the detriment of the university which earnestly wishes to provide a space where it can hear testimony on these issues.
Again, on the law this still may a close question -- we simply aren't well-equipped right now to handle situations where a substantial portion of group the EEOC claims to be "protecting" believes that the EEOC is in fact an adversary (and that the EEOC's very investigation "on their behalf" is a component of its antagonistic campaign). So maybe even here, the information must be disclosed.
But the concerns here are legitimate ones. They are not inappropriate, they are not unserious, they are not simply the raising of political hackles. Jews have good reason for their concerns here and good reasons to mistrust what the EEOC is up to; that's true regardless of how the legal argument should play out.
In Trump's first term, we went through a similar situation to this following reports that the administration was classifying Jews as a distinct "national origin" so as to qualify Jews for protection under Title VI. This was not a novel decision -- it's roots dated back to both the Bush and Obama administration -- but in the context of this administration it raised serious worries by many Jews that Trump was trying to position us as foreign, of another "nation", and thus not truly American. I wrote then that "The fight against discrimination requires judgment—but many Jews don’t trust this administration to exercise it appropriately."
That mistrust has only grown, and only grown more justified, in the present moment. Perhaps a trustworthy administration would not garner such an intense backlash if it sought information about Jewish community members in the context of an ongoing antisemitism investigation. But Jews are not obligated to trust this administration. And whatever the right result was on the formal legal question, it was unnecessary and fundamentally improper for Judge Pappert to deride the basis for our mistrust.
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