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17 J.C. & U.L. 329 (1990-1991)
Shifting Meanings of Academic Freedom: An Analysis of University of Pennsylvania v. EEOC

handle is hein.journals/jcolunly17 and id is 363 raw text is: Shifting Meanings of Academic
Freedom: An Analysis of University of
Pennsylvania v. EEOC
LYNDA E. FROST*
INTRODUCTION
Tenure is an important achievement in a scholar's career. Typically,
after years of work at a university,' a professor is evaluated by a
committee of peers that formulates a recommendation regarding tenure.2
The peer-review process involves subjective evaluation of a tenure
candidate's work.3 Traditionally, universities have relied heavily on
confidential peer review to facilitate tenure decisions.4 Discussion and
evaluation of the candidate's qualifications usually are confidential to
encourage open discussion of the candidate's performance.5 Many uni-
versity scholars and administrators contend that confidentiality of peer-
review documents is essential to the integrity of the peer-review proc-
ess.6
In recent years, however, Title VII discrimination proceedings have
threatened the confidentiality of peer-review documents. When the
Equal Employment Opportunity Commission (EEOC) began hearing
university-employment discrimination cases in 1972,7 its mandate to
* Iowa Fellow, College of Education, University of Iowa. B.A., Amherst College,
1983; M.Ed., Lesley College, 1986; J.D. Candidate, University of Iowa, 1991; Ph.D.
Candidate, University of Iowa, 1992. This Case Comment earned Ms. Frost the 1990
Donald L. Reidhaar Prize for the best article by a law student on a topic relating to legal
issues in higher education.
1. In this Comment, university and college are used synonymously.
2. See generally J. MCCARThY, L LADIMER, & J. SIREFMAN, MANAGING FACULTY DISPUTEs
4-9 (1984) (describing peer review process and issue of confidentiality).
3. Id. at 5.
4. [T]he peer review process is essential to the very lifeblood and heartbeat of
academic excellence and plays a most vital role in the proper and efficient
functioning of our nation's colleges and universities. The process of peer
evaluation has evolved as the best and most reliable method of promoting
academic excellence and freedom ....
EEOC v. University of Notre Dame, 715 F.2d 331, 336 (7th Cir. 1983); see also Johnson
v. University of Pittsburgh, 435 F. Supp. 1328, 1341 (W.D. Pa. 1977) (ad hoc committee
conclusions crucial in tenure decisions because of large number of cases Chancellor must
consider).
5. J. MCCARTHY, I. LADIMER & J. SIREFMAN, supra note 2, at 8.
6. Some courts have arrived at the same conclusion. See EEOC v. University of
Notre Dame, 715 F.2d at 336 ([lIt is evident that confidentiality is absolutely essential
to the proper functioning of the faculty tenure review process.).
7. In 1972, Title VII was expanded to cover educational institutions. Equal Employ-
ment Opportunity Act of 1972, Pub. L. No. 92-261, § 3, 86 Stat. 103 (1972) (codified at
42 U.S.C. § 2000e-1 (1988)).

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