Judge allows Penn affiliates to intervene in ongoing federal antisemitism lawsuit

A federal court granted five Penn affiliates a motion to intervene as defendants in an ongoing antisemitism lawsuit between the University and the Equal Employment Opportunity Commission.

After the Feb. 3 ruling, the proceedings will continue with five groups — the national and Penn chapters of the American Association of University Professors, the University of Pennsylvania Carey Law School Jewish Law Students Association, the Penn Association of Senior and Emeritus Faculty, and the American Academy of Jewish Research — serving as defendants alongside the University. The groups filed their initial motion to intervene in January.

The original lawsuit followed an EEOC subpoena, which required Penn to submit detailed information on workplace antisemitism complaints and membership lists for various Jewish-related campus groups. In November, the agency sued the University for allegedly failing to comply. 

The court denied the motion of several intervenors to file declarations in support of the memo anonymously, requiring that each group file under a named representative.

The judge wrote that the intervenors have a  “direct and specific” interest in the litigation, and their participation could “contribute to a greater understanding of the issues” raised by Penn. The broader legal arguments made by the intervenors, he added, may not be sufficiently represented by the University.

The judge denied several requests to file declarations in support of intervention under seal — or anonymously —writing that  “blanket assertions of harm that ‘could’ come ” falls short of the “clearly defined and serious injury” required to make filings under seal. 

“The court held that our clients had a right to intervene in this case because they had pled a direct and specific interest in protecting their members’ First Amendment right to free association,” Ari Shapell — a staff attorney at the American Civil Liberties Union of Pennsylvania — wrote to The Daily Pennsylvanian. 

Shapell added that ACLU-PA is “grateful that the court provided our clients with a seat at the table.”

According to Wharton professor Amanda Shanor — one of the attorneys representing the intervening organizations — intervenors are now able to make “a much broader range of claims” than those made by the University. 

According to Shanor, intervenors “are making freedom of association, speech, academic freedom, religious right claims, both constitutional and statutory, as well as equal protection claims.”

JLSA co-president and Penn Carey Law student Jacob Naimark said while “no outcome has been secured,” the court’s ruling is “definitely a step in the right direction.”

Naimark also emphasized the differences between the intervenors’ stance and the University's argument. 

“We’re not trying to clear [Penn’s] name and say that there were no problems with antisemitism on campus,” he said. “It’s more about how the investigation is conducted, rather than trying to prevent the investigation from being conducted at all.”

Computer and Information Sciences professor emeritus and PASEF President Mitch Marcus said he was “delighted” the motion was granted. “The PASEF council felt that it was really important for us to be involved in this lawsuit,” Marcus said. 

AAUP-Penn Vice President Lorena Grundy echoed a similar sentiment, calling the development “encouraging.”

“Of course, we felt from the beginning that the motion should be granted ... but you never know,” Grundy said. 

Marcus noted the motion’s success will mean that “even if Penn were to settle ... the intervenors could still say the outcome of this affects our lives, and therefore we demand that this go to trial so that our voices can be heard.”

Shanor added that if the trial does proceed, “everybody will get to argue [the case], and then, presumably, we’ll have a decision from the district court about whether or not the subpoena should be enforced in whole or in part.”

According to Marcus, “the best outcome would be that the government would simply withdraw its request for any of these names.” He also described the EEOC’s demands as a “little horrifying.”

Grundy said AAUP-Penn’s “first and foremost priority is to protect the individuals in this case from their private information getting released.”

“It’s really encouraging to be fighting alongside the Penn administration,” she added.

Grundy and Marcus both hoped the outcome of the suit would set a precedent for future litigation.

“I would hope that what we’re arguing here would be applied and make it easier to protect all groups,” Grundy said. “The EEOC is looking at all employees and employers, not just at universities.”

“Ostensibly, the purpose of investigating antisemitism would be to protect the safety and rights of Jews,” Grundy said. “I would never assume that there is 100% agreement on anything, but everyone that I have talked to has had the same stance that they don’t want their private information released.”

“It’s really important to prevent discrimination and to fight discrimination, but to do so in a way that doesn’t further endanger the group you are trying to protect,” she added. 

Naimark added that the suit’s outcome would have long-lasting consequences for the Jewish community because “this would be information that the government would have in perpetuity.” 

The JLSA and the AAJR — who previously requested to file declarations in support of intervention anonymously —  filed declarations with named representatives on Friday. 

The EEOC now has until Feb. 13 to respond. A judge ruled that oral arguments will take place on March 10.

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