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
- 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.
- 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.