University of Pennsylvania v. Equal Employment Opportunity Commission
After petitioner university denied tenure to associate professor Rosalie Tung, she filed a charge with respondent Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of race, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964. In the course of its investigation, the EEOC issued a subpoena seeking, inter alia, Tung's tenure-review file and the tenure files of five male faculty members identified in the charge as having received more favorable treatment than Tung. Petitioner refused to produce a number of the tenure-file documents and applied to the EEOC for modification of the subpoena to exclude what it termed "confidential peer review information." The EEOC denied the application and successfully sought enforcement of the subpoena by the District Court. The Court of Appeals affirmed, rejecting petitioner's claim that policy considerations and First Amendment principles of academic freedom required the recognition of a qualified privilege or the adoption of a balancing approach that would require the EEOC to demonstrate some particularized need, beyond a showing of relevance, to obtain peer review materials.
Held: A university does not enjoy a special privilege requiring a judicial finding of particularized necessity of access, beyond a showing of mere relevance, before peer review materials pertinent to charges of discrimination in tenure decisions are disclosed to the EEOC. Pp. 188-202.
(a) The claimed privilege cannot be grounded in the common law under Federal Rule of Evidence 501. This Court is reluctant to recognize petitioner's asserted privilege where it appears that Congress, in expressly extending Title VII's coverage to educational institutions in 1972 and in thereafter continuing to afford the EEOC a broad right of access to any evidence "relevant" to a charge under investigation, balanced the substantial costs of invidious discrimination in institutions of higher learning against the importance of academic autonomy, but did not see fit to create a privilege for peer review documents. In fact, Congress did provide a modicum of protection for an employer's interest in the confidentiality of its records by making it a crime for EEOC employees to publicize before the institution of court proceedings materials obtained during investigations. Petitioner has not offered persuasive justification for its claim that this Court should go further than Congress thought necessary to safeguard confidentiality. Disclosure of peer review materials will often be necessary in order for the EEOC to determine whether illegal discrimination has taken place. Moreover, the adoption of a requirement that the EEOC demonstrate a specific reason for disclosure, beyond a showing of relevance, would place a substantial litigation-producing obstacle in the EEOC's way and give universities a weapon to frustrate investigations. It would also lead to a wave of similar privilege claims by other employers, such as writers, publishers, musicians, and lawyers, who play significant roles in furthering speech and learning in society. Furthermore, petitioner's claim is not supported by this Court's precedents recognizing qualified privileges for Presidential and grand and petit jury communications and for deliberative intra-agency documents, since a privilege for peer review materials lacks a historical, constitutional, or statutory basis similar to that of those privileges. Pp. 188-195.
(b) Nor can the claimed privilege be grounded in First Amendment "academic freedom." Petitioner's reliance on this Court's so-called academic freedom cases is somewhat misplaced, since, in invalidating various governmental actions, those cases dealt with attempts to control university speech that were content based and that constituted a direct infringement on the asserted right to determine on academic grounds who could teach. In contrast, petitioner here does not allege any content-based regulation but only that the "quality of instruction and scholarship [will] decline" as a result of the burden EEOC subpoenas place on the peer review process. The subpoena at issue does not provide criteria that petitioner must use in selecting teachers or prevent it from using any such criteria other than those proscribed by Title VII, and therefore respects legitimate academic decisionmaking. In any event, the First Amendment does not embrace petitioner's claim to the effect that the right of academic freedom derived from the cases relied on should be expanded to protect confidential peer review materials from disclosure. By comparison with cases in which the Court has recognized a First Amendment right, the complained-of infringement is extremely attenuated in that the burden of such disclosure is far removed from the asserted right, and, if petitioner's claim were accepted, many other generally applicable laws, such as tax laws, might be said to infringe the First Amendment to the extent they affected university hiring. In addition, the claimed injury to academic freedom is speculative, since confidentiality is not the norm in all peer review systems, and since some disclosure of peer evaluations would take place even if the "special necessity" test were adopted. Moreover, this Court will not assume that most evaluators will become less candid if the possibility of disclosure increases. This case is in many respects similar to Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, where, in rejecting the contention that the First Amendment prohibited requiring a reporter to testify as to information obtained in confidence without a special showing that such testimony was necessary, the Court declared that the Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of generally applicable laws, id., at 682, 92 S.Ct. at 2657, and indicated a reluctance to recognize a constitutional privilege of uncertain effect and scope, id., at 693, 703, 92 S.Ct. at 2662, 2668. Pp. 195-202.
850 F.2d 969 (CA3 1988), affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Rex E. Lee, Washington, D.C., for petitioner.
Sol. Gen. Kenneth W. Starr, Washington, D.C., for respondent.
Justice BLACKMUN delivered the opinion of the Court.