Over the past year, the Trump Administration campaigned against institutions of higher education openly scorned for being too liberal, or “woke” in the derisive terminology of the right, often seizing hypocritically on charges of anti-Semitism. The threats to Harvard University, which it has thus far fought off by virtue of its successful litigation in federal court in Massachusetts (now on appeal), have been followed by an EEOC charge against the University of Pennsylvania alleging that anti-Semitism on campus has created a hostile work environment for university employees.
Demanding “Lists of Jews” Was Bad Enough
A number of stories have addressed the aspects of the EEOC subpoena issued in furtherance of this charge, commanding Penn to provide the Trump Administration with “lists of Jews,” including both lists of Jewish students and faculty but also lists of members of various on-campus Jewish organizations. A motion for leave to intervene filed by the Pennsylvania affiliate of the ACLU rightly objects to that aspect of the subpoena, noting that the subpoena threatens to create a registry of Jews which, despite the claim that the registry is being sought for Jews’ own good, which its Jewish clients rightly express concern that “[t]hese types of registries don’t remain benign; they create a user-friendly tool for discrimination, and history shows us that actors with malicious goals can easily weaponize them.”
The Attack on Political Speech
But an even more pernicious part of that subpoena is addressed in a Public Citizen amicus brief submitted today. The final three paragraphs of the subpoena seeks to investigate a social media posting https://www.instagram.com/p/C3x5el0pa5r/?img_index=1 in which “Penn Students Against the Occupation” criticized 29 members of the Penn faculty that had traveled to Israel and visited an Israeli university while Israel was bombing Palestinian schools. The students explosively labeled this visit “scholasticide”; the EEOC’s theory appears to be that because this speech by students likely made some Jewish employees uncomfortable, Penn can be liable for having created a “hostile work environment” for such staffers.
We argue that the students’ post is pure political speech that cannot be the basis for a Title VII complaint against a private university for failing to suppress that speech before the speech made some Jewish employees uncomfortable. We point to several lines of long-standing First Amendment authority that run counter to the supposed theory behind the charge that the EEOC purports to be investigating. We also argue that speech criticizing Israel does not discriminate based on the religion or national origin of Jewish employees, however much some of them might identify with Israel, citing the First Circuit’s excellent opinion in a case upholding MIT’s choice not to suppress criticism of Israel, and that the students’ right to speak anonymously protects them against the enforcement of a subpoena seeking to unmask them as authors of such speech.
The Broader Context
In a recent report, PEN America has rightly called out a deliberate campaign by the Trump Administration as well as many state government to target American higher education with an ”expanding web of political and ideological control.” But it is not just universities that are under attack. Independent news media, law firms that provide pro bono services to defend free speech, and state and municipal governments that care about the rights and well-being of minorities, are also under sustained attack, because each of them provide independent bases that could be a bastion of independence that might risk Trump’s creeping totalitarianism.
The stakes are high, and when the targets of such censorship efforts fight back, they deserve support. I was glad to support Harvard’s staff in their litigation and glad to assist Penn in this one.
Many thanks to Pennsylvania appellate lawyer Jim Davy for joining as co-counsel on very short notice, allowing us to file this brief,
