reversing district court’s denial of discovery in part because “[t]he district court minimized the importance of appellants’ discovery needs in connection with” intent evidence and finding that “if unable to engage in discovery, [the plaintiff] cannot prove intent, and without proof of intent, he has no case”
How later courts described this case
- reversing district court’s denial of discovery in part because “[t]he district court minimized the importance of appellants’ discovery needs in connection with” intent evidence and finding that “if unable to engage in discovery, [the plaintiff] cannot prove intent, and without proof of intent, he has no case”
- adopting a balancing approach shielding tenure votes from “routine discovery” in discrimination suit when plaintiff has not been provided with a detailed statement of reasons for the denial of reappointment
- recognizing academic privilege but holding plaintiff's need for information outweighed college's interest in confidentiality
- "In the context of peer selection as well, academic freedom cannot be paramount to all other rights.... [A]cademic freedom is illusory when it does not protect faculty from censurious practices but rather serves as a veil for those who might act as censors."
Written by the judges who cited it.
The opinion
LEONARD P. MOORE,
Circuit Judge (concurring):
I concur in Judge Oakes’ opinion to the extent that the opinion states “our decision today holds that- absent a statement of reasons, the balance tips towards discovery and away from recognition of privilege” and that such a statement will “permit the rejected probationer to remedy identified shortcomings, to correct erroneous information on which the peer review committee based its decision, as well as perhaps to realize that the decision resulted from institutional considerations unrelated to his or her competence.”
In my opinion the statement should be that of the P & B committee rather than that of the two members thereof who, insofar as the record discloses, have not been authorized to speak for the committee. Both Magistrate Washington and Judge Pierce were mindful of the possibility of a protective order. Such an order might issue in the event that future developments in the depositions go beyond the spirit of Judge Oakes’ opinion, but it is not for the Court of Appeals to outline the course of future discovery. I only express the caveat that the federal courts not add the selection and promotion of college faculty to their already manifold problems.
On Rehearing
On petition for rehearing, the appellees argue that a presidential statement of reasons, note 9 supra, is sufficient (a) by virtue of the president’s participating and review *910 ing role in peer review proceedings and (b) by virtue of a gloss put on the collective bargaining agreement by arbitrators’ decisions that require the president to undertake an independent review of the decision of the peer review committee(s). The appellee thus argues that, contrary to the statement in footnote 9, the president may not “simply rely” and will not “usually be relying, solely on the faculty committee’s decision.” We continue to disagree with argument (a). We demur as to argument (b). Without foreclosing the appellees from making argument (b) in subsequent cases, we note that in any event no presidential statement of reasons was made here, and no committee statement was made or required by the collective bargaining contract. Courts weighing the proper scope of compelled disclosure in a civil rights action are not constrained, of course, by a collective bargaining agreement.