see also: In re Milton S. Hershey Medical Ctr., 535 Pa. 9, 634 A.2d 159 (1993)
|||SUPREME COURT OF THE UNITED STATES
493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571, 58 U.S.L.W. 4093
|||January 9, 1990
|||UNIVERSITY OF PENNSYLVANIA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
|||CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
|||Rex E. Lee, argued the cause for petitioner. With him on the briefs were
Steven B. Feirson, Carter G. Phillips, Mark D. Hopson, Nancy J. Bregstein,
Shelley Z. Green, and Neil J. Hamburg.
|||Solicitor General Starr, argued the cause for respondent. With him on
the briefs were Acting Solicitor General Bryson, Deputy Solicitors General
Wallace and Merrill, Stephen L. Nightingale, Charles A. Shanor, Gwendolyn
Young Reams, Lorraine C. Davis, and Harry F. Tepker, Jr.*
|||Blackmun, J., delivered the opinion for a unanimous Court.
|||The opinion of the court was delivered by: Blackmun
|||After petitioner university denied tenure to associate professor Rosalie
Tung, she filed a charge with respondent Equal Employment Opportunity Commission
(EEOC) alleging discrimination on the basis of race, sex, and national origin
in violation of Title VII of the Civil Rights Act of 1964. In the course
of its investigation, the EEOC issued a subpoena seeking, inter alia, Tung's
tenure-review file and the tenure files of five male faculty members identified
in the charge as having received more favorable treatment than Tung. Petitioner
refused to produce a number of the tenure-file documents and applied to
the EEOC for modification of the subpoena to exclude what it termed "confidential
peer review information." The EEOC denied the application and successfully
sought enforcement of the subpoena by the District Court. The Court of Appeals
affirmed, rejecting petitioner's claim that policy considerations and First
Amendment principles of academic freedom required the recognition of a qualified
privilege or the adoption of a balancing approach that would require the
EEOC to demonstrate some particularized need, beyond a showing of relevance,
to obtain peer review materials.
|||Held: A university does not enjoy a special privilege requiring a judicial
finding of particularized necessity of access, beyond a showing of mere
relevance, before peer review materials pertinent to charges of discrimination
in tenure decisions are disclosed to the EEOC. Pp. 188-202.
|||(a) The claimed privilege cannot be grounded in the common law under Federal
Rule of Evidence 501. This Court is reluctant to recognize petitioner's
asserted privilege where it appears that Congress, in expressly extending
Title VII's coverage to educational institutions in 1972 and in thereafter
continuing to afford the EEOC a broad right of access to any evidence "relevant"
to a charge under investigation, balanced the substantial costs of invidious
discrimination in institutions of higher learning against the importance
of academic autonomy, but did not see fit to create a privilege for peer
review documents. In fact, Congress did provide a modicum of protection
for an employer's interest in the confidentiality of its records by making
it a crime for EEOC employees to publicize before the institution of court
proceedings materials obtained during investigations. Petitioner has not
offered persuasive justification for its claim that this Court should go
further than Congress thought necessary to safeguard confidentiality. Disclosure
of peer review materials will often be necessary in order for the EEOC to
determine whether illegal discrimination has taken place. Moreover, the
adoption of a requirement that the EEOC demonstrate a specific reason for
disclosure, beyond a showing of relevance, would place a substantial litigation-producing
obstacle in the EEOC's way and give universities a weapon to frustrate investigations.
It would also lead to a wave of similar privilege claims by other employers,
such as writers, publishers, musicians, and lawyers, who play significant
roles in furthering speech and learning in society. Furthermore, petitioner's
claim is not supported by this Court's precedents recognizing qualified
privileges for Presidential and grand and petit jury communications and
for deliberative intra-agency documents, since a privilege for peer review
materials lacks a historical, constitutional, or statutory basis similar
to that of those privileges. Pp. 188-195.
|||(b) Nor can the claimed privilege be grounded in First Amendment "academic
freedom." Petitioner's reliance on this Court's so-called academic
freedom cases is somewhat misplaced, since, in invalidating various governmental
actions, those cases dealt with attempts to control university speech that
were content based and that constituted a direct infringement on the asserted
right to determine on academic grounds who could teach. In contrast, petitioner
here does not allege any content-based regulation but only that the "quality
of instruction and scholarship decline" as a result of the burden EEOC
subpoenas place on the peer review process. The subpoena at issue does not
provide criteria that petitioner must use in selecting teachers or prevent
it from using any such criteria other than those proscribed by Title VII,
and therefore respects legitimate academic decisionmaking. In any event,
the First Amendment does not embrace petitioner's claim to the effect that
the right of academic freedom derived from the cases relied on should be
expanded to protect confidential peer review materials from disclosure.
By comparison with cases in which the Court has recognized a First Amendment
right, the complained-of infringement is extremely attenuated in that the
burden of such disclosure is far removed from the asserted right, and, if
petitioner's claim were accepted, many other generally applicable laws,
such as tax laws, might be said to infringe the First Amendment to the extent
they affected university hiring. In addition, the claimed injury to academic
freedom is speculative, since confidentiality is not the norm in all peer
review systems, and since some disclosure of peer evaluations would take
place even if the "special necessity" test were adopted. Moreover,
this Court will not assume that most evaluators will become less candid
if the possibility of disclosure increases. This case is in many respects
similar to Branzburg v. Hayes, 408 U.S. 665, where, in rejecting the contention
that the First Amendment prohibited requiring a reporter to testify as to
information obtained in confidence without a special showing that such testimony
was necessary, the Court declared that the Amendment does not invalidate
every incidental burdening of the press that may result from the enforcement
of generally applicable laws, id., at 682, and indicated a reluctance to
recognize a constitutional privilege of uncertain effect and scope, id.,
at 693, 703. Pp. 195-202.
|||JUSTICE BLACKMUN delivered the opinion of the Court.
|||In this case we are asked to decide whether a university enjoys a special
privilege, grounded in either the common law or the First Amendment, against
disclosure of peer review materials that are relevant to charges of racial
or sexual discrimination in tenure decisions.
|||The University of Pennsylvania, petitioner here, is a private institution.
It currently operates 12 schools, including the Wharton School of Business,
which collectively enroll approximately 18,000 full-time students.
|||In 1985, the University denied tenure to Rosalie Tung, an associate professor
on the Wharton faculty. Tung then filed a sworn charge of discrimination
with respondent Equal Employment Opportunity Commission (EEOC or Commission).
App. 23. As subsequently amended, the charge alleged that Tung was the victim
of discrimination on the basis of race, sex, and national origin, in violation
of § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255,
as amended, 42 U.S.C. § 2000e-2(a) (1982 ed.), which makes it unlawful "to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin."
|||In her charge, Tung stated that the department chairman had sexually harassed
her and that, in her belief, after she insisted that their relationship
remain professional, he had submitted a negative letter to the University's
Personnel Committee which possessed ultimate responsibility for tenure decisions.
She also alleged that her qualifications were "equal to or better than"
those of five named male faculty members who had received more favorable
treatment. Tung noted that the majority of the members of her department
had recommended her for tenure, and stated that she had been given no reason
for the decision against her, but had discovered of her own efforts that
the Personnel Committee had attempted to justify its decision "on the
ground that the Wharton School is not interested in China-related research."
App. 29. This explanation, Tung's charge alleged, was a pretext for discrimination:
"simply their way of saying they do not want a Chinese-American, Oriental,
woman in their school." Ibid.
|||The Commission undertook an investigation into Tung's charge and requested
a variety of relevant information from petitioner. When the University refused
to provide certain of that information, the Commission's Acting District
Director issued a subpoena seeking, among other things, Tung's tenure-review
file and the tenure files of the five male faculty members identified in
the charge. Id., at 21. Petitioner refused to produce a number of the tenure-file
documents. It applied to the Commission for modification of the subpoena
to exclude what it termed "confidential peer review information,"
specifically, (1) confidential letters written by Tung's evaluators; (2)
the department chairman's letter of evaluation; (3) documents reflecting
the internal deliberations of faculty committees considering applications
for tenure, including the Department Evaluation Report summarizing the deliberations
relating to Tung's application for tenure; and (4) comparable portions of
the tenure-review files of the five males. The University urged the Commission
to "adopt a balancing approach reflecting the constitutional and societal
interest inherent in the peer review process" and to resort to "all
feasible methods to minimize the intrusive effects of its investigations."
Exhibit 2 to EEOC's Memorandum in Support of Application for Order to Show
|||The Commission denied the University's application. It concluded that
the withheld documents were needed in order to determine the merit of Tung's
charges. The Commission found: "There has not been enough data supplied
in order for the Commission to determine whether there is reasonable cause
to believe that the allegations of sex, race and national origin discrimination
is true." App. to Pet. for Cert. A31. The Commission rejected petitioner's
contention that a letter, which set forth the Personnel Committee's reasons
for denying Tung tenure, was sufficient for Disposition of the charge. "The
Commission would fall short of its obligation" to investigate charges
of discrimination, the EEOC's order stated, "if it stopped its investigation
once [the employer] has . . . provided the reasons for its employment decisions,
without verifying whether that reason is a pretext for discrimination."
Id., at A32. The Commission also rejected petitioner's proposed balancing
test, explaining that "such an approach in the instant case . . . would
impair the Commission's ability to fully investigate this charge of discrimination."
Id., at A33. The Commission indicated that enforcement proceedings might
be necessary if a response was not forthcoming within 20 days. Ibid.
|||The University continued to withhold the tenure-review materials. The
Commission then applied to the United States District Court for the Eastern
District of Pennsylvania for enforcement of its subpoena. The court entered
a brief enforcement order. *fn1
Id., at A35.
|||The Court of Appeals for the Third Circuit affirmed the enforcement decision.
850 F.2d 969 (1988). *fn2 Relying
upon its earlier opinion in EEOC v. Franklin and Marshall College, 775 F.2d
110 (1985), cert. denied, 476 U.S. 1163 (1986), the court rejected petitioner's
claim that policy considerations and First Amendment principles of academic
freedom required the recognition of a qualified privilege or the adoption
of a balancing approach that would require the Commission to demonstrate
some particularized need, beyond a showing of relevance, to obtain peer
review materials. Because of what might be thought of as a conflict in approach
with the Seventh Circuit's decision in EEOC v. University of Notre Dame
du Lac, 715 F.2d 331, 337 (1983), and because of the importance of the issue,
we granted certiorari limited to the compelled-disclosure question. 488
U.S. 992 (1988), and amended, 490 U.S. 1015 (1989).
|||As it had done before the Commission, the District Court, and the Court
of Appeals, the University raises here essentially two claims. First, it
urges us to recognize a qualified common-law privilege against disclosure
of confidential peer review materials. Second, it asserts a First Amendment
right of "academic freedom" against wholesale disclosure of the
contested documents. With respect to each of the two claims, the remedy
petitioner seeks is the same: a requirement of a judicial finding of particularized
necessity of access, beyond a showing of mere relevance, before peer review
materials are disclosed to the Commission.
|||Petitioner's common-law privilege claim is grounded in Federal Rule of
Evidence 501. This provides in relevant part:
|||"Except as otherwise required by the Constitution . . . as provided
by Act of Congress or in rules prescribed by the Supreme Court . . ., the
privilege of a witness . . . shall be governed by the principles of the
common law as they may be interpreted by the courts of the United States
in the light of reason and experience."
|||The University asks us to invoke this provision to fashion a new privilege
that it claims is necessary to protect the integrity of the peer review
process, which in turn is central to the proper functioning of many colleges
and universities. These institutions are special, observes petitioner, because
they function as "centers of learning, innovation and discovery."
Brief for Petitioner filed June 23, 1989, p. 24 (hereinafter Brief for Petitioner).
|||We do not create and apply an evidentiary privilege unless it "promotes
sufficiently important interests to outweigh the need for probative evidence
. . . ." Trammel v. United States, 445 U.S. 40, 51 (1980). Inasmuch
as "testimonial exclusionary rules and privileges contravene the fundamental
principle that 'the public . . . has a right to every man's evidence,'"
id., at 50, quoting United States v. Bryan, 339 U.S. 323, 331 (1950), any
such privilege must "be strictly construed." 445 U.S., at 50.
|||Moreover, although Rule 501 manifests a congressional desire "not
to freeze the law of privilege" but rather to provide the courts with
flexibility to develop rules of privilege on a case-by-case basis, id.,
at 47, we are disinclined to exercise this authority expansively. We are
especially reluctant to recognize a privilege in an area where it appears
that Congress has considered the relevant competing concerns but has not
provided the privilege itself. Cf. Branzburg v. Hayes, 408 U.S. 665, 706
(1972). The balancing of conflicting interests of this type is particularly
a legislative function.
|||With all this in mind, we cannot accept the University's invitation to
create a new privilege against the disclosure of peer review materials.
We begin by noting that Congress, in extending Title VII to educational
institutional and in providing for broad EEOC subpoena powers, did not see
fit to create a privilege for peer review documents.
|||When Title VII was enacted originally in 1964, it exempted an "educational
institution with respect to the employment of individuals to perform work
connected with the educational activities of such institution." § 702,
78 Stat. 255. Eight years later, Congress eliminated that specific exemption
by enacting § 3 of the Equal Employment Opportunity Act of 1972, 86 Stat.
103. This extension of Title VII was Congress' considered response to the
widespread and compelling problem of invidious discrimination in educational
institutions. The House Report focused specifically on discrimination in
higher education, including the lack of access for women and minorities
to higher ranking (i. e., tenured) academic positions. See H. R. Rep. No.
92-238, pp. 19-20 (1971). Significantly, opponents of the extension claimed
that enforcement of Title VII would weaken institutions of higher education
by interfering with decisions to hire and promote faculty members. *fn3
Petitioner therefore cannot seriously contend that Congress was oblivious
to concerns of academic autonomy when it abandoned the exemption for educational
|||The effect of the elimination of this exemption was to expose tenure determinations
to the same enforcement procedures applicable to other employment decisions.
This Court previously has observed that Title VII "sets forth 'an integrated,
multistep enforcement procedure' that enables the Commission to detect and
remedy instances of discrimination." EEOC v. Shell Oil Co., 466 U.S.
54, 62 (1984), quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359
(1977). The Commission's enforcement responsibilities are triggered by the
filing of a specific sworn charge of discrimination. The Act obligates the
Commission to investigate a charge of discrimination to determine whether
there is "reasonable cause to believe that the charge is true."
42 U.S.C. § 2000e-5(b) (1982 ed.). If it finds no such reasonable cause,
the Commission is directed to dismiss the charge. If it does find reasonable
cause, the Commission shall "endeavor to eliminate alleged unlawful
employment practice by informal methods of conference, conciliation, and
persuasion." Ibid. If attempts at voluntary resolution fail, the Commission
may bring an action against the employer. § 2000e-5(f)(1). *fn4
|||To enable the Commission to make informed decisions at each stage of the
enforcement process, § 2000e-8(a) confers a broad right of access to relevant
|||"The Commission or its designated representative shall at all reasonable
times have access to, for the purposes of examination, and the right to
copy any evidence of any person being investigated . . . that relates to
unlawful employment practices covered by [the Act] and is relevant to the
charge under investigation."
|||If an employer refuses to provide this information voluntarily, the Act
authorizes the Commission to issue a subpoena and to seek an order enforcing
it. § 2000e-9 (incorporating 29 U.S.C. § 161).
|||On their face, §§ 2000e-8(a) and 2000e-9 do not carve out any special
privilege relating to peer review materials, despite the fact that Congress
undoubtedly was aware, when it extended Title VII's coverage, of the potential
burden that access to such material might create. Moreover, we have noted
previously that when a court is asked to enforce a Commission subpoena,
its responsibility is to "satisfy itself that the charge is valid and
that the material requested is 'relevant' to the charge . . . and more generally
to assess any contentions by the employer that the demand for information
is too indefinite or has been made for an illegitimate purpose." It
is not then to determine "whether the charge of discrimination is 'well
founded' or 'verifiable.'" EEOC v. Shell Oil Co., 466 U.S., at 72,
|||The University concedes that the information sought by the Commission
in this case passes the relevance test set forth in Shell Oil. Tr. of Oral
Arg. 6. Petitioner argues, nevertheless, that Title VII affirmatively grants
courts the discretion to require more than relevance in order to protect
tenure-review documents. Although petitioner recognizes that Title VII gives
the Commission broad "power to seek access to all evidence that may
be 'relevant to the charge under investigation,'" Brief for Petitioner
38 (emphasis added), it contends that Title VII's subpoena enforcement provisions
do not give the Commission an unqualified right to acquire such evidence.
Id., at 38-41. This interpretation simply cannot be reconciled with the
plain language of the text of § 2000e-8(a), which states that the Commission
" shall . . . have access" to "relevant" evidence (emphasis
added). The provision can be read only as giving the Commission a right
to obtain that evidence, not a mere license to seek it.
|||Although the text of the access provisions thus provides no privilege,
Congress did address situations in which an employer may have an interest
in the confidentiality of its records. The same § 2000e-8 which gives the
Commission access to any evidence relevant to its investigation also makes
it "unlawful for any officer or employee of the Commission to make
public in any manner whatever any information obtained by the Commission
pursuant to its authority under this section prior to the institution of
any proceeding" under the Act. A violation of this provision subjects
the employee to criminal penalties. Ibid. To be sure, the protection of
confidentiality that § 2000e-8(e) provides is less than complete. *fn5
But this, if anything, weakens petitioner's argument. Congress apparently
considered the issue of confidentiality, and it provided a modicum of protection.
Petitioner urges us to go further than Congress thought necessary to safeguard
that value, that is, to strike the balance differently from the one Congress
adopted. Petitioner, however, does not offer any persuasive justification
for that suggestion.
|||We readily agree with petitioner that universities and colleges play significant
roles in American society. Nor need we question, at this point, petitioner's
assertion that confidentiality is important to the proper functioning of
the peer review process under which many academic institutions operate.
The costs that ensue from disclosure, however, constitute only one side
of the balance. As Congress has recognized, the costs associated with racial
and sexual discrimination in institutions of higher learning are very substantial.
Few would deny that ferreting out this kind of invidious discrimination
is a great, if not compelling, governmental interest. Often, as even petitioner
seems to admit, see Reply Brief for Petitioner 15, disclosure of peer review
materials will be necessary in order for the Commission to determine whether
illegal discrimination has taken place. Indeed, if there is a "smoking
gun" to be found that demonstrates discrimination in tenure decisions,
it is likely to be tucked away in peer review files. The Court of Appeals
for the Third Circuit expressed it this way:
|||"Clearly, an alleged perpetrator of discrimination cannot be allowed
to pick and choose the evidence which may be necessary for an agency investigation.
There may be evidence of discriminatory intent and of pretext in the confidential
notes and memoranda which the seeks to protect. Likewise, confidential material
pertaining to other candidates for tenure in a similar time frame may demonstrate
that persons with lesser qualifications were granted tenure or that some
pattern of discrimination appears. . . . The peer review material itself
must be investigated to determine whether the evaluations are based in discrimination
and whether they are reflected in the tenure decision." EEOC v. Franklin
and Marshall College, 775 F.2d, at 116 (emphasis deleted).
|||Moreover, we agree with the EEOC that the adoption of a requirement that
the Commission demonstrate a "specific reason for disclosure,"
see Brief for Petitioner 46, beyond a showing of relevance, would place
a substantial litigation-producing obstacle in the way of the Commission's
efforts to investigate and remedy alleged discrimination. Cf. Branzburg
v. Hayes, 408 U.S., at 705-706. A university faced with a disclosure request
might well utilize the privilege in a way that frustrates the EEOC's mission.
We are reluctant to "place a potent weapon in the hands of employers
who have no interest in complying voluntarily with the Act, who wish instead
to delay as long as possible investigations by the EEOC." EEOC v. Shell
Oil Co., 466 U.S., at 81.
|||Acceptance of petitioner's claim would also lead to a wave of similar
privilege claims by other employers who play significant roles in furthering
speech and learning in society. What of writers, publishers, musicians,
lawyers? It surely is not unreasonable to believe, for example, that confidential
peer reviews play an important part in partnership determinations at some
law firms. We perceive no limiting principle in petitioner's argument. Accordingly,
we stand behind the breakwater Congress has established: unless specifically
provided otherwise in the statute, the EEOC may obtain "relevant"
evidence. Congress has made the choice. If it dislikes the result, it of
course may revise the statute.
|||Finally, we see nothing in our precedents that supports petitioner's claim.
In United States v. Nixon, 418 U.S. 683 (1974), upon which petitioner relies,
we recognized a qualified privilege for Presidential communications. It
is true that in fashioning this privilege we noted the importance of confidentiality
in certain contexts:
|||"Human experience teaches that those who expect public dissemination
of their remarks may well temper candor with a concern for appearances and
for their own interests to the detriment of the decisionmaking process."
Id., at 705.
|||But the privilege we recognized in Nixon was grounded in the separation
of powers between the Branches of the Federal Government. "The privilege
can be said to derive from the supremacy of each branch within its own assigned
area of constitutional duties. Certain powers and privileges flow from the
nature of enumerated powers; the protection of the confidentiality of Presidential
communications has similar constitutional underpinnings" Id., at 705-706
(footnote omitted). As we discuss below, petitioner's claim of privilege
lacks similar constitutional foundation.
|||In Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211 (1979),
the Court recognized the privileged nature of grand jury proceedings. We
noted there that the rule of secrecy dated back to the 17th century, was
imported into our federal common law, and was eventually codified in Federal
Rule of Criminal Procedure 6(e) as "an integral part of our criminal
Justice system." 441 U.S., at 218, n. 9. Similarly, in Clark v. United
States, 289 U.S. 1, 13 (1933), the Court recognized a privilege for the
votes and deliberations of a petit jury, noting that references to the privilege
"bear with them the implications of an immemorial tradition."
More recently, in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975),
we construed an exception to the Freedom of Information Act in which Congress
had incorporated a well-established privilege for deliberative intraagency
documents. A privilege for peer review materials has no similar historical
or statutory basis.
|||As noted above, petitioner characterizes its First Amendment claim as
one of "academic freedom." Petitioner begins its argument by focusing
our attention upon language in prior cases acknowledging the crucial role
universities play in the dissemination of ideas in our society and recognizing
"academic freedom" as a "special concern of the First Amendment."
Keyishian v. Board of Regents of University of New York, 385 U.S. 589, 603
(1967). In that case the Court said:
|||"Our Nation is deeply committed to safeguarding academic freedom,
which is of transcendent value to all of us and not merely to the teachers
concerned." See also Adler v. Board of Education of City of New York,
342 U.S. 485, 511 (1952) (academic freedom is central to "the pursuit
of truth which the First Amendment was designed to protect" (Douglas,
J., Dissenting)). Petitioner places special reliance on Justice Frankfurter's
opinion, Concurring in the result, in Sweezy v. New Hampshire, 354 U.S.
234, 263 (1957), where the Justice recognized that one of "four essential
freedoms" that a university possesses under the First Amendment is
the right to "determine for itself on academic grounds who may teach
" (emphasis added).
|||Petitioner contends that it exercises this right of determining "on
academic grounds who may teach" through the process of awarding tenure.
A tenure system, asserts petitioner, determines what the university will
look like over time. "In making tenure decisions, therefore, a university
is doing nothing less than shaping its own identity." Brief for Petitioner
|||Petitioner next maintains that the peer review process is the most important
element in the effective operation of a tenure system. A properly functioning
tenure system requires the faculty to obtain candid and detailed written
evaluations of the candidate's scholarship, both from the candidate's peers
at the university and from scholars at other institutions. These evaluations,
says petitioner, traditionally have been provided with express or implied
assurances of confidentiality. It is confidentiality that ensures candor
and enables an institution to make its tenure decisions on the basis of
valid academic criteria.
|||Building from these premises, petitioner claims that requiring the disclosure
of peer review evaluations on a finding of mere relevance will undermine
the existing process of awarding tenure, and therefore will result in a
significant infringement of petitioner's First Amendment right of academic
freedom. As more and more peer evaluations are disclosed to the EEOC and
become public, a "chilling effect" on candid evaluations and Discussions
of candidates will result. And as the quality of peer review evaluations
declines, tenure committees will no longer be able to rely on them. "This
will work to the detriment of universities, as less qualified persons achieve
tenure causing the quality of instruction and scholarship to decline."
Id., at 35. Compelling disclosure of materials "also will result in
divisiveness and tension, placing strain on faculty relations and impairing
the free interchange of ideas that is a hallmark of academic freedom."
Ibid. The prospect of these deleterious effects on American colleges and
universities, concludes petitioner, compels recognition of a First Amendment
|||In our view, petitioner's reliance on the so-called academic-freedom cases
is somewhat misplaced. In those cases government was attempting to control
or direct the content of the speech engaged in by the university or those
affiliated with it. In Sweezy, for example, the Court invalidated the conviction
of a person found in contempt for refusing to answer questions about the
content of a lecture he had delivered at a state university. Similarly,
in Keyishian, the Court invalidated a network of state laws that required
public employees, including teachers at state universities, to make certifications
with respect to their membership in the Communist Party. When, in those
cases, the Court spoke of "academic freedom" and the right to
determine on "academic grounds who may teach" the Court was speaking
in reaction to content-based regulation. See Sweezy v. New Hampshire, 354
U.S., at 250 (plurality opinion discussing problems that result from imposition
of a "strait jacket upon the intellectual leaders in our colleges and
universities"); Keyishian v. Board of Regents, 385 U.S., at 603 (discussing
dangers that are present when a "pall of orthodoxy" is cast "over
|||Fortunately, we need not define today the precise contours of any academic-freedom
right against governmental attempts to influence the content of academic
speech through the selection of faculty or by other means, *fn6
because petitioner does not allege that the Commission's subpoenas are intended
to or will in fact direct the content of university discourse toward or
away from particular subjects or points of view. Instead, as noted above,
petitioner claims that the "quality of instruction and scholarship
decline" as a result of the burden EEOC subpoenas place on the peer
|||Also, the cases upon which petitioner places emphasis involved direct
infringements on the asserted right to "determine for itself on academic
grounds who may teach." In Keyishian, for example, government was attempting
to substitute its teaching employment criteria for those already in place
at the academic institutions, directly and completely usurping the discretion
of each institution. In contrast, the EEOC subpoena at issue here effects
no such usurpation. The Commission is not providing criteria that petitioner
must use in selecting teachers. Nor is it preventing the University from
using any criteria it may wish to use, except those -- including race, sex,
and national origin -- that are proscribed under Title VII. *fn7
In keeping with Title VII's preservation of employers' remaining freedom
of choice, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality
opinion), courts have stressed the importance of avoiding second-guessing
of legitimate academic judgments. This Court itself has cautioned that "Judges
. . . asked to review the substance of a genuinely academic decision . .
. should show great respect for the faculty's professional judgment."
Regents of University of Michigan v. Ewing, 474 U.S. 214, 225 (1985). Nothing
we say today should be understood as a retreat from this principle of respect
for legitimate academic decisionmaking.
|||That the burden of which the University complains is neither content based
nor direct does not necessarily mean that petitioner has no valid First
Amendment claim. Rather, it means only that petitioner's claim does not
fit neatly within any right of academic freedom that could be derived from
the cases on which petitioner relies. In essence, petitioner asks us to
recognize an expanded right of academic freedom to protect confidential
peer review materials from disclosure. Although we are sensitive to the
effects that content-neutral government action may have on speech, see,
e. g., Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640, 647-648 (1981), and believe that burdens that are less than
direct may sometimes pose First Amendment concerns, see, e. g., NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449 (1958), we think the First Amendment
cannot be extended to embrace petitioner's claim.
|||First, by comparison with the cases in which we have found a cognizable
First Amendment claim, the infringement the University complains of is extremely
attenuated. To repeat, it argues that the First Amendment is infringed by
disclosure of peer review materials because disclosure undermines the confidentiality
which is central to the peer review process, and this in turn is central
to the tenure process, which in turn is the means by which petitioner seeks
to exercise its asserted academic-freedom right of choosing who will teach.
To verbalize the claim is to recognize how distant the burden is from the
|||Indeed, if the University's attenuated claim were accepted, many other
generally applicable laws might also be said to infringe the First Amendment.
In effect, petitioner says no more than that disclosure of peer review materials
makes it more difficult to acquire information regarding the "academic
grounds" on which petitioner wishes to base its tenure decisions. But
many laws make the exercise of First Amendment rights more difficult. For
example, a university cannot claim a First Amendment violation simply because
it may be subject to taxation or other government regulation, even though
such regulation might deprive the university of revenue it needs to bid
for professors who are contemplating working for other academic institutions
or in industry. We doubt that the peer review process is any more essential
in effectuating the right to determine "who may teach" than is
the availability of money. Cf. Buckley v. Valeo, 424 U.S. 1, 19 (1976) (discussing
how money is sometimes necessary to effectuate First Amendment rights).
|||In addition to being remote and attenuated, the injury to academic freedom
claimed by petitioner is also speculative. As the EEOC points out, confidentiality
is not the norm in all peer review systems. See, e. g., G. Bednash, The
Relationship Between Access and Selectivity in Tenure Review Outcomes (1989)
(unpublished Ph.D. dissertation, University of Maryland). Moreover, some
disclosure of peer evaluations would take place even if petitioner's "special
necessity" test were adopted. Thus, the "chilling effect"
petitioner fears is at most only incrementally worsened by the absence of
a privilege. Finally, we are not so ready as petitioner seems to be to assume
the worst about those in the academic community. Although it is possible
that some evaluators may become less candid as the possibility of disclosure
increases, others may simply ground their evaluations in specific examples
and illustrations in order to deflect potential claims of bias or unfairness.
Not all academics will hesitate to stand up and be counted when they evaluate
|||The case we decide today in many respects is similar to Branzburg v. Hayes
408 U.S. 665 (1972). In Branzburg, the Court rejected the notion that under
the First Amendment a reporter could not be required to appear or to testify
as to information obtained in confidence without a special showing that
the reporter's testimony was necessary. Petitioners there, like petitioner
here, claimed that requiring disclosure of information collected in confidence
would inhibit the free flow of information in contravention of First Amendment
principles. In the course of rejecting the First Amendment argument, this
Court noted that "the First Amendment does not invalidate every incidental
burdening of the press that may result from the enforcement of civil or
criminal statutes of general applicability." Id., at 682. We also indicated
a reluctance to recognize a constitutional privilege where it was "unclear
how often and to what extent informers are actually deterred from furnishing
information when newsmen are forced to testify before a grand jury."
Id., at 693. See also Herbert v. Lando, 441 U.S. 153, 174 (1979). We were
unwilling then, as we are today, "to embark the judiciary on a long
and difficult journey to . . . an uncertain destination." 408 U.S.,
at 703. *fn8
|||Because we conclude that the EEOC subpoena process does not infringe any
First Amendment right enjoyed by petitioner, the EEOC need not demonstrate
any special justification to sustain the constitutionality of Title VII
as applied to tenure peer review materials in general or to the subpoena
involved in this case. Accordingly, we need not address the Commission's
alternative argument that any infringement of petitioner's First Amendment
rights is permissible because of the substantial relation between the Commission's
request and the overriding and compelling state interest in eradicating
invidious discrimination. *fn9
|||The judgment of the Court of Appeals is affirmed.
|||It is so ordered.
|||* Briefs of amici curiae urging reversal were filed for the American Association
of University Professors by William W. Van Alstyne, Ann H. Franke, and Martha
A. Toll; for the President and Fellows of Harvard College by Allan A. Ryan,
Jr., and Daniel Steiner; for Stanford University et al. by Steven L. Mayer,
Iris Brest, Susan K. Hoerger, and Thomas H. Wright, Jr.; and for the American
Council on Education by Sheldon Elliot Steinbach.
|||Susan Deller Ross, R. Bruce Keiner, Jr., and Sarah E. Burns filed a brief
for the Now Legal Defense and Education Fund et al. as amici curiae urging
|||*fn1 Three days before the stated
20-day period expired, petitioner brought suit against the EEOC in the United
States District Court for the District of Columbia seeking declaratory and
injunctive relief and an order quashing the subpoena. App. 4. The Pennsylvania
District Court declined to follow its controlling court's announced "first-filed"
rule, which counsels the stay or dismissal of an action that is duplicative
of a previously filed suit in another federal court. See Crosley Corp. v.
Hazeltine Corp., 122 F.2d 925, 929 (CA3 1941), cert. denied, 315 U.S. 813
(1942); Compagnie des Bauxites de Guinea v. Insurance Co. of North America,
651 F.2d 877, 887, n. 10 (CA3 1981), cert. denied sub nom. Compagnie des
Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd., 457 U.S. 1105 (1982).
This declination, however, was upheld by the Third Circuit. See 850 F.2d
969, 972 (1988). Since the applicability of the "first-filed"
rule to the facts of this case is not a question on which we granted certiorari,
we do not address it.
|||*fn2 The Court of Appeals did
not rule on the question whether the Commission's subpoena permits petitioner
to engage in any redaction of the disputed records before producing them,
because the District Court had not fully considered that issue. The Third
Circuit therefore ordered that the case be remanded for further consideration
of possible redaction. See id., at 982.
|||*fn3 See, e. g., 118 Cong. Rec.
311 (1972) (remarks of Sen. Ervin); id., at 946 (remarks of Sen. Allen);
id., at 4919 (remarks of Sen. Ervin).
|||*fn4 Similarly, the charging
party may bring an action after it obtains a "right-to-sue" letter
from the Commission. § 2000e-5(f)(1).
|||*fn5 The prohibition on Commission
disclosure does not apply, for example, to the charging party. See EEOC
v. Associated Dry Goods Corp., 449 U.S. 590, 598-604 (1981).
|||*fn6 Obvious First Amendment
problems would arise where government attempts to direct the content of
speech at private universities. Such content-based regulation of private
speech traditionally has carried with it a heavy burden of justification.
See, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 98-99 (1972).
Where, as was the situation in the academic-freedom cases, government attempts
to direct the content of speech at public educational institutions, complicated
First Amendment issues are presented because government is simultaneously
both speaker and regulator. Cf. Meese v. Keene, 481 U.S. 465, 484, n. 18
(1987) (citing Block v. Meese, 253 U.S. App. D.C. 317, 327-328, 793 F.2d
1303, 1313-1314 (1986)). See generally, M. Yudof, When Government Speaks
|||*fn7 Petitioner does not argue
in this case that race, sex, and national origin constitute "academic
grounds" for the purposes of its claimed First Amendment right to academic
freedom. Cf. Regents of University of California v. Bakke, 438 U.S. 265,
312-313 (1978) (opinion of Powell, J.).
|||*fn8 In Branzburg we recognized
that the bad-faith exercise of grand jury powers might raise First Amendment
concerns. 408 U.S., at 707. The same is true of EEOC subpoena powers. See
EEOC v. Shell Oil Co., 466 U.S. 54, 72, n. 26 (1984). There is no allegation
or indication of any such abuse by the Commission in this case.
|||*fn9 We also do not consider
the question, not passed upon by the Court of Appeals, whether the District
Court's enforcement of the Commission's subpoena will allow petitioner to
redact information from the contested materials before disclosing them.
See n. 2, (supra) .
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