What is Civil Society? (Part 2)
We wrote previously about civil society as the space between the individual and the state, made up of institutions like universities, nonprofits, religious communities, and civic organizations. These are the places where people gather freely, build shared norms, and navigate difference.
Over the past few years, civil society has faced growing challenges, divisions, and pressures that threaten to weaken this vital pillar of American democracy.
Civil society is not just where democracy happens; it helps sustain it. These institutions create the conditions for participation, pluralism, and shared norms, but that role also makes them vulnerable to pressure, politicization, and intrusion. When they lose the ability to manage conflict or maintain independence, the effects ripple outward, weakening trust, participation, and ultimately the democratic system itself.
Why are we talking about civil society now?
Over the past month, a judge issued a ruling in EEOC v. University of Pennsylvania, a case in which the Equal Employment Opportunity Commission is investigating whether the University of Pennsylvania failed to protect Jewish employees from discrimination.
As part of that investigation, the EEOC sought internal documents from the university, including information that could identify Jewish employees and, in effect, create lists based on religious identity and affiliation. Penn argued these requests were too broad and raised Constitutional concerns, including issues of free speech and freedom of association. In March, Judge Gerald J. Pappert allowed most of the subpoena to move forward while blocking disclosure that would directly reveal affiliation with specific Jewish organizations. Penn has appealed the ruling, arguing it would cause “irreparable harm” to constitutionally protected First Amendment and privacy rights.
For many in the Jewish community, there is a clear interest in ensuring that antisemitism is taken seriously and investigated when it occurs. Civil rights enforcement is a critical tool for accountability, particularly when institutions fail to protect their members. At the same time, many Jews and other minority communities hold deep sensitivities about government actions that could expose or track religious association due to historical examples of government persecution.
This creates a real tension: how to address antisemitism without setting precedents that could weaken the privacy and religious freedom on which Jewish communal life depends.
What does this mean for democracy?
At the center of this case is a core constitutional principle: the First Amendment protects not only speech and religion, but also the right to associate freely. That protection exists to prevent government overreach into communal life, especially when it comes to religious or political affiliation. Courts have long recognized that forced disclosure can chill participation and undermine these freedoms, as seen in NAACP v. Alabama, where the Supreme Court blocked the state from requiring the NAACP to reveal its membership lists.
The ruling in the Penn case attempts to navigate this boundary by allowing the investigation to proceed while limiting certain disclosures. But the underlying question remains unresolved: when does a legitimate investigation become an intrusion into protected association and expression?
A functioning democracy depends on holding two principles at once: enforcing civil rights and protecting Constitutional freedoms. When institutions engage in or enable discrimination, it undermines equal rights, opportunity and fairness, core promises of American democracy. But if government, in seeking to prevent or correct discrimination, interferes too aggressively in associational life, Constitutional rights are also threatened.
Pluralism, the ability of people with different identities, beliefs, and affiliations to coexist and participate fully in civic life, depends on both accountability and freedom. When either breaks down, the system does not correct itself; it becomes harder to sustain the conditions that make democratic participation possible.
What does this mean for Jewish communities?
For Jewish communities, these dynamics are particularly acute. Jewish life is deeply rooted in voluntary association, from synagogues to student groups to a wide range of communal organizations. That participation depends on a sense of safety – not only from discrimination, but from unnecessary exposure of one’s religious identity or affiliations.
At the same time, there is clear and growing urgency to take antisemitism seriously and investigate and mitigate it when it occurs. The Penn case sits directly in that tension, reflecting both the need for strong protections against discrimination and the importance of safeguarding the associational life that sustains Jewish communities.
That dual concern is not contradictory. It is exactly the kind of balance between values in tension that a functioning democracy is meant to hold.
This moment calls for deeper reflection on the role of civil society in a democratic system. How should institutions balance independence with accountability? Where should the line be drawn between necessary oversight and overreach? And what safeguards are needed to ensure that efforts to protect rights do not inadvertently undermine them?
What can be done?
Learn
Strengthening civil society requires understanding how legal frameworks operate in institutional settings. Learn more about the different perspectives about balancing the values of safety and security on the one hand and civil rights on the other.
Speak
Engage directly with your communities and the institutions you are part of, from religious organizations to universities. Use this resource and the questions above as a guide.
Act
Participate in shaping boundaries. Civil society depends on active engagement, and your voice matters most within the institutions to which you belong. Reach out to the institutions you’re part of, your alma mater, your workplace, your community, and elected officials; seek to understand how they approach these issues; and make clear where you stand.
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