No: The Government Shouldn’t Be Asking For the Names of Jewish Faculty Members

University of Pennsylvania's campus.

​The act of collecting the names of certain faculty members at a university in order to protect them from discrimination sounds like a good idea. But from a constitutional perspective, it can very quickly start to sound like a registration program, and nothing good can come from that.

Yet that’s exactly what’s happening at the University of Pennsylvania, where this month a federal judge ordered the school to turn over the names of Jewish faculty members. The U.S. Equal Employment Opportunity Commission (EEOC) is investigating the possibility of antisemitism and had issued a subpoena requesting the names.

Penn objected on privacy grounds and its decision was supported by the American Academy of Jewish Research and the school’s own Jewish Law Students Association. The Anti-Defamation League is skeptical too, on the basis of unintended consequences: “History has taught us to be vigilant when governments compile lists of people based on religious identity, and we hope that the EEOC’s important work can continue without such a list.”

From a First Amendment perspective, the privacy dangers inherent in the government’s subpoena and the judge’s order trace out a larger trajectory: publishing lists of names is a kind of outing, and that represents a direct threat to associational privacy. Anonymity – the right not to be known – is a particular kind of privacy, one that carves out space for a particular kind of free expression, namely the right to anonymous association.

Disclosure can quickly become exposure in today’s digital world, especially when the environment is as politically and culturally charged and prone to doxing as it is today. 

The order also sounds a discordant historical note.

The government’s request, no matter how well intentioned, is inadvertently contaminated by the most notorious crime in human history, the first stage of which began when the new Nazi government in April 1933 listed and purged Jewish professors from Germany’s universities. 

In this country, recall the Nixon “Jew count” episode of 1971. And lest we forget our Dickens, in A Tale of Two Cities lists were not just administrative tools but instruments of fate, symbols of cold-blooded revenge, and the literal difference between life and death.

At the very least, there is something coarse about such counts. Consider the vintage Saturday Night Live skit in which Tom Hanks played a game show host asking contestants to look at photos of celebrities and to press the buzzer to answer, “Jew or not Jew?” Answers: actor Michael Landon, Jew; then-Defense secretary Caspar Weinberger, not Jew.
​
We applaud the desire of the government to come to the protection of Jews on campus, many targeted by a fierce and vicious upwelling of hate. But a list of Jews on campus is too intrusive, too problematic. We urge the EEOC to find another way to protect Jews and people of all beliefs on campus.

DONATE & HELP US DEFEND YOUR FIRST AMENDMENT