Hiding Behind Academic Freedom
The principle of academic freedom is indispensable to a free and civilized society. So, too, is the notion that employment and professional advancement ought not to be limited by racial, ethnic, sexual or religious bias. The U.S. Supreme Court correctly balanced those two principles Tuesday, when it unanimously ruled that colleges and universities may not invoke academic freedom to shield their tenure-granting procedures from scrutiny by the federal government’s Equal Employment Opportunity Commission.
The case at issue involved a woman professor of Chinese-American descent, Rosalie Tung, who in 1985 was denied tenure at the University of Pennsylvania’s prestigious Wharton School of Business. Tung, who believed her qualifications were equal to those of five male colleagues who recently had been granted tenure, filed a complaint with the federal authorities under Title VII of the Civil Rights Act. However, when the employment commission sought to examine the confidential peer review evaluations on which the decisions regarding Tung and the five men had been based, the university refused to turn them over. It argued that academic freedom would be compromised if the confidentiality of the tenure process were breached. The university did not, however, argue that the privilege it sought was absolute. Rather it said that the court ought to find that the First Amendment and the federal rules of evidence required that the government demonstrate its special need for the files in court.
The high court, however, rejected all these claims out of hand. In its unanimous opinion, Justice Harry A. Blackmun drew a careful distinction between academic speech--whose protection under the First Amendment he reaffirmed--and a school’s personnel policies, which he said must be open to the same review as any other business. Accepting the university’s claim, Blackmun wrote, would “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 is worth noting, for the record, that Tung, with whose complaint the commission now can proceed, has been granted tenure at the University of Wisconsin, where she is Wisconsin Distinguished Professor and director of the International Business Center.
