Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Misc. No. 84-0675)
Before: ALDISERT, Chief Judge, STAPLETON and MANSMANN, Circuit Judges
This court must decide whether the district court erred in requiring Franklin and Marshall College ("College") to comply with a subpoena duces tecum issued by the Equal Employment Opportunity Commission ("EEOC") which compels disclosure of confidential peer review material. The College and the amici curiae urge adoption of a qualified academic peer review privilege which, if properly applied to the facts at issue, would protect, they argue, the confidential material from the agency's subpoena. After careful consideration of all matters raised by brief and in oral arguments, we decline to adopt the proffered qualified academic peer review privilege. Because we find that the material sought by the EEOC is relevant to its investigation, the order compelling compliance with the subpoena will be affirmed.
This subpoena enforcement action arises out of the EEOC's investigation of a charge of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e-17, filed by Gerard Montbertrand, a former assistant professor who was denied tenure, against the College. Professor Montbertrand was hired on July 1, 1977 as a member of the College's French Department. He was assigned primarily upper level French courses, although the College asserts that, due to the Department's limited size (4 professors), he was expected to be able to teach lower level French language courses. In the Fall of 1980, Professor Montbertrand was reviewed for tenure by the Professional Standards Committee. The committee is composed of the Dean of the College and five faculty-elected members. It performs all tenure reviews at the College. The Chairperson of the French and Italian Departments did inform the committee of evaluations recommending Professor Montbertrand for tenure. The Professional Standards Committee, however, recommended against awarding tenure to Montbertrand. That recommendation was accepted by the Dean and by the President of the College.
After Professor Montbertrand was informed of the denial of his tenure, he requested a written statement of the reasons. In a letter from the President of the College dated January 21, 1981, Montbertrand was informed that the minutes of the Professional Standards Committee stated that "tenure was not recommended because deficiencies in the areas of scholarship and general contributions were not sufficiently offset by performance in other areas." Appendix, at 101a.
Professor Montbertrand requested reconsideration of the tenure decision. The Professional Standards Committee reconsidered its decision in light of additional information submitted by Montbertrand and by others. The committee reaffirmed its earlier recommendation to deny tenure. That recommendation was again accepted by the Dean and by the President of the College.
Professor Montbertrand petitioned the College's Grievance Committee for review of the tenure decision, alleging denial of academic freedom and academic due process. After reviewing the allegations and finding no merit in the claims, the Grievance Committee dismissed the petition in May of 1981.
In June of 1981, Professor Montbertrand filed a charge of discrimination with the EEOC alleging discrimination based on his French national origin. In the course of its investigation, the EEOC issued the subpoena duces tecum which is the subject of this action. The subpoena required that the College:
1. For each individual granted or denied tenure during the period November 7, 1977 to the present, provide the following records or documents:
a) Tenure Recommendation forms.
b) COTE form results [analyzing student evaluations],
e) Annual evaluation forms, including third year review,
f) Governance evaluation forms,
g) Publication information and evaluations by outside experts,
i) Information regarding academic advising,
j) All notes, letters, memoranda or other documents considered during each tenure case, including curricula vitae,
k) Recommendations of Professional Standards Committee in each tenure case, and
l) Actions taken by the President in each tenure case.
2. Produce and make available for inspection all notes, letter, memoranda or other documents generated by each Professional Standards Committee member, as part of his/her involvement in Charging Party's ...