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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1163

## Text

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0091%3A3. Public record. Not legal advice.