University of Pennsylvania v. EEOC

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 decision opened 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 tenure granting 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 VII in 1972 to include universities.

Title VII also created the Equal Employment Opportunity Commission (EEOC) to investigate charges of discrimination. The EEOC was given a broad right of access to any "relevant" evidence for its enforcement duties. The confidential nature 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 emphasis on 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 insisted their relationship remain professional, he wrote a negative letter to Penn's Personnel 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 and qualifications 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 in China 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 the enforcement 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 to the 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.