Penn calls federal commission’s request for personal employee information ‘unconstitutional,’ ‘disconcerting’ and ‘unnecessary’

The University of Pennsylvania in a legal filing Tuesday pushed back against a federal commission’s demand that in effect would require it to turn over lists of Jewish faculty, staff and students, calling the request “unconstitutional,” “disconcerting” and “unnecessary.”

The filing comes in response to a lawsuit filed against the university in November by the Equal Employment Opportunity Commission, asserting that Penn failed to comply with its subpoena. The commission is seeking employees’ names, home addresses, phone numbers and email to further an investigation it began in 2023 over the school’s treatment of Jewish faculty and other employees regarding antisemitism complaints that emerged following Hamas’ attack on Israel.

In its quest to find people potentially affected, the commission demanded a list of employees in Penn’s Jewish Studies Program, a list of all clubs, groups, organizations, and recreation groups related to the Jewish religion — including points of contact and a roster of members — and names of employees who lodged antisemitism complaints. It also sought names of participants in confidential listening sessions held by the school’s task force on antisemitism.

» READ MORE: Jewish students and faculty at Penn ask that their names not be turned over in federal antisemitism investigation

The request has spurred a backlash from some student and faculty groups, including Penn’s chapter of the American Association of University Professors, arguing that the names and personal information should not be turned over to the government.

Penn has refused to provide the information, and the school doubled down on that position in Tuesday’s legal filing.

“The EEOC insists that Penn produce this information without the consent—and indeed, over the objections—of the employees impacted while entirely disregarding the frightening and well-documented history of governmental entities that undertook efforts to identify and assemble information regarding persons of Jewish ancestry," the university wrote in its filing. “The government’s demand implicates Penn’s substantial interest in protecting its employees’ privacy, safety, and First Amendment rights.”

» READ MORE: EEOC sues Penn for failing to release information related to antisemitism investigation

Also on Tuesday, the Penn Faculty Alliance to Combat Antisemitism, a group of more than 150 primarily Jewish professors, said it planned to file a brief in support of the university’s decision not to comply with the commission’s demand.

“While the Alliance supports the EEOC’s efforts to combat antisemitism at Penn, its members are gravely concerned that the scope of the EEOC subpoena … invokes the troubling historical persecution of Jews and threatens the personal security of the Alliance’s members,” the group wrote in a brief that it intends to file later Tuesday.

The alliance includes members who have had concerns about antisemitism at Penn, including faculty who were harassed online after attending a trip to Israel following Hamas’ Oct. 7, 2023, attack on the country, said Claire Finkelstein, a Penn Carey law professor, member of the alliance and faculty director of the Center for Ethics and the Rule of Law.

Among its members are faculty “who have been really on the side of remediating antisemitism, do not believe that concerns about antisemitism are pretextual, do not think that it is a sham issue and think there are real … issues to address at universities in general.”

Finkelstein said the alliance hasn’t taken a position on whether the EEOC’s investigation is warranted or needed.

But the group is adamantly opposed to the subpoena and believes it could discourage membership in Jewish groups at Penn. In its brief, the group notes “the dark historical legacy associated with government lists of Jews” including how Nazis “frequently demanded that others identify the Jews among them.”

Penn said in its filing it has complied with the subpoena except for the list of names and contacts, noting it has provided over 900 pages of materials to the commission. The school noted that it even offered to send notices to all employees about the EEOC’s request to hear about antisemitism concerns with the commission’s contact information.

The university also asserted that the commission’s demand “is a particularly unjustified use of enforcement authority given the weakness of the underlying charge.”

The commission, the university argued, has not identified a “single allegedly unlawful employment practice or incident involving employees.”

“The charge does not refer to any employee complaint the agency has received, any allegation made by or concerning employees, or any specific workplace incident(s) contemplated by the EEOC, nor does it even identify any employment practice(s) the EEOC alleges to be unlawful or potentially harmful to Jewish employees,” Penn said in its response.

The original complaint was launched by EEOC Commissioner Andrea Lucas, now chair of the body, on Dec. 8, 2023, two months after Hamas’ attack on Israel that led to unrest on college campuses, including Penn’s, and charges of antisemitism. It was also just three days after Penn’s then-president, Liz Magill, had testified before a Republican-led congressional committee on the school’s handling of antisemitism complaints; the testimony drew a bipartisan backlash and led to Magill’s resignation days later.

Lucas, whom President Donald Trump appointed chair last year, also brought similar antisemitism charges against Columbia University that resulted in the school paying $21 million for “a class settlement fund.”

EEOC complaints typically come from those who allege they were aggrieved. Lucas, according to its complaint, made the charge in Penn’s case because of the “probable reluctance of Jewish faculty and staff to complain of harassing environment due to fear of hostility and potential violence directed against them.“

The EEOC’s investigation ensued after Lucas’ complaint to the commission’s Philadelphia office that alleged Penn was subjecting Jewish faculty, staff, and other employees, including students, “to an unlawful hostile work environment based on national origin, religion, and/or race.”

The allegation, the complaint said, is based on news reports, public statements made by the university and its leadership, letters from university donors, board members, alumni, and others. It also cited complaints filed against Penn and testimony before a congressional committee.

In its brief, the faculty alliance also asserted that the commission could have used other voluntary and informal methods to obtain contact information for Penn faculty and staff, such as setting up a website where people could report concerns.

Finkelstein, the Penn law professor, said she understands that the commission generally guarantees anonymity to witnesses or complainants, but leaks can occur.

“When state force extracts sensitive, personal details, those details could (and often do) become public, turning group members into targets for their enemies,” the group states in its filing.

» READ MORE: Penn is creating an office of religious and ethnic inclusion, following concerns about antisemitism on campus

Penn has done a lot to address antisemitism concerns, said Brian Englander, president of the alliance and a professor of clinical radiology who has been at Penn 22 years.

In its brief, the alliance listed antisemitic incidents that occurred on Penn’s campus in 2023 including a swastika left on a Penn building and messages that Penn called antisemitic that were light projected onto several Penn buildings.

“Penn is a very different place than what we were experiencing in the fall of 2023,” he said.

Finkelstein agreed.

“Penn is not Columbia or Harvard or UCLA,” she said. “The problems that have appeared on those campuses have been much more extreme than what happened on Penn’s campus,” she said. “I also think there may be a limit to what university leadership can do in the face of widespread antisemitism that has really affected university campuses all over the country.”

But there’s always room for improvement, she said.

“To the extent that there is an atmosphere that has made Jewish students and faculty feel unwelcome, or not heard or vilified, that is something the university has to continue to address and I believe they will continue to address it,” she said.

Finkelstein was among about 40 faculty who took a four-day, personal trip to Israel in January 2024 and felt attacked for supporting academics there and trying to learn more about the Oct. 7 attacks. An Instagram account by Penn Students Against the Occupation was critical of the trip and accused faculty of “scholasticide.” The EEOC referred to that incident in its complaint.

“My dean got hundreds of letters,” she said, protesting faculty going on the trip.

Englander said there probably are members of the alliance who would be interested in talking to the commission.

“But they would want to do it voluntarily,” he said.

The alliance, he said, is “straddling this middle line” in that it supports Penn’s refusal to turn over the names, but also recognizes “that antisemitism is a massive problem in the United States right now.”

“So having government support, whatever the motivation for that, is meaningful,” he said.