Headline: Judge orders UPenn to provide list of Jewish employees sought by Trump administration

[reACTIONary]

https://www.nbcnews.com/politics/trump-administration/judge-orders-upenn-provide-list-jewish-employees-sought-by-eeoc-rcna266103

Beyond the headline - a post by a FB friend who is very liberal and a lawyer in Pennsylvania.

OK the article doesn't tell the whole story. According to Law Professor Anne P. Mitchell:
NO! STOP IT!! THE COURT DID *NOT* TELL UPENN TO TURN OVER A LIST OF ALL THEIR JEWISH STUDENTS AND EMPLOYEES! HERE'S WHAT'S REALLY GOING ON
There's been a whole lot of chatter and misinformation going around social media, and even news outlets, saying that the Court "approved a subpoena" and ordered UPenn to "turn over lists of all of the Jewish students, teachers, etc.” to the Trump administration.
That is *so not what actually happened*, but of course the minute you throw {X minority or X religion} into a headline, it takes off like wildfire. So I'm here to give you the facts, and the actual documents.
In 2023 - *2023* - during the *Biden* administration - the Equal Employment Opportunity Commission (EEOC) issued what's called a Commissioner's Charge (included for Notes from the Front members) which basically is a document saying "This organization is violating equal employment opportunity laws."
Specifically, the 2023 Commissioner's Charge against UPenn said, in part, that the EEOC Commissioner had "reason to believe that since at least November 2022, the employer has engaged in a pattern or practice of harassment based on national origin, religion, and/or race against Jewish employees, in violation of Title VII. Specifically, the unlawful practices include, but are not necessarily limited to subjecting Jewish faculty (including tenured, non-tenured, and adjunct professors), staff, and other employees (including, but not limited to, students employed by the university) to an unlawful hostile work environment based on national origin, religion, and/or race."
Now, why did the Commissioner (Andrea Lucas at the time, she is now the Chair) have reason to believe that?
Because of, among other things, "Title VI complaints filed against the employer in federal court and with the U.S. Department of Education; sworn testimony before the U.S. House Committee on Education and the Workforce; other witness statements; and the initiation of investigations against the employer by the U.S. Department of Education and the U.S. House Committee on Education and the Workforce."
Ok, so this is the background, that *during the Biden administration* the EEOC opened an investigation based on, among other things, *complaints they received* saying that UPenn was ... wait for it... discriminating against Jewish members of faculty and other employees.
And who was among the people bringing those complaints?
*Jewish members of the faculty and other employees*.
On March 27, 2025, pursuant to the Commissioner’s Charge, the EEOC sent a request for information to UPenn. The requested information, among other things, included a request for *complaints* that *employees* had filed, along with the information about those *employees*. It also asked for documents and records that UPenn had *already* produced to the Department of Education (DOE) related to the *DOE's* investigation into UPenn's alleged discrimination "based on national origin (Jewish/Israeli ancestry)" (This request is also included for Notes from the Front members.)
The cover letter that was sent with the request for information explained that if UPenn did not cooperate with this request for information that the next step would be the issuance of a subpoena for the same information.
Guess what.
UPenn did not cooperate.
So *four months later*, having given UPenn time to cooperate, the EEOC issued a subpoena (included for Notes from the Front members).
Guess what.
UPenn failed to comply with the subpoena as well.
They didn't just ignore it, they refused.
So the EEOC went to court to compel UPenn to comply with the subpoena. The Declaration of Deputy EEOC Director Karen McDonough that accompanied the EEOC's request to compel lays out a very clear, step-by-step history of what led up to the EEOC's request.
This brings us to yesterday's order by District Court Judge Gerald Pappert (an Obama appointee), ordering UPenn to comply with the subpoena.
He is *not* impressed with UPenn, in fact they did themselves *no* favours. Among other things that he says in his opinion and order (included for Notes from the Front members):
"Penn and other groups and associations the Court permitted to intervene 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."
And then:
"For their legal arguments, respondents contend the charge of discrimination is invalid and the subpoena violates the United States Constitution in various ways. But the charge is valid and the constitutional claims are easily dispensed with. The Court grants accordingly the EEOC’s application for enforcement and orders Penn to respond to the subpoena, though without revealing any employee’s affiliation with a specific organization."
The rest of the opinion and order, included for Notes from the Front members, is equally direct, and pretty revealing both about the issues before the Court, and the discrimination that the EEOC is trying to investigate.
But what it is decidedly NOT about is "the Court forcing UPenn to turn over the names of every Jewish person at UPenn."

[moondust]

1. List of Jews?

I'm hearing ghastly echoes from a very dark past.

Harvard Law Prof. Lawrence Tribe, himself a Jew, just told Lawrence O'Donnell that the Obama-appointed judge made a terrible judgement that he hopes will be overturned on appeal.

[reACTIONary]

2. TL;DR?

No one asked for a list of Jews. That's click bait.

Jewish employees and students filed complaints with the university, and those complaints are being subpoenaed.

[moondust]

3. With limited time on TV,

O'Donnell and Tribe stuck pretty much to the NBC News headline "Judge orders UPenn to provide list of Jewish employees sought by Trump administration" without going much deeper into the details. Tribe seemed to interpret the story as a request for a list of Jews.

[reACTIONary]

4. Thanks! I will ...

... look into it further.

If it is a list of complaints received by the university from those who experienced discrimination, along with the names of those who so complained, then I think there is some exaggeration going on.

[reACTIONary]

5. Here is Judge Pappert's Memorandum Supporting the Subpoena

https://storage.courtlistener.com/recap/gov.uscourts.paed.646315/gov.uscourts.paed.646315.54.0.pdf

From that memorandum, here is the most succinct summary of what was actually requested and why. I have edited out a bunch of dates, references to legal precedents, and names of those involved, for clarity.

EEOC …. issued a sworn charge of discrimination, alleging Penn “engaged in a pattern or practice of harassment based on national origin, religion, and/or race against Jewish employees, in violation of Title VII.” Specifically, [EEOC] alleged Penn failed to provide Jewish faculty, staff and other employees a work environment free from religious harassment. [The charge was] premised … on “publicly available information”—including, among other sources, a federal lawsuit against Penn and President Magill’s statements.

…. EEOC issued an administrative subpoena to obtain from Penn contact information of potential employee victims or witnesses of antisemitic harassment. While the EEOC initially considered subpoenaing all Penn employees’ contact information, it decided not to do so, assuming Penn would object on grounds of relevance. The EEOC also believed it could not effectively investigate Commissioner Lucas’s charge by calling 20,000 individuals, as it is “short-staffed” and has “tremendous inventory,”

Accordingly, the EEOC sought to identify primarily employees “aligned with the Penn Jewish community.” Such employees, the EEOC believed, would be reasonably likely to have information relevant to Commissioner Lucas’s charge. The EEOC could not demand from Penn all employees’ contact information and their religious affiliation. While federal law requires employers to maintain data on, among other things, employees’ race and sex, the same is not true of religion. And so, while the EEOC can subpoena employers for employees’ contact information and race and sex in racial and sexual harassment cases, it cannot issue similar subpoenas in religious harassment cases.

The EEOC’s subpoena therefore seeks, among other things,

(1) the names of employees who reported antisemitic harassment to Penn;
(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.

So, here is the rub: In cases where sexual or racial harassment is alleged, the sex and/or race of the community members has been recorded and is easily available to the EEOC investigators. In cases that are alleging religious harassment, religious affiliation is not recorded by the institution, and must be inferred through other than direct classification in the existing records.

Since the Trump addmistration is known to use antisemitism as a pretext for limiting and punishing academic freedom, any EEOC investigation, involving race, sex or antisemitic harassment might be suspect. But if the EEOC is ever going to effectively and fairly investigate such allegations, it is going to need information about who might might have been harassed or might have witnessed such harassment.