In University of Pennsylvania v. Equal Employment Opportunity Commission (EEOC, 1990), the U.S. Supreme Court made it clear that university officials do not have a special legal privilege that allows them to refuse to release administratively and judicially requested materials in disputes about tenure. In EEOC, the Court held that university officials were required to release peer review tenure documents to the Equal Employment Opportunity Commission. In light of the Court’s having rejected the claim of university officials who refused to comply on the basis that the materials were confidential and exempt from disclosure, this entry reviews the background of the case and its analysis and reflects on its implications for faculty members in higher education.
Facts of the Case
EEOC arose as commission officials investigated a charge of alleged discrimination on the basis of race, sex, or national origin in violation of Title VII of the Civil Rights Act of 1964. When an Asian American, female associate professor was denied tenure, she filed a claim with the Equal Employment Opportunity Commission. Acting through the EEOC, the faculty member filed a complaint alleging that her department chairperson sexually harassed her, and when she rejected his advances, he retaliated by writing an unfavorable letter to the university committee that was responsible for making the final decision about whether she would be granted tenure. In addition, the faculty member complained that most of her colleagues had recommended her for tenure, and she had not received any reason from university officials as to why she was denied tenure. Further, the faculty member alleged that university officials claimed that they were not interested in her “China-related research,” which she interpreted as a pretext for discrimination based on her national origin and race. As part of its investigation, the EEOC subpoenaed the faculty member’s tenure review file along with the files of five male colleagues who allegedly received better treatment than she did in the review process.
Both a federal trial court, in an unpublished opinion, and the Third Circuit rejected the arguments advanced by university officials as to why they should not have to comply with the Equal Employment Opportunity Commission’s subpoena. University officials then sought further review, and the Supreme Court agreed to hear an appeal.
The Supreme Court’s Ruling
A unanimous Supreme Court, in an opinion authored by Justice Blackmun, affirmed in favor of the EEOC. At the outset, the Court rejected the argument of university officials who contended that they did not have to release the tenure files based on a common-law privilege. If anything, university officials claimed that the Equal Employment Opportunity Commission would have needed to demonstrate a specific need beyond relevance to obtain the materials. However, the Court ruled that because a university does not have a qualified privilege (meaning that officials are not exempt from liability for having made potentially defamatory remarks in the context of promotion and tenure decisions), the EEOC did not need to show anything more than relevance before obtaining peer review materials in connection with a discrimination claim.
In response to the university officials’ claim for a common-law privilege, the Supreme Court reasoned that when Congress extended Title VII coverage to educational institutions, it did not create a privilege for peer review materials. The Court refused to create a new privilege for peer review materials, because they are often necessary to investigate whether “invidious discrimination” has occurred. The Court expressed its concern that if the EEOC had been required to demonstrate a particular need for disclosure, then its investigations would have been hindered. Additionally, the Court did not believe that university materials meet the requisite need for qualified privilege in the same manner as presidential communications, because the latter involve governmental operations, a situation that was not present in the case at bar. To this end, the Court explained that the extension of qualified privilege could lead to many similar requests from other employers, thereby undercutting the authority of the Equal Employment Opportunity Commission.
The Supreme Court was not persuaded by the academic freedom argument that university officials advanced. More specifically, in asserting that confidentiality was necessary to keep the peer review process candid, the university officials claimed that allowing peer review documents to be released on the basis of mere relevance would have infringed on the First Amendment right to academic freedom. However, the Court clarified that academic freedom protections are content based and that university officials had not provided a content-based rationale for prohibiting the release of the materials in the tenure file. The Court thus concluded that it would not expand First Amendment protection to include peer review materials, because there was no reason for it to do so.
Impact of the Ruling
By resolving the litigation in favor of the EEOC, the Supreme Court opened the door for increased disclosure in the tenure process. As a result of Equal Employment Opportunity Commission, then, discrimination that could have remained hidden in confidential peer review documents is now open to judicial scrutiny; it is hoped that it will ensure a more equitable process for all applicants for tenure.
Janet R. Rumple
See also Equal Employment Opportunity Commission; Personnel Records
Russo, C. J., Ponterotto, J. G., & Jackson, B. L. (1990). Confidential peer review: A Supreme Court update and implications for university personnel. Initiatives, 53(2), 11–17.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).