University of Pennsylvania v. Equal Employment Opportunity Commission

Citations: 107 L. Ed. 2d 571; 110 S. Ct. 577; 493 U.S. 182; 1990 U.S. LEXIS 333; 15 Fed. R. Serv. 3d 369; 58 U.S.L.W. 4093; 52 Empl. Prac. Dec. (CCH) 39,539; 51 Fair Empl. Prac. Cas. (BNA) 1118Docket: 88-493

Court: Supreme Court of the United States; January 9, 1990; Federal Supreme Court; Federal Appellate Court

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Petitioner University of Pennsylvania denied tenure to associate professor Rosalie Tung, who subsequently filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, alleging bias based on race, sex, and national origin. The EEOC issued a subpoena for Tung's tenure-review file and tenure files of five male faculty members. The university refused to produce several documents, citing "confidential peer review information," and sought to modify the subpoena. The EEOC denied this request, and the District Court enforced the subpoena, a decision upheld by the Court of Appeals. The Supreme Court held that universities do not possess a special privilege that necessitates a judicial finding of particularized necessity for disclosing peer review materials relevant to discrimination charges, beyond merely showing relevance. The Court reasoned that Congress, in extending Title VII to educational institutions, balanced the need for academic autonomy with the importance of preventing discrimination, and chose not to create a privilege for peer review documents. The Court found that the university's argument lacked persuasive justification and that requiring a specific need for disclosure would hinder EEOC investigations and invite similar privilege claims from other professions. Additionally, the claimed privilege could not be supported by First Amendment academic freedom principles, as previous cases did not directly relate to the disclosure of peer review materials.

Petitioner does not claim a content-based regulation but argues that the EEOC subpoenas negatively impact the quality of instruction and scholarship by burdening the peer review process. The subpoena does not impose criteria on teacher selection or restrict the use of criteria beyond those prohibited by Title VII, thus allowing for legitimate academic decision-making. The First Amendment does not support an expansion of academic freedom to shield confidential peer review materials from disclosure. The alleged infringement on rights is minimal, as the burden of disclosure is distant from the asserted right, and accepting the petitioner’s argument could suggest that various laws, like tax regulations, infringe on First Amendment rights concerning university hiring. The claim that academic freedom is harmed is speculative, since confidentiality isn't universal in peer review processes, and some peer evaluations would still be disclosed even if a "special necessity" standard were applied. The Court does not presume that evaluators would be less candid if disclosure risks increased. The situation is akin to Branzburg v. Hayes, where the Court held that the First Amendment does not eliminate incidental burdens from generally applicable laws. The case concerns whether the University of Pennsylvania, a private institution with approximately 18,000 students, has a special privilege against disclosing peer review materials related to allegations of racial or sexual discrimination in tenure decisions. The context arises from the denial of tenure to Rosalie Tung, who subsequently filed a discrimination charge with the EEOC, alleging sexual harassment and discriminatory treatment compared to male colleagues.

Tung’s department largely recommended her for tenure, yet she received no clear explanation for the negative decision. Upon investigation, she found the Personnel Committee's rationale—that the Wharton School was not focused on China-related research—suspect, alleging it was a pretext for discrimination against her as a Chinese-American woman. The Commission sought information from the University, which resisted providing Tung's tenure-review file and comparable files of five male faculty members. The University requested modifications to a subpoena to exclude "confidential peer review information," including evaluators' letters and internal committee documents, arguing for a balance between privacy interests and the need for investigation. The Commission denied this request, asserting that the withheld documents were essential for assessing the validity of Tung's discrimination claims. It emphasized that merely receiving the Personnel Committee's reasons was insufficient to fulfill its investigative duties regarding possible discrimination. The Commission warned of potential enforcement proceedings if the documents were not supplied within 20 days. The University continued to withhold materials, prompting the Commission to seek enforcement from the U.S. District Court for the Eastern District of Pennsylvania, which issued an enforcement order. The Third Circuit Court of Appeals upheld this order, rejecting the University’s claims of a qualified privilege or a need for a balancing test based on academic freedom.

The Supreme Court granted certiorari to address a compelled-disclosure issue, influenced by a perceived conflict with the Seventh Circuit's ruling in EEOC v. University of Notre Dame du Lac. The University presents two primary claims: a qualified common-law privilege against disclosing confidential peer review materials and a First Amendment right to "academic freedom" to prevent the broad disclosure of these documents. The University seeks a judicial requirement for demonstrating a particularized necessity for access to such materials, beyond mere relevance. 

The common-law privilege claim is based on Federal Rule of Evidence 501, which allows the creation of privileges that protect significant interests. However, the Court emphasizes that privileges must be strictly construed due to the public's right to evidence. It highlights reluctance to establish new privileges, especially in contexts where Congress has already considered related issues and opted not to create a privilege for peer review documents. 

The Court notes that when Congress extended Title VII to educational institutions, it did not include a privilege for peer review materials, reflecting a legislative intent to address discrimination in higher education. Consequently, the Court declines to recognize a new privilege against the disclosure of peer review materials.

Opponents of extending Title VII expressed concerns that enforcing the provisions would undermine academic autonomy by interfering with faculty hiring and promotion decisions. The removal of the exemption for educational institutions subjected tenure decisions to the same enforcement mechanisms as other employment practices. Title VII establishes a structured enforcement process, initiated by a sworn discrimination charge, requiring the Equal Employment Opportunity Commission (EEOC) to investigate and determine if there is reasonable cause for the claim. If reasonable cause exists, the Commission attempts informal resolution; failing that, it may take legal action against the employer. The Act grants the Commission extensive access to relevant evidence for investigations, with the authority to issue subpoenas if compliance is refused. Despite the potential burden on peer review materials, the law does not exempt them from access. Courts tasked with enforcing subpoenas must ensure the relevance of requested materials without assessing the validity of the discrimination charge itself. The University acknowledges the relevance of the information sought by the Commission, yet argues for judicial discretion to protect tenure review documents. However, this interpretation contradicts the clear language of Title VII, which mandates the Commission's access to relevant evidence.

Access provisions under 2000e-8 do not confer a privilege but recognize employer confidentiality interests. While the provision prohibits Commission officers from publicly disclosing information obtained during investigations until proceedings begin, violations can lead to criminal penalties. This indicates that Congress acknowledged confidentiality concerns but did not grant absolute protection, undermining the petitioner's argument for greater safeguards. The importance of confidentiality in academic peer review processes is acknowledged; however, the need to address racial and sexual discrimination is deemed a compelling governmental interest. Disclosure of peer review materials is often essential for the Commission to investigate allegations of discrimination, as such materials may contain critical evidence of discriminatory practices. The Third Circuit Court emphasized that an alleged discriminator should not selectively withhold evidence relevant to investigations. Additionally, imposing a requirement for the Commission to show a "specific reason" for disclosure, rather than just relevance, could hinder its ability to investigate discrimination effectively and may allow employers to obstruct justice. Accepting the petitioner's position could lead to numerous privilege claims from various employers, potentially disrupting accountability in discrimination cases across different sectors, including law and publishing.

Congress has established that the EEOC may obtain "relevant" evidence unless the statute states otherwise. If Congress disagrees with the outcome, it can amend the law. The precedents cited do not support the petitioner's claim of privilege. In United States v. Nixon, the Supreme Court acknowledged a qualified privilege for Presidential communications based on the separation of powers, emphasizing that confidentiality in certain contexts is vital for decision-making. This privilege is constitutionally grounded, unlike the petitioner's claim, which lacks a similar foundation. Historical privileges recognized include the secrecy of grand jury proceedings and the confidentiality of jury deliberations. In NLRB v. Sears, Roebuck, the Court found an exception in the Freedom of Information Act for intra-agency documents based on established privilege, which does not apply to peer review materials. The petitioner argues a First Amendment claim of "academic freedom," referencing cases that highlight the importance of academic freedom in universities for the dissemination of ideas. The petitioner emphasizes its authority to determine faculty appointments based on academic grounds, particularly through its tenure process, which shapes the university's identity over time.

Petitioner argues that the peer review process is critical for the effective operation of a tenure system, relying on candid and confidential evaluations of a candidate's scholarship from both university peers and external scholars. Petitioner contends that requiring disclosure of these evaluations based on mere relevance would undermine the tenure process, infringe on First Amendment rights related to academic freedom, and create a "chilling effect" on candid evaluations. This decline in evaluation quality could lead to less qualified individuals achieving tenure, ultimately harming the quality of education and scholarship at universities. Petitioner claims that such disclosure would foster divisiveness among faculty and impair the free exchange of ideas, necessitating recognition of a First Amendment privilege.

However, the response indicates that petitioner's reliance on past academic-freedom cases is flawed, as those cases addressed government attempts to control academic speech content. The discussed cases, such as Sweezy and Keyishian, involved direct government interference in determining teaching qualifications. In contrast, the EEOC's subpoenas do not aim to influence the content of university discourse or usurp institutional discretion over faculty selection. Instead, the focus is on the perceived negative impact of subpoenas on the quality of peer reviews rather than direct content regulation.

The University retains the authority to use any criteria for academic decisions, excluding those prohibited by Title VII, such as race, sex, and national origin. Courts emphasize the importance of respecting legitimate academic judgments and caution against judicial second-guessing of such decisions. The burden cited by the University, although not directly related to content, does not negate the potential for a valid First Amendment claim; however, it does not align neatly with a recognized right of academic freedom. The University seeks to expand academic freedom to protect the confidentiality of peer review materials, arguing that disclosure undermines this confidentiality, which is vital for the tenure process. However, the claim is characterized as attenuated since the impact on the right to choose faculty is indirect. Accepting the University's position could imply that many laws affecting First Amendment rights would be similarly challenged. The claim is further weakened by the speculative nature of the alleged injury to academic freedom, as confidentiality is not universally maintained in peer review processes, and some disclosure would still occur even under the proposed "special necessity" test. Concerns about a "chilling effect" on academic freedom are seen as only incrementally affected by the absence of a privilege, and there is skepticism about assuming negative intentions within the academic community.

Evaluators may respond to potential disclosure of their evaluations in different ways; some may provide specific examples to counter claims of bias, while others might be less candid. The case parallels Branzburg v. Hayes, where the Supreme Court determined that reporters are not exempt from testifying about confidential information without showing necessity. The Court rejected the First Amendment argument asserting that such disclosure would inhibit information flow, emphasizing that incidental burdens on the press from civil or criminal statutes do not invalidate their enforcement. The Court expressed reluctance to recognize a constitutional privilege without clear evidence of deterrence to informers. Consequently, the EEOC's subpoena process does not infringe upon the petitioner's First Amendment rights, so no special justification is needed to uphold Title VII's application to tenure peer review materials. The Court affirmed the judgment of the Court of Appeals and noted that the petitioner had sought to quash the subpoena in the District Court shortly before the deadline. The Pennsylvania District Court's decision to not adhere to its previous "first-filed" rule was upheld by the Third Circuit.

The applicability of the "first-filed" rule is not addressed as it was not a question for certiorari. The Court of Appeals did not determine whether the Commission's subpoena allows the petitioner to redact disputed records before their production, as this issue was not fully considered by the District Court. Consequently, the Third Circuit remanded the case for further consideration of possible redaction. The excerpt references legislative history and legal precedents regarding the rights of the charging party to initiate action after obtaining a "right-to-sue" letter and clarifies that the prohibition on disclosure does not apply to the charging party, as established in EEOC v. Associated Dry Goods Corp.

The text highlights First Amendment concerns related to government regulation of speech at private and public educational institutions, noting that such regulation must meet a heavy burden of justification. The petitioner does not claim that race, sex, and national origin qualify as "academic grounds" for invoking First Amendment rights. It is noted that while the misuse of grand jury powers can raise First Amendment concerns, there are no allegations of such abuse by the Commission in this case. Finally, the question of whether the District Court's enforcement of the Commission's subpoena will permit redaction of contested materials is not considered.