# Dixon v. Rutgers, the State University of NJ > Supreme Court of New Jersey · May 25, 1988 · 110 N.J. 432 URL: https://www.frixlaw.com/law-library/cases/9695636 ## Case - **Full name:** Ruth F. Dixon, Complainant, v. Rutgers, the State University of New Jersey; Edward J. Bloustein, President; Russell N. Fairbanks, Provost; Walter K. Gordon, Dean, Respondents-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** May 25, 1988 - **Citations:** 110 N.J. 432; 541 A.2d 1046; 56 U.S.L.W. 2716; 47 Empl. Prac. Dec. (CCH) 38,222; 52 Fair Empl. Prac. Cas. (BNA) 1619; 1988 N.J. LEXIS 45 - **Precedential status:** Published - **Opinion:** Concurrence by O'Hern - **Judges:** Garibaldi, O'Hern - **Cited by:** 89 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9695636 ## How later opinions describe it (automated extraction) - holding that collective bargaining agreement cannot deprive one of statutory rights to evidentiary materials in anti-discrimination case because “[u]nder New Jersey law[,] for a waiver of rights to be effective it must be plainly expressed” - holding that collective bargaining agreement cannot deprive one of statutory rights to evidentiary materials in [an] anti- discrimination case because "[u]nder New Jersey law[,] for a waiver of rights to be effective it must be plainly expressed" - holding that "[t]he eradication of `the cancer of discrimination' has long been one of our State's highest priorities" - recognizing the contextual aspects of the redaction process and a court's in camera review ## Opinion text O’HERN, Justice, concurring. In this case the Court has carefully balanced a university’s interest in academic freedom against the interests of faculty members to be free from discrimination. Whether we denote the balance of interests as a qualified privilege with respect to production of evidence or as a protective order in aid of a litigant, under Evidence Rule 4 the underlying search for values remains the same. While I agree that “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed,” United States v. Nixon, 418 U.S. 683, 710 , 94 S.Ct. 3090, 3108 , 41 L.Ed.2d 1039, 1065 (1974), we must not lightly value a university’s interest in academic freedom, since “though not a specifically enumerated constitutional right, [the concept] long has been viewed as a *462 special concern of the First Amendment.” Regents of the Univ. of California v. Bakke, 438 U.S. 265, 312 , 98 S.Ct. 2733, 2759 , 57 L.Ed.2d 750, 785 (1978) (Powell, J., announcing Court’s judgment and expressing his views of case). “ ‘[T]he four essential freedoms’ of a university” have been said to include the freedom “ ‘to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study.' ” Sweezy v. New Hampshire, 354 U.S. 234, 263 , 77 S.Ct. 1203, 1218 , 1 L.Ed.2d 1311, 1332 (1957) (Frankfurter, J., concurring) (citation omitted). The federal courts are divided on whether to denote the policy values at stake as raising a question of “qualified academic freedom,” E.E.O.C. v. University of Notre Dame du Lac, 715 F.2d 331, 337-38 (7th Cir.1983), or of a balancing of interests, Lynn v. Regents of the Univ. of California, 656 F.2d 1337 , 1347 (9th Cir.1981), cert. denied, 459 U.S. 823 , 103 S.Ct. 53 , 74 L.Ed.2d 59 (1982). Even in E.E.O.C. v. Franklin & Marshall College, 775 F.2d 110 (3rd Cir.1985), cert. denied, 476 U.S. 1163 , 106 S.Ct. 2288 , 90 L.Ed.2d 729 (1986), where the Court held that there was no academic privilege, the E.E.O.C. had already agreed before the district court to accept the requested materials with identifying characteristics of the authors removed. 775 F. 2d at 117 . I think it best to speak directly of the recognition of a qualified academic privilege. Perhaps Judge Oakes of the Second Circuit expressed the competing interests best when he stated that recognition of a privilege reflects a balance carefully designed to protect confidentiality and encourage a candid peer review process. It strikes an appropriate balance between academic freedom and educational excellence on the one hand and individual rights to fair consideration on the other, so that courts may steer the “careful course between excessive intervention in the affairs of the university and the unwarranted tolerance of unlawful behavior * * [Gray v. Board of Higher Educ., 692 F.2d 901, 907-08 (2nd Cir.1982) (quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1154 (2d Cir.), cert. denied, 439 U.S. 984 , 99 S.Ct. 576 , 58 L.Ed.2d 656 (1978)).] I would steer that careful course by recognizing, as I think the Court does, discretion in the court or tribunal to view the *463 requested materials to determine whether they are necessary to establish the plaintiffs claim. If the court concludes that the requested materials are relevant, protective measures should be taken to delete such identifying information as would destroy the confidentiality of peer review and to prevent the further dissemination of the materials. I recognize that “enforcement of laws that ban discrimination will [not] always be without cost to other values, including constitutional rights * * * [but] respect for academic freedom requires some deference to the judgment of schools and universities as to the qualifications of professors, particularly those considered for tenure positions.” Hishon v. King & Spalding, 467 U.S. 69 , 80 n. 4, 104 S.Ct. 2229 , 2236 n. 4, 81 L.Ed.2d 59 , 70 n. 4 (1984) (Powell, J., concurring). What we must avoid at all costs is the pursuit of mediocrity that can result from judicially supervised academic decisions. Tenure and promotion processes invariably involve the most solemn educational actions of a university. Snitow v. Rutgers Univ., 103 N.J. 116, 123 (1986). Courts that recognize the qualified academic privilege “seek to foster frank and candid evaluation of candidates by their colleagues during hiring and tenure review committee deliberations.” R. Allen & C. Hazel-wood, “Preserving the Confidentiality of Internal Corporate Investigations,” 12 J.Corp.L. 355, 362 n. 63 (1987). What they seek to avoid are the vapid generalities and euphemisms that supplant “telling it like it is.” When a promotion or retention file betrays no hint of gender or racial bias, a court may sensitively balance the competing interests by ordering appropriate disclosure conditions. The process is a familiar one that we have reviewed in recent cases involving access to sensitive information. We have repeatedly emphasized that the focus must always be on “the character of the materials sought to be disclosed.” State v. Doliner, 96 N.J. 236, 248 (1984). Armed by the parties with a qualitative description of the materials, the trial court will be in a position to balance the claimant’s interest in the information against the *464 potential adverse consequences of disclosure and the university’s need for confidentiality. In the court’s balancing of these interests, some of the considerations that may be examined will include: (1) the extent to which disclosure will impede the university’s functions by discouraging academics from providing information to the university; (2) the effect disclosure may have on persons who have already given such information, and whether they did so in reliance that their identities would be not disclosed; (3) the extent to which university evaluations and promotion and tenure decisions will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to subjective evaluations; and (5) whether any subsequent circumstances have circumscribed the candidate’s need for the materials. Against these and any other relevant factors shall be balanced the importance of the information sought to the candidate’s vindication of the public interest in discrimination-free employment. O’HERN, J., concurring in the result. For affirmance and modification—Chief Justice WILENTZ and Justices, CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7. Opposed —None. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9695636. Public record. Not legal advice.