Petitioner
University of Pennsylvania
Respondent
Equal Employment Opportunity Commission
Petitioner's Claim
That the university has special privilege grounded in either common law or the First Amendment to prohibit disclosure of peer review materials relevant toracial, sexual, or national origin discrimination claims in tenure decisions.
Chief Lawyer for Petitioner
Rex E. Lee
Chief Lawyer for Respondent
Kenneth Winston Starr, U.S. Solicitor General
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Anthony M. Kennedy, Sandra Day O'Connor, Thurgood Marshall, William H. Rehnquist, Antonin Scalia, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
9 January 1990
Decision
In a unanimous decision, upheld the court of appeals finding that neither common law nor a First Amendment academic freedom privilege protects peer reviewtenure materials.
Significance
The Supreme Court found universities had no special legal privilege for withholding court-requested materials. Academic freedoms indirectly protected by the First Amendment were individual freedoms, not institutional. The decisionopened tenure-granting decisions to greater public scrutiny, protecting employees from discrimination based on sex, age, and national origin. The Court also maintained a reluctance to acknowledge new common law privileges.
Tenure at colleges or universities is a status granted to professors protecting them from abrupt dismissal. Tenure is an important achievement in a scholar's career and comes after years of research and teaching. During the tenuregranting process, fellow professors critically evaluate the scholar's performance. Peer evaluations are commonly confidential to encourage candid evaluations of a candidate's qualifications.
Congress passed the Civil Rights Act in 1964. Title VII of the Act made it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." The act originally exempted institutions of higher learning. However, recognizing the widespread problem of discrimination in educational institutions, Congress expanded Title VIIin 1972 to include universities.
Title VII also created the Equal Employment Opportunity Commission (EEOC) toinvestigate charges of discrimination. The EEOC was given a broad right of access to any "relevant" evidence for its enforcement duties. The confidentialnature of peer review evaluations increasingly conflicted with the EEOC's needs for information. When universities refused information, the EEOC often responded with subpoenas through the courts.
The courts applied different methods to arrive at rulings, thus creating inconsistencies. The Third Circuit Court's EEOC v. Franklin and Marshall College (1986) decision denied the right to withhold confidential peer reviews. Some other circuit courts used a balancing test to decide between emphasison academic freedom or discrimination. Another circuit court provided protection of tenure committee members' identities by omitting their names from files sent to the EEOC. The Supreme Court sought to resolve these conflicts by accepting the University of Pennsylvania (Penn) case.
Penn is a private institution of higher learning providing teaching and research in 12 different "schools" including the Wharton School of Business. In 1985, Wharton denied tenure to Rosalie Tung, an associate professor on the faculty. She filed a charge of discrimination with the EEOC alleging tenure was denied based on her race, sex, and national origin.
Tung claimed sexual harassment by the department chairman. When she insistedtheir relationship remain professional, he wrote a negative letter to Penn'sPersonnel Committee, which makes final decisions in tenure reviews. Tung claimed the majority of Wharton's faculty members gave her positive recommendations for tenure. Also, she named five male faculty members who received more favorable assessments than she, yet, according to Tung, her accomplishments andqualifications were equal to or better than their qualifications. Lastly, although not given any specific reason for tenure denial, Tung discovered the committee based its decision on the pretext that Wharton was not interested inChina and related studies. She alleged the real reason was Wharton did not want a Chinese American woman on its faculty.
The EEOC agreed to investigate Tung's charge. To do so, they requested relevant information from Penn. When Penn refused to provide certain information, the EEOC issued a subpoena for, among other things, tenure review files of Tung and the five male faculty members Tung had named. Penn insisted the EEOC demonstrate a particular need in addition to showing relevance to obtain the peer review materials. The school insisted the peer documents were "privileged"information. For these purposes, privilege is defined as the legal ability to resist disclosure of certain document contents if a special need beyond relevance is not shown. The EEOC applied to the U.S. District Court for the Eastern District of Pennsylvania for enforcement of the subpoena and an enforcement order was issued. The Court of Appeals for the Third Circuit affirmed theenforcement decision and rejected Penn's claim of privilege.
Penn appealed to the Supreme Court and the Court issued a writ of certiorari, an order commanding the lower court to forward records of the case tothe superior court so the case could be heard. The Court granted certiorari limited to the disclosure of the documents in question and did not seek to address discrimination allegations.
Two Claims Lead to One Question
Penn based its arguments on two claims: a common law privilege claim and a First Amendment academic freedom right. Because peer review is central to the functioning of universities, Penn asked the Court to recognize a "common law privilege against disclosure of confidential peer review materials." The common law claim was grounded in federal rules of evidence which provide that "theprivilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Common law is generally based on reason and common sense rather than rigid laws. Although Penn conceded the information sought passed the relevance test, they contended the EEOC did not have an absolute right to acquire such evidence and that it must show a special need. Pennstated such privilege claims have precedents in executive privilege for presidential communications and grand jury proceedings.
Penn also focused on First Amendment "academic freedom" concepts. Penn directed the Court to "language in prior cases acknowledging the crucial role universities play in dissemination of ideas in our society and recognizing academic freedom as a special concern of the First Amendment." One essential academic freedom a university possesses is deciding "on academic grounds who may teach" using the tenure process. Revealing peer review information could weakeneducation by interfering with tenure-granting decisions. With confidentialitylost, less candid evaluations would result in lower quality evaluations andappointment of less qualified tenured faculty. Penn alleged "that the qualityof instruction and scholarship [will] decline as a result of the burden theEEOC subpoenas place on the peer review process." In previous cases before the Court, traditional academic freedom concerned an individual's right to speak or teach what they chose. Penn asked for a new institutional academic freedom for the university's procedures outside scrutiny, even when charges of discrimination are brought. Both claims resulted in the same question of whethera university can enjoy "a special privilege, grounded in either the common law or the First Amendment, to prevent disclosure of relevant peer review information."
No Academic Institutional Privilege
Unanimously, the Supreme Court upheld the court of appeals by finding neithera common law nor a First Amendment academic freedom privilege for peer tenure review materials. The Court directed Penn to comply with the subpoena and provide the EEOC all requested peer review information. In considering the common law privilege claim, the Court noted that Congress, in extending Title VII coverage to educational institutions, weighed academic autonomy against thehigh costs of discrimination. Congress decided preventing discrimination wasmore important than any risks opening peer review files would create. Therefore, it did not recognize a particular privilege for peer review documents. Blackmun reasoned that Penn "has not offered persuasive justification for itsclaim that this Court should go further than Congress thought necessary to safeguard confidentiality." In fact, the Court noted that for many universitiesconfidentiality was not an issue, and open access to peer review files was the rule.
The Court endorsed court of appeals language that, "Clearly, an alleged perpetrator of discrimination can not be allowed to pick and choose the evidence which may be necessary for an agency investigation." Requiring the EEOC to give a specific reason for access to the information beyond a show of relevancewould essentially give universities a weapon to frustrate investigations. Finally, no historical or constitutional basis existed granting privilege for peer review materials as there was for granting privileges for presidential andgrand jury communication and documents.
In considering First Amendment academic freedom claims, the Court decided Penn was misguided. The Court found that the EEOC was not trying to tell universities to whom to grant tenure, who to teach, or what ideas will be taught. Itwas simply making sure such decisions were not based on race, sex, or national origin. Blackmun wrote, "The Commission is not providing criteria [guidelines] that (Penn) must use in selecting teachers. Nor is it preventing the university from using any criteria it may wish to use except those--including race, sex, and national origin--that are proscribed [banned] under Title VII."The Court, therefore, rejected Penn's request to expand the right of academicfreedom to protect confidential peer review materials from disclosure. Pennwas misguided at trying to expand academic freedom to university institutional procedures when freedom is individual.
Impact
The Court's ruling affected all university-level tenure and review committeedecisions. It specified whose files could be looked at, by whom, and for whatpurpose. It placed a high degree of responsibility on university faculty toensure an academic environment free of discrimination. The Penn case demonstrated the Court's reluctance in establishing new common law privileges.
Afterwards, the American Association of University Professors (AAUP) examinedPenn's implications. They agreed on a statement favoring openness. The AAUP stressed faculty members should have full access to their files, access upon request to information in other faculty members' vitae, and ability for university grievance committees to obtain relevant information to decide cases.
A 1993 study revealed most universities did not believe peer review must be confidential to maintain its integrity. Another study indicated many institutions changed aspects of their tenure and promotion process a year after Penn. Although tenure committee meetings remained closed at most universities, over half did not restrict access to peer review documents. This increasedaccess to files at least increased the perception of truthfulness and fairness.
The rejection of a newly defined privilege based on constitutional academic freedom claims is perhaps the most significant part of the Penn decision. Blackmun wrote the Court, in fact, continued to show great respect for academic decision-making. The Court reiterated "free trade in ideas" and upheldtraditional academic freedom. But it clarified the distinction between individual and institutional academic freedom by rejecting the extension of freedomto an institution's autonomy. Universities have no right to keep their procedures free from outside scrutiny. By the latter 1990s, debates over the appropriateness of affirmative action measures increased nationally. Just as withPenn, universities again considered prospects of claiming institutional academic freedom in protecting their affirmative action programs from judicial review by asserting such programs were essential for providing a high quality of"collective speech" on campus.
Related Cases
University of Pennsylvania
Respondent
Equal Employment Opportunity Commission
Petitioner's Claim
That the university has special privilege grounded in either common law or the First Amendment to prohibit disclosure of peer review materials relevant toracial, sexual, or national origin discrimination claims in tenure decisions.
Chief Lawyer for Petitioner
Rex E. Lee
Chief Lawyer for Respondent
Kenneth Winston Starr, U.S. Solicitor General
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Anthony M. Kennedy, Sandra Day O'Connor, Thurgood Marshall, William H. Rehnquist, Antonin Scalia, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
9 January 1990
Decision
In a unanimous decision, upheld the court of appeals finding that neither common law nor a First Amendment academic freedom privilege protects peer reviewtenure materials.
Significance
The Supreme Court found universities had no special legal privilege for withholding court-requested materials. Academic freedoms indirectly protected by the First Amendment were individual freedoms, not institutional. The decisionopened tenure-granting decisions to greater public scrutiny, protecting employees from discrimination based on sex, age, and national origin. The Court also maintained a reluctance to acknowledge new common law privileges.
Tenure at colleges or universities is a status granted to professors protecting them from abrupt dismissal. Tenure is an important achievement in a scholar's career and comes after years of research and teaching. During the tenuregranting process, fellow professors critically evaluate the scholar's performance. Peer evaluations are commonly confidential to encourage candid evaluations of a candidate's qualifications.
Congress passed the Civil Rights Act in 1964. Title VII of the Act made it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." The act originally exempted institutions of higher learning. However, recognizing the widespread problem of discrimination in educational institutions, Congress expanded Title VIIin 1972 to include universities.
Title VII also created the Equal Employment Opportunity Commission (EEOC) toinvestigate charges of discrimination. The EEOC was given a broad right of access to any "relevant" evidence for its enforcement duties. The confidentialnature of peer review evaluations increasingly conflicted with the EEOC's needs for information. When universities refused information, the EEOC often responded with subpoenas through the courts.
The courts applied different methods to arrive at rulings, thus creating inconsistencies. The Third Circuit Court's EEOC v. Franklin and Marshall College (1986) decision denied the right to withhold confidential peer reviews. Some other circuit courts used a balancing test to decide between emphasison academic freedom or discrimination. Another circuit court provided protection of tenure committee members' identities by omitting their names from files sent to the EEOC. The Supreme Court sought to resolve these conflicts by accepting the University of Pennsylvania (Penn) case.
Penn is a private institution of higher learning providing teaching and research in 12 different "schools" including the Wharton School of Business. In 1985, Wharton denied tenure to Rosalie Tung, an associate professor on the faculty. She filed a charge of discrimination with the EEOC alleging tenure was denied based on her race, sex, and national origin.
Tung claimed sexual harassment by the department chairman. When she insistedtheir relationship remain professional, he wrote a negative letter to Penn'sPersonnel Committee, which makes final decisions in tenure reviews. Tung claimed the majority of Wharton's faculty members gave her positive recommendations for tenure. Also, she named five male faculty members who received more favorable assessments than she, yet, according to Tung, her accomplishments andqualifications were equal to or better than their qualifications. Lastly, although not given any specific reason for tenure denial, Tung discovered the committee based its decision on the pretext that Wharton was not interested inChina and related studies. She alleged the real reason was Wharton did not want a Chinese American woman on its faculty.
The EEOC agreed to investigate Tung's charge. To do so, they requested relevant information from Penn. When Penn refused to provide certain information, the EEOC issued a subpoena for, among other things, tenure review files of Tung and the five male faculty members Tung had named. Penn insisted the EEOC demonstrate a particular need in addition to showing relevance to obtain the peer review materials. The school insisted the peer documents were "privileged"information. For these purposes, privilege is defined as the legal ability to resist disclosure of certain document contents if a special need beyond relevance is not shown. The EEOC applied to the U.S. District Court for the Eastern District of Pennsylvania for enforcement of the subpoena and an enforcement order was issued. The Court of Appeals for the Third Circuit affirmed theenforcement decision and rejected Penn's claim of privilege.
Penn appealed to the Supreme Court and the Court issued a writ of certiorari, an order commanding the lower court to forward records of the case tothe superior court so the case could be heard. The Court granted certiorari limited to the disclosure of the documents in question and did not seek to address discrimination allegations.
Two Claims Lead to One Question
Penn based its arguments on two claims: a common law privilege claim and a First Amendment academic freedom right. Because peer review is central to the functioning of universities, Penn asked the Court to recognize a "common law privilege against disclosure of confidential peer review materials." The common law claim was grounded in federal rules of evidence which provide that "theprivilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Common law is generally based on reason and common sense rather than rigid laws. Although Penn conceded the information sought passed the relevance test, they contended the EEOC did not have an absolute right to acquire such evidence and that it must show a special need. Pennstated such privilege claims have precedents in executive privilege for presidential communications and grand jury proceedings.
Penn also focused on First Amendment "academic freedom" concepts. Penn directed the Court to "language in prior cases acknowledging the crucial role universities play in dissemination of ideas in our society and recognizing academic freedom as a special concern of the First Amendment." One essential academic freedom a university possesses is deciding "on academic grounds who may teach" using the tenure process. Revealing peer review information could weakeneducation by interfering with tenure-granting decisions. With confidentialitylost, less candid evaluations would result in lower quality evaluations andappointment of less qualified tenured faculty. Penn alleged "that the qualityof instruction and scholarship [will] decline as a result of the burden theEEOC subpoenas place on the peer review process." In previous cases before the Court, traditional academic freedom concerned an individual's right to speak or teach what they chose. Penn asked for a new institutional academic freedom for the university's procedures outside scrutiny, even when charges of discrimination are brought. Both claims resulted in the same question of whethera university can enjoy "a special privilege, grounded in either the common law or the First Amendment, to prevent disclosure of relevant peer review information."
No Academic Institutional Privilege
Unanimously, the Supreme Court upheld the court of appeals by finding neithera common law nor a First Amendment academic freedom privilege for peer tenure review materials. The Court directed Penn to comply with the subpoena and provide the EEOC all requested peer review information. In considering the common law privilege claim, the Court noted that Congress, in extending Title VII coverage to educational institutions, weighed academic autonomy against thehigh costs of discrimination. Congress decided preventing discrimination wasmore important than any risks opening peer review files would create. Therefore, it did not recognize a particular privilege for peer review documents. Blackmun reasoned that Penn "has not offered persuasive justification for itsclaim that this Court should go further than Congress thought necessary to safeguard confidentiality." In fact, the Court noted that for many universitiesconfidentiality was not an issue, and open access to peer review files was the rule.
The Court endorsed court of appeals language that, "Clearly, an alleged perpetrator of discrimination can not be allowed to pick and choose the evidence which may be necessary for an agency investigation." Requiring the EEOC to give a specific reason for access to the information beyond a show of relevancewould essentially give universities a weapon to frustrate investigations. Finally, no historical or constitutional basis existed granting privilege for peer review materials as there was for granting privileges for presidential andgrand jury communication and documents.
In considering First Amendment academic freedom claims, the Court decided Penn was misguided. The Court found that the EEOC was not trying to tell universities to whom to grant tenure, who to teach, or what ideas will be taught. Itwas simply making sure such decisions were not based on race, sex, or national origin. Blackmun wrote, "The Commission is not providing criteria [guidelines] that (Penn) must use in selecting teachers. Nor is it preventing the university from using any criteria it may wish to use except those--including race, sex, and national origin--that are proscribed [banned] under Title VII."The Court, therefore, rejected Penn's request to expand the right of academicfreedom to protect confidential peer review materials from disclosure. Pennwas misguided at trying to expand academic freedom to university institutional procedures when freedom is individual.
Impact
The Court's ruling affected all university-level tenure and review committeedecisions. It specified whose files could be looked at, by whom, and for whatpurpose. It placed a high degree of responsibility on university faculty toensure an academic environment free of discrimination. The Penn case demonstrated the Court's reluctance in establishing new common law privileges.
Afterwards, the American Association of University Professors (AAUP) examinedPenn's implications. They agreed on a statement favoring openness. The AAUP stressed faculty members should have full access to their files, access upon request to information in other faculty members' vitae, and ability for university grievance committees to obtain relevant information to decide cases.
A 1993 study revealed most universities did not believe peer review must be confidential to maintain its integrity. Another study indicated many institutions changed aspects of their tenure and promotion process a year after Penn. Although tenure committee meetings remained closed at most universities, over half did not restrict access to peer review documents. This increasedaccess to files at least increased the perception of truthfulness and fairness.
The rejection of a newly defined privilege based on constitutional academic freedom claims is perhaps the most significant part of the Penn decision. Blackmun wrote the Court, in fact, continued to show great respect for academic decision-making. The Court reiterated "free trade in ideas" and upheldtraditional academic freedom. But it clarified the distinction between individual and institutional academic freedom by rejecting the extension of freedomto an institution's autonomy. Universities have no right to keep their procedures free from outside scrutiny. By the latter 1990s, debates over the appropriateness of affirmative action measures increased nationally. Just as withPenn, universities again considered prospects of claiming institutional academic freedom in protecting their affirmative action programs from judicial review by asserting such programs were essential for providing a high quality of"collective speech" on campus.
Related Cases
- Sweezy v. New Hampshire, 354 U.S. 234 (1957).
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
- Jaffe v. Redmond, 116 S.Ct. 1923 (1996).
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