holding that in camera review of tenure file for purpose of assisting factual determination in Title VII action violates due process
How later courts described this case
- holding that in camera review of tenure file for purpose of assisting factual determination in Title VII action violates due process
- defendant’s university-wide tenure-granting pattern, not just tenure patterns in individual departments, relevant in disparate treatment case
- generalized statistics relevant to individual's prima facie case because tenure decisions in academic context are highly subjective
- “when plaintiffs establish that decisions regarding ... employment are motivated by discriminatory attitudes relating to race or sex, or are rooted in concepts which reflect such attitudes, however subtly, courts are obligated to afford the relief provided by Title VII”
Written by the judges who cited it.
The opinion
ALARCON, Circuit Judge,
concurring.
I concur in the opinion of the court insofar as it appears to hold that the district court may have violated Lynn’s right to due process by admitting the contents of the tenure review file into evidence “for the purpose of assisting it in making factual *1349 determinations or to evaluate other evidence”, supra at 1346, after denying Lynn’s request to examine these records because they contain privileged and confidential matter.
The balance of the court’s opinion is obi-ter dictum which is not only unnecessary to the disposition of this matter, but fails to give due consideration to the problems which will flow from a requirement that the confidentiality of peer review evaluation must be breached in every case in which a teacher’s ability is based, in large part, on the content of the peer review file, without regard to protection of the privacy of the commentators.
I would exercise judicial restraint and leave to another day the consideration of these seductive issues, when the questions are squarely before this court on a record which is otherwise free of reversible error.