On appeal from the Division on Civil Rights.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Gaynor, J.A.D.
This interlocutory appeal presents the novel question of whether an academic freedom privilege should be formulated to protect the confidentiality of material contained in promotion packets of members of the faculty of Rutgers, The State University.
By leave granted, Rutgers appeals from the denial of its motion to preclude the use of such material in an administrative proceeding wherein the Division of Civil Rights (DCR) found that probable cause existed for the claim that a faculty member had been denied a promotion from assistant professor to associate professor because of sex discrimination.*fn1 In permitting the evidentiary use of this confidential material, under appropriate protective restrictions, the Administrative Law Judge rejected the asserted privilege and also concluded that such use was not precluded by the terms of a collective bargaining agreement as
incorporated in complainant's employment contract. We agree and affirm.
Dr. Ruth Dixon (Dixon), a black female, was hired by Rutgers in 1971 as an assistant professor and chair of the Educational Opportunity Fund Instructional Department at the Camden campus of the College of Arts and Sciences. After the completion of her fifth year of employment, Dixon was notified that she would automatically be evaluated for tenure and promotion to associate professor during the 1976-1977 academic year. If tenure were not granted, she would receive a one-year terminal contract as a lecturer. Pursuant to university procedures, Dixon was evaluated by the Ad Hoc Committee, the Appointment and Promotions Committee and the Dean of the college and was unanimously recommended for tenure and promotion. Her promotion packet was then forwarded to the Promotion Review Committee (PRC). This committee, appointed by the university president, reviews all evidence previously considered in connection with a proposed promotion and granting of tenure, including the confidential letters of recommendation from sources outside the university, and then submits its recommendations to the president. The PRC declined to recommend Dixon for promotion and tenure because of "insufficient evidence of distinction in teaching, creativity and research." When reminded that Dixon had no teaching responsibilities by which distinction could be evidenced, the committee reconsidered her application for promotion and concluded that she showed "insufficient evidence of research and scholarly activities expected of a faculty member in Academic Foundations" to warrant a recommendation for promotion and tenure.
The day before Dixon's review by the PRC, the committee considered the promotion packets of Henry Eng (Eng) and William Jones (Jones), faculty members in Academic Foundation Departments on two other campuses. Eng, an assistant professor at Livingston, was recommended for tenure and Jones, an assistant professor at Newark, was recommended for tenure and promotion. The recommendations of the PRC concerning
Dixon, Eng and Jones were thereafter adopted by the Rutgers' Board of Governors.
Dixon's rejection for promotion and tenure prompted her to file a complaint with the DCR claiming discrimination based on her race and sex. Following an investigation, which included an examination of the promotion packets of Dixon, Eng and Jones under a protective stipulation, the DCR found probable cause to credit the allegations of sex discrimination in the decision denying tenure and promotion to Dixon. However, noting that Eng was an oriental and Jones was a black, it found no support for the claim of racial discrimination. Prior to the issuance of these findings, Dixon had been awarded retroactive tenure by the Board of Governors.*fn2 The matter was then transmitted to the Office of Administrative Law for prosecution by the attorney general.
In denying Rutgers' prehearing motion to preclude the admission of the promotion packets, the ALJ concluded that neither the stipulation between counsel when the files were turned over to the DCR nor the terms of a collectively negotiated agreement between Rutgers and the Rutgers Council of the American Association of University Professors precluded the admissibility of the subject files. Further, that the confidentiality ascribed to the contents of the packets did not require their exclusion as evidence, particularly in view of their availability to Rutgers to demonstrate the claimed nondiscriminating reason for rejecting Dixon's application for promotion. The admission of the material also was deemed necessary because of its relevancy to a prima facie showing of unlawful discrimination and the unavailability from other sources ...