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Judge Reaffirms: EEOC May Subpoena Penn's Records as to "Jewish-Related Organizations" (and Others) in Investigation of Anti-Semitic Harassment at Penn

But the judge suspends his decision pending appeal, so that the appellate court has "time to consider and decide the merits of this case, absent unnecessary procedural deadlines."

Eugene Volokh | 4.27.2026 2:20 PM

From today's decision by Judge Gerald Pappert (E.D. Pa.) in EEOC v. Trustees of Univ. of Pa.:

In the wake of Hamas's October 2023 terrorist attack on Israel, the University of Pennsylvania's then-President Elizabeth Magill and others affiliated with the school stated publicly numerous times that Jewish faculty, employees and others at Penn had been subject to vile acts of antisemitism and harassment on campus…. Prompted by these statements, … [t]he EEOC … issued an administrative subpoena, with which Penn refused to comply, seeking contact information for Penn employees who may have been victims of, or witnesses to, such harassment…. The Court granted the EEOC's application [for] {judicial enforcement of the subpoena}, requiring Penn to comply with most of the subpoena by May 1.

Penn, and later the intervenors, moved to stay the Court's order pending appeal…. Penn does not have a strong chance of prevailing on appeal but makes, narrowly, a showing of irreparable harm. Staying the Court's order will not substantially injure the EEOC and a stay will allow the Third Circuit Court of Appeals to address in an orderly manner a matter of great public interest….

A request for a stay pending appeal prompts four questions: (1) whether the applicant has made a strong showing it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether a stay will substantially injure the other party in the litigation; and (4) whether the public interest favors a stay….

Penn does not have a strong chance of success on the merits, and its motion further exposes its vulnerabilities on appeal. The charge of discrimination is valid, the EEOC's subpoena seeks information relevant to the charge and the subpoena does not unduly burden Penn. The subpoena also does not violate substantive due process or the First Amendment. The Court explained its reasoning in its memorandum opinion [see this post], and Penn either ignores that reasoning, mischaracterizes it, or objects to it on superficial and conclusory grounds….

Penn … contends the EEOC's subpoena is "so novel" it cannot be enforced. Penn stresses "the EEOC has cited no authority in which a court enforced a subpoena conscripting an employer to identify employees of a specific religion."  But the EEOC requested this information to further a charge of discrimination based on religion because in 2023 President Magill made numerous public statements over a one-month period describing the pernicious acts of antisemitism Jewish individuals, including faculty and other employees, experienced on Penn's campus.  While the EEOC's investigation of a major university for alleged systemic religious discrimination may be comparatively unique, the purpose of its subpoena is not. The subpoena seeks contact information for employees affiliated with the Penn Jewish community because, in the EEOC's view and to tailor its requests as narrowly as possible, those employees are more likely to possess information relevant to........

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