Vanderbilt Law Review


Ayna J. Partain

First Page



Courts have long honored the fundamental principle that the right to full and fair litigation assumes the unobstructed availability of evidence.' When the divulgence of information in court threatens interests or relationships of sufficient social importance,however, courts have recognized a compelling justification for sacrificing the free flow of evidence and have created rules of privilege. Since 1972, when Congress extended Title VII of the Civil Rights Act of 19641 to academic institutions, colleges and universities increasingly have faced broad discovery requests for confidential personnel files by plaintiffs alleging that discriminatory factors such as sex, race, or age played an impermissible role in the institution's employment decisions.' In response, some institutions have asked the courts, with mixed success, to recognize a new privilege for personnel files and tenure review committee materials based upon the fundamentals of academic freedom.

This Recent Development considers whether the federal courts should recognize a qualified privilege for the discovery of peer review materials in litigation brought by university educators denied employment, tenure, or promotion based on what they allege are impermissible discriminatory grounds. Part II examines the underlying rationale for establishing an academic freedom privilege, focusing on the Constitution, statutes, judicial rules, and the common law as possible bases of support. Part II also examines plaintiffs' ability to rebut any presumption of privilege recognized by the court. Part III discusses the inconsistencies in recent judicial responses to the disputed privilege. Part IV argues that the existing split among the federal circuits provides inadequate guidance for the lower courts faced with claims of privilege and suggests a two-step analysis to determine in each case whether a privilege should be recognized. Part V concludes that federal courts should adopt a qualified privilege based upon academic freedom to require the courts to balance the conflicting interests of academic freedom and freedom from discrimination.