University of Pennsylvania v. EEOC

Unanimously, the Supreme Court upheld the court of appeals by finding neither a 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 the high costs of discrimination. Congress decided preventing discrimination was more 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 its claim that this Court should go further than Congress thought necessary to safeguard confidentiality." In fact, the Court noted that for many universities confidentiality 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 relevance would 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 and grand 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. It was 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 academic freedom to protect confidential peer review materials from disclosure. Penn was misguided at trying to expand academic freedom to university institutional procedures when freedom is individual.