PHILADELPHIA — The University of Pennsylvania on Tuesday defended its refusal to give the federal government names of faculty and students affiliated with Jewish programs, telling a judge that doing so would interfere with their First Amendment rights.

The university, which is facing an investigation into antisemitism by the Equal Employment Opportunity Commission, has not complied with a subpoena seeking names and contact information to advance its investigation.

While a lawyer for the commission argued that such requests were routine, lawyers for Penn and other campus groups said Tuesday in federal court in Philadelphia that supplying that information would have a chilling effect on employees’ and students’ constitutional rights.

Amanda Shanor, a lawyer for groups representing Jewish faculty, students, and staff, said group members did not want “their information being put on a list of Jews and sent to the government.”

“That alone is too great a risk,” said Shanor, a Penn associate professor of legal studies and business ethics.

The EEOC sued Penn in November, saying it had failed to comply with a subpoena seeking information as part of an investigation into antisemitism launched by the federal agency two years earlier in the wake of Hamas’ attack on Israel.

The commission had demanded a list of employees in Penn’s Jewish Studies Program, rosters of members of all Jewish clubs and groups, and names of employees who filed antisemitism complaints.

In a response calling the subpoena unconstitutional, Penn said the request invoked “the frightening and well-documented history of governmental entities that undertook efforts to identify and assemble information regarding persons of Jewish ancestry.”

Numerous organizations representing professors and students intervened in the case in opposition to the subpoena, including the American Association of University Professors.

At Tuesday’s hearing, Debra Lawrence, a lawyer for the EEOC, called the subpoena a “garden-variety” request. The organization thought seeking names of individuals in groups “more likely to be aligned with Penn’s Jewish community” would be more efficient than asking for information on Penn’s 20,000 employees, Lawrence said.

“Obviously, that’s created somewhat of a backlash,” she said.

While the EEOC says the information would be kept confidential, lawyers opposing the subpoena pointed to reports about the Department of Government Efficiency’s access to sensitive data.

Along with rising antisemitism, the lawyers said, concerns around the federal government’s handling of personal data have contributed to fears about what could happen if Penn turned over lists.

Questions from the judge

U.S. District Judge Gerald J. Pappert, who did not issue a decision Tuesday, pressed lawyers on that argument and references to Nazi Germany in court filings.

“Is the EEOC a regime?” Pappert said, referring to a statement by the university professors’ association.

“We are not equating the EEOC with 1938,” said Seth Waxman, a lawyer for Penn. But “there are very, very valid First Amendment” concerns.

The EEOC filed a charge against Penn in December 2023, alleging the university had subjected employees “to an unlawful hostile work environment based on national origin, religion, and/or race.”

Waxman said the EEOC’s charge, which cited public statements from the university about antisemitic incidents, was not nearly specific enough to be justified.

Lawrence — who noted that the probe began during former President Joe Biden’s administration — said it was “fairly common” for the commission to initiate an investigation without an employee coming forward.

Where the Penn case differs, she said, is that while many employers collect race, sex, and age data about employees, religion is not similarly tracked.

Matthew Hamermesh, a lawyer representing groups including the Jewish Law Students Association at Penn’s Carey Law School, said that a person’s religion was a “deeply personal issue” that should not be turned over to the federal government.

“Assembling this information, identifying it in some way with the Jewish community … with the risk of possible disclosure, the risk that creates is shocking to the conscience,” Hamermesh said.

Jewish law students might be deterred from practicing their religion by participating in Friday night dinners or Torah study sessions, Hamermesh said, if they thought their religious identities might be compromised.

Lawrence said that in order to investigate, the commission needed to interview people. “We’re not looking for a list of Jews,” she said. “How about, a spreadsheet that identifies the contact information of potential victims and witnesses?”

Waxman said Penn did not have some of the information sought, including membership lists for groups it had no jurisdiction over. He also said the university had cooperated with the EEOC on other demands.

While he said the university had offered to inform all employees of the investigation, and that they could contact the EEOC “with no notice to Penn whatsoever,” Pappert said the EEOC would not be required to agree to Penn’s terms.

The judge questioned whether siding with Penn and the other subpoena opponents would make it more difficult in the future for the EEOC to investigate discrimination against Jewish people.

He also pushed back on arguments about potentially violating promises of confidentiality to participants in university-hosted “listening sessions” on antisemitism, saying, “No one has a constitutional right to feel comfortable.”

Pappert said he would not be ruling until a transcript of Tuesday’s hearing was available. The decision could then be appealed to the U.S. Court of Appeals for the Third Circuit.

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