Judge rules in favour of antisemitism victim data demand

On Tuesday 31 March, the Trump administration won a legal battle over attempts by the University of Pennsylvania (UPenn) to avoid compliance with a US Equal Employment Opportunity Commission (EEOC) subpoena requesting, under the aegis of investigating “antisemitic harassment through its workplaces”, “identification of witnesses to and victims of the religious-based harassment, including their contact information”.

That subpoena was a response to the rise of antisemitism incidents during Israel’s military attacks on Hamas in Gaza, which followed Hamas’s attack on Israel in October 2023.

The subpoena does not mention Jews or Jewish employees. Yet, the phrase “antisemitic harassment” means the EEOC is seeking personal data – including emails, addresses and phone numbers as well as whether a Jewish individual was affiliated with on-campus Jewish groups or in the Jewish Studies department.

UPenn refused to supply this data, which prompted the EEOC to subpoena the information, a move that UPenn and groups such as the Jewish Law Students Association as well as the American Association of University Professors challenged in court.

Privacy rights argument dismissed

But on Tuesday, 31 March Judge Gerald J Pappert of Philadelphia’s Federal District Court, ruled that UPenn had to turn over this information to the EEOC.

Pappert dismissed the argument that giving the EEOC this information violated individuals’ privacy rights, noting that for the EEOC to discharge its Congressional mandate to undertake such investigations, it had to be able to contact individuals whose rights under Title VII of the Civil Rights Act of 1964 had been violated.

Pappert also dismissed the argument that providing the EEOC with this information raised disturbing echoes of Nazi Germany.

“Penn and other groups and associations the Court permitted to intervene significantly raised the dispute’s temperature by implicitly 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,” wrote Pappert.

Amanda Shandor, professor of legal studies and business ethics, who teaches constitutional law at UPenn’s Wharton School and is a party to the case, expects the judge’s decision to be appealed.

“Respectfully,” she told University World News, she is “deeply disappointed” by Judge Pappert’s ruling.

“I think he didn’t understand the gravity of the demand [by the EEOC] and how that’s being experienced by the Jewish community of Penn but also the broader community of Penn.

“I don’t think he has credited concerns about rising antisemitism and the danger of creating a list of names and contact information, including people’s home addresses,” she noted.

Shandor, who has litigated constitutional cases, does not think that the judge took into account, regardless of the government’s intention in creating the list, what it might mean for people in this increasingly antisemitic environment if the list became public.

A ‘chill’ on Jewish activities

Further, she explained: “The opinion doesn't reflect the very real chill that this will have on people’s willingness and interest to join Jewish organisations and participate in Jewish religious life at Penn.

“A lot of people are not going to do that because of this ruling and because they’re scared that it will mean that their personal information will go on a list of the government and potentially be on the internet. I don't think that he saw that as at all concerning. And I think that it speaks like a very different understanding of the current world that we live in.”

Shandor said Pappert’s view that the question of whether creating the list will dissuade Jews from partaking in Jewish life at UPenn is for another day and does not bear on the EEOC’s rights to the information “doesn’t make sense, because once the list is created, that's already the harm.

“And there’s very clear Supreme Court case law that the risk of chill alone is a First Amendment harm. The fact that people will stop doing things because they are scared of their information being put on a government list is the problem”.

She said: “I am hopeful that the Court of Appeals, and if we have to, the Supreme Court, will reaffirm the long-established, bedrock, fundamental kind of constitutional principle.”