Opposition Brief — Franklin & Marshall College v. Equal Employment Opportunity Commission

~~ ‘ x 4

=’, +4

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Supreme Court, U.S.

FILED

MAY 2 1008

No. 85-1439 JOSEPH F. SPANIOL, JR, .

| CLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

FRANKLIN AND MARSHALL COLLEGE, PETITIONER

V.

EQuaL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THirkD CIRCUIT

BRIEF FOR THE EQUAL EMP DYMENT

OPPORTUNITY COMMISSION IN OPPOSITION

CAROLYN B. KUHL

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JouNNy J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity Commission

Washington, D.C. 20507

QUESTION PRESENTED

Whether the Equal Employment Opportunity Commis-

sion may have access to information in a college’s tenure

review files relevant to its investigation of a Title VII charge

that the college discriminatorily denied a professor tenure.

TABLE OF CONTENTS

Page

ph BPTTETETERIET EEE I

ths ee Cee VAKendnedeeeeeesenanes

le eek be ebedebseous eueeenoseeees I

PRM ccc cece ccccccscesecccnccccccccccs 4

Re ee ce ceeds eke ehennseté.ocee 13

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner- Denver Co.,

ft ere 6,9

Banerjee v. Board of Trustees,

648 F.2d 61, ceft. denied, 454 U.S.

DT -ccn cee cand eae caaesh ebeeee8 8

Bob Jones University v. United States,

Se iis cca enennneened bee

Branzburg v. Hayes, 408 U.S. 665 ......... 6

Craik vy. Minnesota State University Bd.,

| fs Ff EST TTT TTT rrr 8

Davis v. Weidner, 596 F.2d 726 ......... 3,6

Dinnan, In re, 661 F.2d 426 ............ 8, 10

EEOC vy. Associated Dry Goods Corp.,

kk i reer ee 10

EEOC v. Bay Shipbuilding Corp.,

SE wh denceeneecscevsees eee 10

EEOC v. Shell Oil Co.,

4 kere | & A

EEOC v. University of Notre Dame

dus Lac, 715 F.26 S31 occ ceccee 8, 10, 11, 12

(IIT)

IV

Page

Cases—Continued:

Elkins v. United States, 364 U.S. 206 ...... 5

Gray v. Board of Higher Education,

tf , SPeperererrer rrr er 8, 10, 11, 12

Herbert v. Lando, 441 U.S. 153 ........... 5

Hishon v. King & Spalding, 467 U.S. 69 .... 8

Jepsen v. Florida Board of Regents,

SE RUD KGS GA a caenbevicescvecees 10

Keyes v. Lenoir Rhyne College,

552 F.2d 579, cert. denied, 434 U.S.

SEE ED avdeceseewibccsdcesteces 10-11

Keyishian v. Board of Regents,

LE SPOeere eT Teer TT TTT TTT 8

Kunda v. Muhlenberg College,

ff b Serer Te Ter TT ee 6,8

Langland v. Vanderbilt Unversity,

589 F. Supp. 995, aff'd,

oo fe eer 12, 13

Lynn v. Regents of the University

of California, 656 F.2d 1337, cert.

denied, 469 U.S. 823 (1982) ......... 10, 12

Manning v. Trustees of Tufts College,

oe fF ae eee 8

Powell v. Syracuse Unversity,

580 F.2d 1150, cert. denied, 439 U.S.

ae 8

Regenis of the University of California v.

MS ee eee ee ee 8

Cases—Continued:

Regents of the University of Michigan v.

Ewing, No. 84-1273 (Dec. 12, 1985) ...... 9

Scott v. University of Delaware,

601 F.2d 76, cert. denied, 444 U.S.

Re ee ee re rae 8

Smith v. University of North Carolina,

nf ae 8

Sweeney v. Board of Trustees,

604 F.2d 106, cert. denied, 444

FE EE a ee 8

Sweezy v. New Hampshire,

| Ree PR en ee Sean 7,8

Trammel v. United States, 445 U.S. 40 ..... 5

United States v. Arthur Young & Co.,

eee 1]

United States v. Bryan, 339 U.S. 323 ....... 5

United States v. Nixon, 418 U.S. 683 ...... 5

Zahorik v. Cornell University,

ET Eieidbeadewencadewsacece-ns 8

Statutes and regulation:

Civil Rights Act of 1964, Tit. VII,

42 U.S.C. 2000e et seg. .... 2,3,6,9, 10, 11

Te Ps POD vc vsecccvcceseces 6

eT re 6

a MD oo vccccccsscccess 9

de re 6

VI

Page

Statutes and regulation—Continued:

Equal Employment Opportunity Act

of 1972, Pub. L. No. 92-261, $ 3,

86 Stat. 103 ...cccccccccccccccccccececs 6

FO C.F. BBLZ2 ccccccccsccccecceces 9-10

Miscellaneous:

118 Cong. Rec. (1972) :

PD. 1992 ...cccccccccccccccscccccccces 6

Pp. 1993 ..... ec cccccecccccccccccceees 6

EEOC Compliance Manual § 83.4(b)

(CCH) ¥ 1784 (Apr. 1986) .........----. 10

H.R. Rep. 92-238, 92d Cong., Ist Sess.

SEDTED cveoccencdccanececsesecsnseesose 6

S. Rep. 92-415, 92d Cong., Ist Sess.

CED cccesvcsdeseseedoesehecseseteses 6

Iu the Supreme Court of the Mnited States

OCTOBER TERM, 1985

No. 85-1439

FRANKLIN AND MARSHALL COLLEGE, PETITIONER

V.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-25a) is

reported at 775 F.2d 110. The order of the district court (Pet.

App. 29a) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

October 21, 1985. A petition for rehearing was denied on

November 29, 1985 (Pet. App. 26a-28a). The petition for a

writ of certiorari was filed on February 27, 1986. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

The United States District Court for the Eastern District

of Pennsylvania ordered petitioner to comply with a sub-

poena issued by the Equal Employment Opportunity

(1)

2

Commission (EEOC or Commission) (Pet. App. 29a). The

court of appeals affirmed (id. at la-25a).

1. In June 1981, Gerard Montbertrand, then an Assist-

ant Professor in petitioner’s French Department, filed a

charge with the EEOC alleging that petitioner violated Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000¢ et seq.,

by denying him tenure because of his national origin.

Montbertrand had been recommended for tenure by his

department, but petitioner’s Professional Standards Com-

mittee, consisting of five elected tenured faculty members

and the Dean of the College, subsequently recommended

denial of tenure. The Committee’s recommendation was

adopted by petitioner’s dean and president.’ Montbertrand

was advised by the College president that the Committee

recommendation against tenure was based upon his “defi-

ciencies in the areas of scholarship and general contribu-

tions [which] were not sufficiently offset by performance in

other areas”. Pet. App. 2a-3a.

The EEOC began its investigation by seeking, through a

questionnaire, information about the allegations in the

charge. When some of the requested information was not

provided, the EEOC issued a subpoena seeking information

regarding petitioner’s tenure decisions made between

November 1977 and July 1983, including tenure recom-

mendation forms prepared by faculty members, annual

evaluations, letters of reference, and evaluations of publica-

tions by outside experts; notes, letters, and memoranda

considered during the tenure deliberations; and minutes of

Professional Standards Committee tenure meetings begin-

ning in November 1977. Petitioner refused to provide the

_

!Montbertrand subsequently sought reconsideration by the Commit-

tee, which reaffirmed its decision (Pet. App. 3a). He also filed a petition

with the College Grievance Committee seeking review of the tenure

denial, but his petition was denied (ibid.).

3

bulk of this information, arguing inter alia that the material

was protected by a qualified academic peer review privilege.

Pet. App. 3a-5a.?

2. a. The Commission, after issuing a denial of petition-

er’s administrative petition to revoke the subpoena (Pet.

App. 30a-37a), brought this subpoena enforcement action.

The district court ordered the subpoena enforced in its

entirety and, with the EEOC’s concurrence, allowed peti-

tioner to delete the names of professors and identifying data

contained in the material. Jd. ai Sa-6a, 29a.

b. The court of appeals (Pet. App. la-25a) affirmed the

district court’s enforcement order. It first declined to create

a qualified academic peer review privilege (id. at 6a-10a).

The court, following its own precedent, “concluded from the

legislative history of Title VII and its amendments that,

notwithstanding principles of academic freedom, tenure

decisions fall within the intended scope of the Act” (id. at

10a (citation omitted)). The court reasoned that “ ‘Congress

must have recognized that in order to achieve its legislative

goals, courts would be forced to examine critically univer-

sity employment decisions’” (ibid. (quoting Davis v.

Weidner, 596 F.2d 726, 731 (7th Cir. 1979)).3

*Petitioner resisted production of documents which relate to Mont-

bertrand’s denial of tenure as well as documents relating to other tenure

candidates. Petitioner did allow an EEOC investigator to review the

minutes of the Professional Standards Committee’s consideration of

Montbertrand, but now refuses to allow the EEOC any additional

access to those minutes. See C.A. App. 63a-64a.

*The court of appeals recognized the petitioner’s interest in the con!

dentiality of its peer review process, but concluded that this interest

must give way to Congress’s mandate that academic employers abide by

the strictures of Title VII: “(W]e have no choice but to trust that the

honesty and integrity of the tenured reviewers * * * will overcome

feelings of discomfort and embarrassment” which may result from the

fact that their decisions could be reviewed by the EEOC if challenged as

discriminatory (Pet. App. 10a).

4

The court also declined to require an initial showing by

the EEOC of some merit to its charge prior to a disclosure

order (Pet. App. | la-14a). It found petitioner’s argument to

the contrary to be “inconsistent with the language, history

and purpose of Title VII and with Congress’ grant of inves-

tigatory authority to the EEOC” (id. at 1 la). It relied explic-

itly on this Court’s decision in EEOC v. Shell Oil Co., 466

U.S. 54 (1984), which, it pointed out, made clear that a

district court need not find the “charge of discrimination to

be well-founded, verifiable, or based on reasonable suspi-

cion before enforcing an EEOC subpoena” (Pet. App. | 1a).

The court of appeals emphasized that, while neither the

EEOC nor the courts may reevaluate a candidate’s qualifi-

cations, the EEOC’s statutorily mandated role is to deter-

mine whether there is evidence to support a charge of dis-

crimination. To this end, the peer review materials “must be

investigated to determine whether the evaluations are based

in discrimination” and the “alleged perpetrator of discrimi-

nation cannot be allowed to pick and choose the evidence

which may be necessary for an agency investigation” (id. at

12a-14a).!

ARGUMENT

Petitioner makes two arguments in favor of certiorari: (1)

that colleges and universities are entitled to a special privi-

lege exempting them to some (unspecified) extent from the

legal proceedings necessary to enforce the civil rights laws

‘Chief Judge Aldisert dissented (Pet. App. 1Sa-25a). He expressed the

view that the subpoena should be enforced insofar as it seeks tenure

review materials regarding the specific decision to deny Montbertrand

tenure (id. at 24a), but should not be enforced in its entirety until the

EEOC has “show{n] that it had established a sufficient factual and legal

basis to warrant the serious intrusion into [petitioner’s] tenure review

process in other cases” (id. at 18a). The dissent castigated the majority

for “slavish allegiance to conceptual jurisprudence” and failing to “con-

sider the decision’s consequence upon the social order” (id. at 22a).

5

and to which most other organizations in this country are

subject; and (2) that a conflict exists in how the courts of

appeals have treated challenges by academic institutions to

civil rights proceedings. But there is no basis for the special

privilege petitioner seeks, and any conflict is nascent at best,

minor in any event, and likely to recede in light of this

Court’s recent decision in EEOC v. Shell Oil Co., 466 U.S.

54 (1984). Accordingly, further review is not warranted.

1. The court below correctly held that academic peer

review materials must be produced by universities if the

subpoenaed materials are relevant to a charge of discrimina-

tion. The court’s rejection of a qualified academic freedom

privilege for peer review documents underlying academic

tenure decisions accords with the precept that privileges,

because they “contravene the fundamental principle that the

‘public . . . has a right to every man’s evidence,’ ™ are not

favored under federal law (7Trammel v. United States, 445

U.S. 40, 50 (1980), quoting United States v. Bryan, 339 U.S.

323, 331 (1950)). See also Herbert v. Lando, 441 U.S 153,

175 (1979); United States v. Nixon, 418 U.S. 683, 709-710

(1974). Consequently, privileges should be accepted “ ‘only

to the very limited extent that permitting a refusal to testify

or excluding relevant evidence has a public good transcend-

ing the normally predominant principle of utilizing all

rational means for ascertaining truth’ ”( Trammel, 445 U.S.

at 50, quoting Elkins v. United States, 364 U.S. 206, 234

(1960) (Frankfurter, J., dissenting)). Similarly, in determin-

ing whether to create a new privilege it is also appropriate to

analyze first whether there are other “important interests at

stake in opposing the creation of the asserted privilege”

(Herbert v. Lando, 441 U.S. at 171; see Pet. App. 9a-10a).

Adoption of the privilege advocated by petitioner would

conflict not only with the fundamental truth-seeking func-

tion of the judicial system, but also with the paramount

national interest of non-discrimination in

6

employment (see, e.g., Alexander v. Gardner- Denver Co.,

415 U.S. 36, 47 (1974)). In declining to create a privilege, the

court of appeals properly held that the interest of academic

employers in the confidentiality of tenure review evidence

was insufficient to overcome this interest.°

Certainly, Congress did not contemplate such a privilege

under Title VII. In 1972, it extended to educators the same

protection Title VII affords other employees (Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-261,

$ 3, 86 Stat. 103-104; see Kunda v. Muhlenberg College,

621 F.2d 532, 550 (3d Cir. 1980)). Congress removed the

exemption for educational institutions based upon its con-

clusion that “[t]here is nothing in the legislative background

of Title VII, nor does any national policy suggest itseif” to

support the exemption (S. Rep. 92-415, 92d Cong., Ist Sess.

12 (1971) (emphasis added)); see also H.R. Rep. 92-238, 92d

Cong., Ist Sess. 19-20 (1971); 118 Cong. Rec. 1992 (1972)

(remarks of Sen. Williams). Indeed, in extending Title VII

to cover institutions like petitioner, Congress rejected

arguments similar to those raised by petitioner here (see 118

Cong. Rec. 1993 (1972) (remarks of Sen. Allen) (coverage of

educational institutions would “place[] in serious jeopardy”

“{a]cademic tenure—the very cornerstone of academic free-

dom”)). Accordingly, Congress intended that “educational

institutions, like other employers in the Nation, should

report their activities to the Commission and should be

subject to the Act”(S. Rep. 92-415, supra, at 12) and that the

courts and the EEOC “would be forced to examine critically

university employment decisions” (Davis v. Weidner, 596

F.2d 726, 731 (7th Cir. 1979)). See also 42 U.S.C. 2000e-

5(b), 2000e-8(a), 2000e-9.

‘Cf. Branzburg v. Hayes, 408 U.S. 665 (1972) (declining to create a

privilege for newsmen from grand jury testimony). If a privilege for a

newsman is rejected, so should be the suggested privilege for petitioner,

whose First Amendment claim here is much more tenuous.

7

Petitioner proposes indefinite but potentially substantial

restrictions on the availability to the Commission and the

courts of the information on which it bases its employment

decisions. The asserted privilege would make examination

of academic employment decisions difficult or impossible

and, thus, thwart Congress’s explicit direction to the Com-

mission to enforce Title VII against academic employers as

vigorously as against all other employers. Without complete

information about a challenged employment decision,

neither the EEOC nor the courts would be able to determine

whether discrimination has played a role in it. Here, for

instance, only by examining petitioner’s decision-making

and its treatment of similarly situated individuals can the

Commission determine whether the asserted reasons for the

denial of tenure were pretextual and, thus, whether there

was discrimination against the charging party. Any re-

quirement that the EEOC make some sort of preliminary

showing before obtaining relevant peer review materials

would be particularly inappropriate and detrimental to Title

VII enforcement (see Pet. App. 24a-25a (Aldisert, C.J.,

dissenting)). Adoption of such a standard would be contrary

to this Court’s admonition in EEOC v. Shell Oil Co., 466

U.S. 54, 72 n.26 (1984), that “any effort by the court [in a

subpoena enforcement proceeding] to assess the likelihood

that the Commission would be able to prove the claims

made in the charge would be reversible error.”

Petitioner’s interest in academic freedom will not be

affected by a refusal to create the privilege it seeks. Aca-

demic freedom in its legitimate sense—the ability of a scho-

lar to express and examine unconventional ideas without

fear of reprisal or censure (see Sweezy v. New Hampshire,

354 U.S. 234, 250 (1957) (plurality opinion); id. at 262-263

(Frankfurter, J., concurring))—is not seriously implicated

by Commission or court review of the peer review process

8

for evidence of unlawful discrimination.’ Indeed, if aca-

demic freedom were construed to require complete secrecy

of the process, “it would rapidly become a double-edged

sword threatening the very core of values that it now pro-

tects” (Jn re Dinnan, 661 F.2d 426, 430 (Sth Cir. 1981)).

Any constitutional guarantees that protect the university’s

selection of faculty exist to protect its right to select educa-

tors “ ‘on academic grounds’” (Sweezy v. New Hamp-

shire, 354 U.S. at 263 (Frankfurter, J., concurring) (citation

omitted)); they cannot be used as a shield when the charge

under investigation is precisely that the tenure decision was

not made on academic grounds, but on the basis of sex,

race, or national origin (Gray v. Board of Higher Educa-

tion, 692 F.2d 901, 909 (2d Cir. 1982); In re Dinnan, 661

F.2d at 430; see also EEOC v. University of Notre Dame du

Lac, 715 F.2d 331, 337 (7th Cir. 1983); cf. Hishon v. King &

Spalding, 467 U.S. 69, 78 (1984); id. at 81 (Powell, J.,

concurring)).’

“ 6

®There are numerous cases in which courts have reviewed peer review

materials to determine whether an institution's asserted reasons for its

decision were mere pretext masking discrimination, without apparent

harm to the peer review process (or, apparently, even objection from the

university). See Craik v. Minnesota State University Bd.. 731 F.2d 465,

482-483 (8th Cir. 1984); Zahorik v. Cornell University, 729 F.2d 85,

89-91 (2d Cir. 1984); Banerjee v. Board of Trustees, 648 F.2d 61,64 n.5

(Ist Cir.), cert. denied, 454 U.S. 1098 (1981); Smith v. University of

North Carolina, 632 F.2d 316, 323-331 (4th Cir. 1980); Kunda v.

Muhlenberg College, 621 F.2d at 544-546; Manning v. Trustees of

Tufts College, 613 F.2d 1200, 1203 (ist Cir. 1980); Sweeney v. Board of

Trustees, 604 F.2d 106, 112 (1st Cir. 1979), cert. denied, 444 U.S. 1045

(1980); Scott v. University of Delaware, 601 F.2d 76, 81 (3d Cir.), cert.

denied, 444 U.S. 931 (1979); Powell v. Syracuse University, 580 F.2d

1150, 1152, 1156 (2d Cir.), cert. denied, 439 U.S. 984 (1978).

7Accordingly, petitioner’s citations (at 13, 15) to Sweezy and Keyi-

shian v. Board of Regents, 385 U.S. 589 (1967), are inapposite. Nor do

the other cases discussing academic freedom cited in the petition (at ©

12-15) support petitioner's argument. Justice Powell’s concurrence in

Regents of the University of California v. Bakke, 438 U.S. 265, 312

9

Finally, enforcement of the subpoena will involve only a

minimal infringement upon the college’s interest in confi-

dentiality. Petitioner may delete the names and identifying

characteristics of peer reviewers from the records to be

disclosed. Moreover, there will be no public disclosure as a

result of compliance with the subpoena. Enforcement of the

subpoena merely requires petitioner to provide its records

to the agency authorized by Congress to receive them. The

EEOC is, under threat of criminal penalities, specifically

prohibited from publicly disclosing such records (see 42

U.S.C. 2000e-8(e)). And once litigation commences, if it

(1978), involved the permissibility of diversity as a university goal for its

student body—not immunization from Title VII discovery. Cf. Bob

Jones University v. United States, 461 U.S. 574, 604 (1983). In Regents

of the University of Michigan v. Ewing, No. 84-1273 (Dec. 12, 1985),

the Court was faced not with a discrimination claim, but a substantive

due process claim asking the Court to review the academic decision

itself, not to determine whether an impermissible factor such as race or

national origin influenced the decision. While stating its reluctance to

second guess the decision by a university not to allow a student to retake

an exam, the Court clearly left open the possibility that review in a case

like the instant one would be warranted (slip op. 11 (emphasis added;

footnote and citation omitted)):

When judges are asked to review the substance of a genuinely

academic decision, such as this one, they should show great

respect for the faculty’s professional judgment. Plainly they may

not override it unless it is such a substantial departure from

accepted academic norms as to demonstrate that the person or

committee responsible did noi actually exercise professional

judgment.

In short, there can be no serious contention that the holding below

conflicts with decisions of this Court. This Court has never suggested

that academic freedom limits enforcement of Title VII. Rather, this

Court consistently has recognized Congress's judgment that the elimi-

nation of discrimination in employment is a national priority of the

highest order. See, e.g., Alexander v. Gardner-Denver Co., 415 US.

36, 47 (1974).

*The only disclosure permitted is to charging parties in contemplation

of litigation, to witnesses where disclosure is deemed necessary for

securing appropriate relief, or to interested governmental agencies (29

10

does, a defendant, university, or college can protect itself

against disclosure by securing a protective order (see EEOC

v. University of Notre Dame du Lac, 715 F.2d at 340;

EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312 n.9

(7th Cir. 1981); Jepsen v. Florida Board of Regents, 610

F.2d at 1385)).

2. Although, as petitioner states, the courts of appeals

have professed various stands on whether an academic

privilege could ever be recognized, every appellate court but

one to face the question has ruled that the Commission’s or a

plaintiff's need for relevant information to prove a dis-

crimination claim outweighed the academic institution’s

interest in nondisclosure. See Gray v. Board of Higher

Education, 692 F.2d 901 (2nd Cir. 1982) (court declined to

recognize a privilege and, applying a “balancing” test,

ordered disclosure of tenure committee votes); Jn Re Din-

nan, 661 F.2d 426 (Sth Cir. 1981), cert. denied, 457 U.S.

1106 (1982) (privilege rejected; court affirmed order in

employment discrimination suit finding member of tenure

committee in contempt for his refusal to disclose vote);

Lynn v. Regents of the University of California, 656 F.2d

1337, 1346-1349 (9th Cir. 1981), cert. denied, 459 U.S. 823

(1982) (in dictum, court strongly suggested that tenure

review file, including peer evaluations, be disclosed to plain-

tiff on remand); Jepsen v. Florida Board of Regents, 610

F.2d 1379, 1384-1385 (Sth Cir. 1980) (disclosure of faculty

evaluation forms of other professors ordered). See also

Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 (4th

C.F.R. 1601.22). See also EEOC v. Associated Dry Goods Corp., 449

U.S. 590 (1981). Even this limited disclosure is further circumscribed by

the Commission’s procedures. Before disclosing any information, the

Commission requires of each potential recipient a signed agreement not

to disclose the information “except in the normal course of a civil action

or other proceeding instituted under Title VII” (EEOC Compliance

Manual § 83.4(b) (CCH) 4 1784, at 1421-1422 (Apr. 1986)).

1]

Cir.), cert. denied, 434 U.S. 904 (1977) (in dictum, the court

said that “if the College had sought to justify any male-

female disparity on the basis of these [confidential peer]

evaluations the plaintiff should have been granted the

opportunity to use them”). There is, accordingly, no need

for the Court to resolve any conflict among the standards

articulated by these courts.° In the only case decided in favor

of a university on this issue, EEOC v. University of Notre

Dame du Lac, 715 F.2d 331, 338 (7th Cir. 1983), the court’s

holding was that the university could delete names and

identifying data from its tenure review files before disclosing

them to the Commission."® The issue of whether a privilege

protects the production of unredacted files is not presented

here, because disclosure of redacted files is all that has been

ordered in this case.'! Thus, no clear conflict has emerged in

%Some of these cases, notably Gray, are distinguishable as well

because they do not involve the EEOC’s Title VII subpoena authority.

See Gray, 692 F.2d at 905; cf. University of Notre Dame du Lac, 715

F.2d at 337 n.3. Thus, not only did the Second Circuit decline to crea’ a

privilege (692 F.2d at 904), it declined to do so in a discovery situation

where it had more flexibility than had it been faced with the Commis-

sion’s explicit statutory mandate.

The Seventh Circuit stated, in dictum, that “there must be substance

to the charging party’s claim and thorough discovery conducted before

even redacted files are made available” (715 F.2d at 337 n.4). The notion

that a charge must be shown to have some merit before a court can

enforce an EEOC subpoena seeking documents relevant to the charge

was rejected in EEOC v. Shell Oil Co., 466 U.S. 54, 71-72, 77, 81 (1984);

id. at 93-94 (O’Connor, J., concurring in part and dissenting in part),

which was issued after the Seventh Circuit’s ruling in Notre Dame.

Indeed, the Court said that requiring such a showing “would be reversi-

ble error” (id. at 72 n.26). See also United States v. Arthur Young &

Co., 465 U.S. 805, 815-817 (1984) (also decided after Notre Dame).

'!Moreover, as a general matter, the assertion of academic privilege

by defendant in Notre Dame was considerally more modest in scope

than it is here.

12

the circuits regarding an academic employer’s obligation to

provide peer review materials in response to either a Com-

mission subpoena or a private plaintiff's discovery in a

discrimination action.

Indeed, the EEOC would be entitled to production of this

evidence under any of the standards articulated by the

courts of appeals. Those circuits that balance a plaintiff's

need for disclosure against an academic employer’s interest

in confidentiality have indicated that the balance tips in

favor of disclosure of peer review information relevant to a

claim of discrimination where the academic employer relied

upon the requested material in making the tenure decision

(see Gray, 692 F.2d at 905-906 (“[i]f the defendant’s claim

that the tenure denial was based on evaluations of [plain-

tiff’s] performance discussed at the [committee] meeting,

then certainly [plaintiff] will be hamstrung if denied disclo-

sure”); and Lynn v. Regents of the University of California,

656 F.2d at 1347). Here, petitioner claimed that it refused to

award Mr. Montbertrand tenure because of, for instance,

deficiencies in his research. In order to determine whether

this was in fact petitioner’s reason, and not a pretext, the

Commission needs to examine the evaluations upon which

petitioner relied and to compare them with evaluations of

similarly situated tenure candidates. Similarly, disclosure

would be ordered even if the Seventh Circuit’s “particular-

ized need” standard (EEOC v. University of Notre Dame

du Lac, 715 F.2d at 338) were applied. Inasmuch as the

information is not available from any other source and is

critical to EEOC’s ability to conduct an adequate investiga-

tion, “the need of the party seeking disclosure outweighs the

adverse effect such disclosure would have on the policies

underlying the privilege” (ibid. (citations omitted)). See

Langland v. Vanderbilt University, 589 F. Supp. 995, 1008

(M.D. Tenn. 1984) (citation omitted) (“even those courts

which profess to recognize such [an academic] privilege

13

require production of the files when the defendants rely

upon the evaluations contained in them to justify their

actions”), aff'd, 772 F.2d 907 (6th Cir. 1985) (Table).

The differences in professed approaches in the cases cited

by the petitioner do not rise to the level of an actual conflict;

as discussed, they have not led to different results so far.

Moreover, whatever nascent conflicts there may be in the

circuits will not be a problem at all for a given college, which

necessarily will have only one circuit standard with which to

deal. The EEOC, for whom alone a lack of national unifor-

mity would pose problems, is willing to wait and see whether

a practical conflict does develop, particularly in light of this

Court’s intervening decision in EEOC v. Shell Oil Co. If the

Seventh Circuit (or another court of appeals) ignores Shell

Oil, and a practical conflict does develop, it can be resolved

at that time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CAROLYN B. KUHL

Acting Solicitor General

JOHNNY J. BUTLER

General Counsel (Acting)

May 1986

DO}J-1986-05

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