University of Pennsylvania v. EEOC

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 "the privilege 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. Penn stated 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 weaken education by interfering with tenure-granting decisions. With confidentiality lost, less candid evaluations would result in lower quality evaluations and appointment of less qualified tenured faculty. Penn alleged "that the quality of instruction and scholarship [will] decline as a result of the burden the EEOC 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 whether a university can enjoy "a special privilege, grounded in either the common law or the First Amendment, to prevent disclosure of relevant peer review information."