## Facts

- A Wharton School associate professor, Rosalie Tung, was denied tenure and filed a Title VII charge alleging discrimination based on race, sex, and national origin.
- Tung identified five male faculty members as having received more favorable treatment in tenure decisions.
- During its investigation, the EEOC issued a subpoena seeking Tung’s tenure-review file and the tenure files of the five identified male faculty members.
- The University of Pennsylvania refused to produce certain documents it characterized as confidential peer review materials, asserting that disclosure would breach confidentiality promises, chill evaluations, and impair academic freedom.
- The EEOC denied the University’s request to modify the subpoena and sought judicial enforcement.

## Issues

1. Whether federal common law recognizes a special privilege shielding confidential academic peer review materials from disclosure to the EEOC absent a showing of particularized need beyond relevance.
2. Whether the First Amendment concept of academic freedom requires a heightened-need or balancing test before the EEOC may obtain relevant peer review materials in a Title VII investigation.

## Decision

- The Supreme Court unanimously affirmed enforcement of the EEOC subpoena.
- The Court held that a university does not have a special privilege requiring a judicial finding of particularized necessity beyond a showing of relevance before peer review materials pertinent to tenure-discrimination charges are disclosed to the EEOC.
- The Court rejected both the asserted common-law privilege and the First Amendment academic-freedom objection.

## Legal Principles

- Under Title VII, the EEOC has broad authority to obtain evidence relevant to a charge under investigation, and courts generally enforce subpoenas seeking relevant materials.
- Under Federal Rule of Evidence 501, federal courts recognize privileges cautiously; privileges are disfavored because they withhold relevant evidence from factfinding.
- When Congress has legislated extensively in an area and did not create a privilege (including when extending Title VII to educational institutions), courts are reluctant to create an additional, extra-statutory privilege.
- Statutory confidentiality protections for EEOC investigations (including limits on public disclosure by EEOC employees) may address confidentiality interests without creating an evidentiary privilege.
- Compelled production of relevant peer review materials to investigate alleged discrimination does not, without more, violate the First Amendment or require a special constitutional balancing test, where the government is not regulating academic content but investigating discrimination.

## Conclusion

The Court enforced the EEOC subpoena and held that neither federal common law nor the First Amendment creates a special privilege for universities to withhold relevant tenure peer review materials; the EEOC need only satisfy Title VII’s relevance standard to obtain such documents during an investigation.


University of Pennsylvania v. Equal Emp. Opportunity Comm'n, 493 U.S. 182 (1990)