Preventing Unnecessary Intrusions on University Autonomy: A Proposed Academic Freedom Privilege

Abstract

Lawsuits pitting faculty members against universities and colleges' in disputes over hiring, promotion, tenure, and other employmentrelated issues have increased dramatically within the past fifteen years. 2 The volume of federal litigation, in particular, has escalated rapidly following the extension of the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964 to academic institutions in 19723 and the Supreme Court's revitalization of the private civil remedies under the Civil Rights Acts of 1866 and 1871.1 In faculty lawsuits, plaintiffs often seek access under the liberal federal discovery rules to sensitive university employment records, including confidential faculty evaluations 5 and even secret votes on tenure and promotion applications. 6 Efforts to compel disclosure of this information raise the issue of whether a university may protect confidentiality by claiming an evidentiary privilege.The question involves a clash of values-academic freedom and appointing the best professors versus the need for full disclosure in decisionmaking and litigation-and does not lend itself to 1.The term "university" as used in this Comment also refers to colleges.2. Yurko, Judicial Recognition fAcademic Collective Interests: A New Approach to Faculty Title VII Litigation, 60 B.U. L. REv.473, 522 n.245 (1980).A major cause of the increase is the shrinking academic job market that has heightened competition for university positions and given faculty members added economic incentive to challenge unfavorable employment decisions.Id