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Law School Case Brief

Univ. of Pa. v. EEOC - 493 U.S. 182, 110 S. Ct. 577 (1990)


The court does not create and apply an evidentiary privilege unless it promotes sufficiently important interests to outweigh the need for probative evidence. Inasmuch as testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man's evidence, any such privilege must "be strictly construed." 


After petitioner University of Pennsylvania ("University") denied tenure to associate professor Rosalie Tung, she filed a charge with the 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 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. The University 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 a federal district court. On appeal, the United States Court of Appeals for the Third Circuit affirmed, rejecting the University'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.


Did the University 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 were disclosed to the EEOC?




The Supreme Court of the United States found no special privilege, grounded in common law or the First Amendment, against disclosure of relevant documents in tenure discrimination cases. The Court refused to create a new privilege under Fed. R. Evid. 501 where 42 U.S.C.S. § 2000e-8(a) gave the EEOC an unqualified right to acquire relevant evidence, peer review materials were necessary to determine whether illegal discrimination took place, and precedent did not support the privilege. The Court found that University's claim was not supported by the First Amendment right to "academic freedom" because the EEOC was not directing the content of the University's speech, or providing criteria that the University had to use in selecting teachers, and the injury complained of was attenuated and speculative.

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