UNIVERSITY OF PENNSYLVANIA, PETITIONER V. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION No. 88-493 In the Supreme Court of the United States October Term, 1989 On Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the Respondent TABLE OF CONTENTS Opinions below Jurisdiction Question Presented Statutory provisions involved Statement Summary of argument Argument: I. The Commission must have access to tenure review materials in order to perform its statutory mandate with respect to claims of discrimination in higher education II. Title VII cannot properly be construed to permit a court to balance the Commission's need for information relevant to a sworn charge of unlawful discrimination against an employer's asserted interest in confidentiality A. The language and structure of the statute foreclose any qualified privilege for tenure review materials B. The legislative history confirms that Title VII remedies apply evenhandedly to institutions of higher education no less than to other employers C. The principle that statutes should be interpreted to avoid serious constitutional issues does not support petitioner's claim III. Title VII's subpoena enforcement provisions are constitutional as applied to tenure review materials A. Enforcement of the Act's substantive prohibition on invidious discrimination involves no infringement on academic freedom B. The Commission's subpoenas do not burden the freedom of universities to select the members of their faculties on academic grounds C. There is a substantial relation between a request for information relevant to a sworn charge of discrimination and the compelling national interest in the elimination of discrimination from institutions of higher education D. Petitioner's qualified privilege would seriously hamper and delay enforcement of Title VII IV. There is no common law privilege protecting t6enure review materials relevant to an EEOC investigation Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A27) is reported at 850 F.2d 969. The orders of the district court (Pet. App. A34-A35) are unreported. The determination of the Equal Employment Opportunity Commission denying petitioner's application for modification of the Commission's subpoena (Pet. App. A29-A33) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 23, 1988. A petition for rehearing was denied on August 11, 1988 (Pet. App. A28). The petition for a writ of certiorari was filed on September 19, 1988, and was granted on December 12, 1988, limited to the second question stated in the petition. On April 7, 1989, the Court amended its prior order and granted review limited to the first question stated in the petition. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of Sections 706(b), 709(a), and 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(b), 2000e-8(a), 2000e-9, and of Section 11 of the National Labor Relations Act, 29 U.S.C. 161, which is incorporated by reference in 42 U.S.C. 2000e-9, are reproduced in an appendix to respondent's brief in opposition (at 1a-3a). QUESTION PRESENTED Whether Title VII of the Civil Rights Act of 1964 requires enforcement of an EEOC subpoena seeking tenure review materials relevant to a sworn charge that a university has intentionally discriminated against a candidate for tenure on the basis of race, sex, or national origin and, if so, whether enforcement of the subpoena violates the First Amendment. STATEMENT 1. After being recommended for tenure by a majority of the members of her department, Rosalie Tung, an Associate Professor in the Management Department of the Wharton School, was denied tenure by a vote of petitioner's Personnel Committee. In August 1985, she filed a sworn charge of discrimination with the Equal Employment Opportunity Commission. J.A. 23-26. As subsequently amended, the charge alleged that Tung had been the victim of discrimination on the basis of race, sex, and national origin. J.A. 27-28. In her charge, Tung stated that her Department Chairman had sexually harassed her and, after she insisted that their relationship remain professional, had submitted a negative letter to the Personnel Committee. J.A. 28-29. The charge also alleged that Tung's qualifications were equal to or better than those of five named male faculty members who had received more favorable treatment. J.A. 29. Tung alleged that she had been given no reason for the decision to deny her tenure, but had discovered that the Personnel Committee had attempted to justify its decision "on the ground that the Wharton School is not interested in China-related research." Ibid. This explanation, her charge alleged, was a pretext for discrimination -- "simply their way of saying they do not want a Chinese-American, Oriental, woman in their school." Ibid. The EEOC began an investigation into Tung's charge, and requested relevant information from petitioner. When petitioner refused to provide some of that information, the Commission's District Director issued a subpoena seeking, inter alia, Tung's tenure file and the tenure files of the five faculty members identified in Tung's charge. J.A. 21-22. Petitioner refused to produce some of the documents responsive to these specifications. It applied to the Commission for modification of the subpoena to exclude what it termed "confidential peer review information": specifically, (i) confidential letters written by Tung's evaluators; (ii) the Department Chairman's letter of evaluation; (iii) documents reflecting the internal deliberations of faculty committees considering applications for tenure, including the Department Evaluation Report summarizing the deliberations of the Management Department and certain members of that Department on Tung's application for tenure; and (iv) comparable portions of the tenure review files of the male faculty members referred to in the charge. C.A. J.A. 5, 8-9. Petitioner urged the Commission to "adopt a balancing approach reflecting the constitutional and societal interest inherent in the peer review process" and to resort to "all feasible methods to minimize the intrusive effects of its investigations (i.e., exhaustion of other discovery methods, redaction, etc.)." C.A. J.A. 9. 2. The Commission denied petitioner's application. Pet. App. A29-A33. The Commission concluded that the documents were "needed in order to make a determination on the allegations of employment discrimination made by Ms. Tung in her charge" -- i.e., "whether Ms. Tung was treated differently than those who received tenure." Id. at A30. The Commission also found that "(t)here has not been enough data supplied in order for the Commission to determine whether there (was) reasonable cause" to believe that Tung's charge of discrimination was true. Id. at A31. The Commission rejected the contention that a letter setting forth the Personnel Committee's reasons for denying Tung tenure, which was prepared after her charge was filed, was sufficient for disposition of the charge. See C.A. J.A. 7. /1/ "The Commission would fall short of its obligation" to investigate charges of discrimination, it stated, "if it stopped its investigation once (an employer) has * * * provided the reasons for its employment decisions, without verifying whether that reason is a pretext for discrimination." Pet. App. A32. Finally, the Commission rejected petitioner's proposed balancing test, explaining that "such an approach in the instant case * * * would impair the Commission's ability to fully investigate this charge of discrimination." Pet. App. A33. The Commission noted that in EEOC v. Franklin & Marshall College, 775 F.2d 110 (1985), cert. denied, 476 U.S. 1163 (1986), the Third Circuit had found "nothing in the legislative background of Title VII, nor any other policy reasons, to support (the) contention that tenure decisions should be treated any differently from any other employment decisions, notwithstanding principles of academic freedom." Pet. App. A31. The Commission advised petitioner that it would initiate subpoena enforcement proceedings in the district court unless petitioner complied with the subpoena within 20 days. /2/ 3. Petitioner continued to withhold the responsive tenure review materials, and the Commission applied to the United States District Court for the Eastern District of Pennsylvania for enforcement of its subpoena. J.A. 15-30. That court entered a brief order enforcing the Commission's subpoena. Pet. App. A35. 4. Relying on its decision in Franklin & Marshall, the court of appeals affirmed. Pet. App. A1-A27. The court explained that in Franklin & Marshall it had declined to adopt a qualified privilege or a balancing approach to Commission subpoenas, because "Congress delivered a 'clear mandate' subjecting academic institutions to the express requirements of Title VII." Id. at A10. The court also incorporated Franklin & Marshall's discussion of the relevance of tenure review materials to claims of discrimination and the importance of protecting the Commission's unencumbered access to such materials (id. at A10-A11 (quoting 775 F.2d at 116)): (A)n alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation. There may be evidence of discriminatory intent and of pretext in the confidential notes and memorand(a) which the (college) seeks to protect. Likewise, confidential material pertaining to other candidates for tenure in a similar time frame may demonstrate that persons with lesser qualifications were granted tenure or that some pattern of discrimination appears . . . . (T)he peer review material itself must be investigated to determine whether the evaluations are based in discrimination and whether they are reflected in the tenure decision. The court of appeals remanded for consideration of whether petitioner should be allowed to delete names and other identifying information from the disputed records before producing them. Pet. App. A26-A27. With that exception, the court affirmed the district court's order enforcing the EEOC's subpoena. Id. at A27. /3/ SUMMARY OF ARGUMENT I. Tenure is among the "terms, conditions, or privileges of employment" (42 U.S.C. 2000e-2(a)) that cannot be withheld on the basis of race, sex, or national origin. Indeed, rigorous enforcement of Title VII in this context is of particular importance. Discriminatory tenure decisions severely affect the careers of the faculty members involved, and their effects are long-term. In 1972, acting on evidence that discrimination was widespread in educational institutions at all levels, Congress amended Title VII to eliminate that Act's exemption for educational institutions. The legislative history reflects Congress's concern with discriminatory obstacles to attaining higher academic ranks on university faculties and with the importance of subjecting colleges and universities to the same standards applicable to other employers. With the passage of that legislation, Congress exposed colleges and universities to the same "integrated, multistep enforcement procedure" that applies to other employers. Under that procedure, the Commission is responsible for investigating charges of discrimination, attempting conciliation when it finds reasonable cause to believe that a charge is true, and bringing suit if conciliation fails. To enable the Commission to discharge its responsibilities, Section 709(a) of the Act, 42 U.S.C. 2000e-8(a), gives the Commission a right of access to "any evidence of any person being investigated" that is "relevant to the charge under investigation." That Act also authorizes the Commission to issue and seek enforcement of subpoenas for such evidence. Unencumbered access to tenure review materials is essential to effective enforcement of Title VII with respect to tenure determinations. To assess whether there is reasonable cause supporting a charge, the Commission must have access to all information on which decisionmakers have relied and materials reflecting deliberations on the applicant's qualifications at various stages of the tenure review process. These materials permit the EEOC to consider, among other things, whether an unfavorable tenure decision has been influenced by stereotypes, whether the institution has departed from its own standards, whether the charging party was treated differently than other comparable candidates, and whether the stated grounds for a decision are pretextual. By their own account, petitioner and its amici rely heavily on peer reviews in making their employment decision; petitioner's proposed peer review privilege would extend to these and other documents reflecting the decisionmaking process that leads to a denial of tenure. To discharge its responsibilities under the Act, the Commission must have the same access to those documents as to comparable materials generated by other employers. II. Title VII cannot properly be construed to embody a qualified privilege for tenure review materials. Section 709(a) of that Act, 42 U.S.C. 2000e-8(a), gives the Commission a right of access to "any evidence of any person being investigated * * * that relates to unlawful employment practices covered by (the Act) and is relevant to the charge under investigation." The subpoena enforcement provisions that Title VII incorporates from Section 11 of the National Labor Relations Act, 29 U.S.C. 161, can only be read to provide legal process to enforce that right. Moreover, the legislative history of the statute shows that when Congress eliminated the exemption for educational institutions in 1972, it made clear its intention to extend the Act's remedies to colleges and universities as they apply to other employers. The language and legislative history of the statute leave no room for application of the principle that statutes should be construed, if fairly possible, to avoid serious constitutional issues. III. There is also no merit to petitioner's argument that the First Amendment requires recognition of a qualified privilege for tenure review materials. Title VII does not interfere with the freedom of a university to determine on academic grounds who may teach. Academic freedom does not protect universities from complying with subpoenas for information relevant to a charge that they have discriminated against a candidate for tenure. Judged by reference to this Court's cases, compliance with such a subpoena does not involve the kind of significant encroachment upon important and traditional aspects of individual freedom for which the First Amendment might require a showing of special justification. Even if a subpoena for tenure review materials interfered with protected activity, there would be a constitutionally sufficient justification for requiring compliance. The elimination of invidious discrimination from employment is a compelling national interest of the highest priority. There is a substantial relation between that goal and enforcement of subpoenas seeking evidence relevant to a sworn charge of discrimination. On the facts of this case, it is clear that the Commission's subpoena was issued for a proper purpose and that it seeks evidence relevant to Tung's charge of discrimination. The First Amendment requires nothing more. Finally, recognition of a qualified privilege that made enforcement of the Commission's subpoenas contingent on a showing, "based on a variety of factors," that the Commission has a "specific reason for disclosure that 'outweighs' the university's interest in confidentiality" (Pet. Br. 45-46) would seriously hobble enforcement of Title VII in the context of tenure determinations. IV. There is no common law privilege for tenure review materials. Petitioner's argument for such a privilege assumes, incorrectly, that this Court may reconsider the balance that Title VII strikes between the Commission's need for relevant evidence and petitioner's asserted interest in confidentiality. Even if petitioner's proposed privilege were not foreclosed by Title VII, it would not satisfy the standards that this Court has applied in determining the existence and scope of common law privileges. There is virtually no support in state or federal law for the proposed privilege. Moreover, the same considerations that foreclose recognition of a constitutional privilege for tenure review materials also weigh heavily against creation of a common law privilege. ARGUMENT I. THE COMMISSION MUST HAVE ACCESS TO TENURE REVIEW MATERIALS IN ORDER TO PERFORM ITS STATUTORY MANDATE WITH RESPECT TO CLAIMS OF DISCRIMINATION IN HIGHER EDUCATION 1. Academic tenure is "an arrangement under which faculty appointments in an institution of higher education are continued until retirement, subject to dismissal for adequate cause" or other exigent circumstances. Faculty Tenure: A Report & Recommendations by the Commission on Academic Tenure in Higher Education 256 (1973) (hereinafter Faculty Tenure). On every aspect of tenure, policies and practices vary widely among American colleges and universities. /4/ However, junior faculty members are typically employed under fixed-term contracts for probationary periods of up to seven years. R. Chait & A. Ford, Beyond Traditional Tenure 3 (1982). Usually around a year before the end of that period, the university determines whether to grant tenure. Ibid. Tenure decisions involve consideration of a number of factors -- including teaching, scholarship, service within the institution, and others. See R. Chait & A. Ford, supra, at 149-150. One source of information used in tenure determinations is "peer review" -- a term that can encompass a variety of arrangements, including faculty committees, evaluations solicited from individuals outside the tenure candidate's institution, and evaluations provided by other faculty members in the candidate's department. See R. Miller, Evaluating Faculty for Promotion and Tenure 107-110 (1987). Peer review may address any of the factors that an institution considers relevant to tenure. See ibid. /5/ Usually, the decision whether to grant tenure is the end result of a procedure that involves deliberations by members of the candidate's department, faculty committees, the administration, and perhaps the board of trustees. R. Miller, supra, at 115. We understand that petitioner's procedures are consistent with these general practices. Petitioner does not and could not contest the applicability of Title VII to its decision to deny Tung tenure. Tenure is undoubtedly among the "terms, conditions, or privileges of employment" (42 U.S.C. 2000e-2(a)) that may not be withheld on the basis of an individual's race, color, religion, sex, or national origin. Cf. Hishon v. King & Spalding, 467 U.S. 69, 78 (1984). Indeed, a university's decision whether to grant tenure is one of the most important employment decisions to which an individual faculty member is exposed. If tenure is granted, the faculty member can later be terminated only on very narrow grounds. But if tenure is denied, the "up or out" policies typically followed by universities require the faculty member to leave the institution at the end of his or her probationary term. R. Chait & A. Ford, supra, at 3-4. Those individuals who wish to continue pursuing an academic career must then seek employment with another institution and, often, serve another probationary term before again being considered for tenure. See Faculty Tenure, supra, at 5. For the individual, therefore, a university's tenure determination spells the difference between an offer of permanent employment and a notice of termination, with resulting uncertainty as to one's professional future. Rigorous enforcement of Title VII with respect to tenure decisions is central to the goal of eliminating discrimination in institutions of higher education. When an applicant is denied tenure on discriminatory grounds, the effects of that decision persist for many years. The very permanence of a tenure determination (see Pet. Br. 19) is therefore a powerful reason to examine carefully any claim that it resulted from invidious discrimination. 2. Congress affirmed the importance of bringing Title VII to bear on tenure decisions when, in 1972, it extended the Act to educational institutions. When Title VII was originally enacted in 1964, it contained an exemption for "educational institution(s) with respect to the employment of individuals to perform work connected with the educational activities of such institution(s)." Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, Section 702, 78 Stat. 255. Eight years later, Congress eliminated that exemption in enacting the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Section 3, 86 Stat. 103-104. The legislative history indicates that this extension of Title VII was not inadvertent; to the contrary, Congress paid particular attention to invidious discrimination (i.e., discrimination on the basis of race, sex, religion, or national origin) in institutions of higher education, and the legislation was enacted over objections that it would infringe on those institutions' academic judgments. The accompanying committee reports stressed the concern that invidious discrimination in educational institutions was widespread. S. Rep. No. 415, 92d Cong., 1st Sess. 11 (1971); H.R. Rep. No. 238, 92d Cong., 1st Sess. 19-20 (1971). /6/ Contrary to petitioner's suggestion (Pet. Br. 43), Congress's attention was not directed exclusively at "the millions of teachers, administrators, clerical employees and maintenance employees" who were covered by the exemption. /7/ The House Report focused specifically on discrimination in higher education and, indeed, on denial of access to higher ranking (i.e., tenured academic positions (H.R. No. Rep. 238, supra, at 19-20 (emphasis added)): In the field of higher education, the fact that black scholars have been generally relegated to all-black institutions, or have been restricted to lesser academic positions when they have been permitted entry into white institutions is common knowledge. Similarly, in the area of sex discrimination, women have long been invited to participate as students in the academic process, but without the prospect of gaining employment as serious scholars. When they have been hired into educational institutions, particularly in institutions of higher education, women have been relegated to positions of lesser standing than their male counterparts. In (one) study, * * * it was found that the primary factors determining the hiring of male faculty members were prestige and compatibility, but that women were generally considered to be outside of the prestige system altogether. Senator Williams, the sponsor and floor manager of the bill in the Senate, stressed the same point on the floor. 118 Cong. Rec. 2266 (1972). Also on the Senate floor, opponents of the legislation twice introduced amendments to preserve the educational institution exemption. See 118 Cong. Rec. 864, 4919 (1972) (Amendments 815 and 844). Although petitioner argues that "it is unlikely that any member of Congress gave any specific consideration to the effect of the (1972 Act) on the university tenure process" (Pet. Br. 43), proponents of those amendments repeatedly emphasized the asserted effect that removal of the exception for educational institutions would have on academic freedom and faculty hiring and promotions. One opponent referred specifically to tenure (id. at 1993 (remarks of Sen. Allen)): Objective criticism, independent judgment, the search for truth unhampered by transient political interests -- all of which are vital to academic freedom -- could be altered and reshaped by the EEOC. Academic tenure -- the very cornerstone of academic freedom -- would be placed in serious jeopardy if Federal hiring and promotion practices are substituted for those of local school administrators. This theme -- that enforcement of Title VII against institutions of higher education would interfere with decisions to hire and promote faculty members -- was emphasized on many occasions. /8/ Notwithstanding those concerns, the Senate defeated amendments offered to preserve the educational exemption by votes, respectively, of 55-25 and 70-15. Id. at 1995, 4919. Repeatedly, proponents of the legislation emphasized the importance of eliminating any distinction between educational institutions and other employers. Their goal was to give professors and teachers not merely an "effective federal remedy" (Pet. Br. 43 n.44), but the same remedies already conferred on employees elsewhere. /9/ In fact, the Senate Committee Report concluded that "discrimination in educational institutions is particularly critical," since "(t)o permit discrimination here would, more than in any other area, tend to promote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination." S. Rep. No. 415, supra, at 12. 3. The effect of the elimination of Title VII's exemption for educational institutions was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions. As this Court has noted, Title VII creates "'an integrated, multistep enforcement procedure' that enables the Commission to detect and remedy instances of discrimination." EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (citation omitted). /10/ the efficacy of each step of that procedure depends directly on the Commission's unencumbered access to information relevant to alleged discrimination. The Commission's enforcement responsibilities are triggered by the filing of a specific, sworn charge of discrimination. /11/ The Act obligates the Commission to investigate charges of discrimination to determine whether "there is reasonable cause to believe that the charge is true." Section 706(b) of Title VII, 42 U.S.C. 2000e-5(b). If it finds no reasonable cause, the Commission is obligated to dismiss the charge. Ibid. If it does find reasonable cause, the Commission "endeavor(s) to eliminate (the) alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Ibid. This requirement reflects Congress's wish "that violations of the statute could be remedied without resort to the courts." EEOC v. Shell Oil Co., 466 U.S. at 78; see id. at 90 (O'Connor, J., concurring in part and dissenting in part). See also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977). If attempts at voluntary resolution fail, the Commission may bring an action against the employer in accordance with Section 706(f)(1) of the Act, 42 U.S.C. 2000e-5(f)(1). /12/ To enable the Commission to make informed decisions at each stage of the enforcement process, Section 709(a) of Title VII, 42 U.S.C. 2000e-8(a), confers a broad right of access to relevant evidence: (T)he Commission or its designated representative shall * * * have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated * * * that relates to unlawful employment practices covered by (the Act) and is relevant to the charge under investigation. If employers refuse to provide information voluntarily, the Act authorizes the Commission to issue subpoenas and to seek orders enforcing them. Section 710 of Title VII, 42 U.S.C. 2000e-9 (incorporating 29 U.S.C. 161). When it is alleged that a university has discriminated against an individual in a tenure determination, the Commission seeks access to tenure review materials to perform each of its statutory responsibilities: First, in determining whether there is "reasonable cause" to believe that an employer has intentionally discriminated against an employee, the Commission must consider whether race, sex or another impermissible consideration was a "motivating" or "substantial" factor in the decision. See Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1787 (1989) (plurality opinion); id. at 1795 (White, J., concurring); id. at 1798 (O'Connor, J., concurring). "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). The materials to which petitioner's proposed qualified tenure review privilege would apply are often among the most important "circumstantial and direct evidence" to which the Commission can refer. The briefs filed by petitioner and its amici emphasize that universities rely very heavily on evaluations of a tenure candidate by his or her peers. See, e.g., Pet. Br. 20. Moreover, tenure review materials can include documents reflecting the grounds on which university decisionmakers have denied tenure. In this case, for instance, petitioner has withheld not only evaluations by Tung's reviewers, but also other documents reflecting the progress of Tung's application at various stages of the decisionmaking process. Those documents include at least the letter from the Chairman of Tung's Department to the Personnel Committee and records of the deliberations of the Management Department on her merit. See p. 3, supra. Petitioner maintains that it should not have to produce any "documents reflecting the internal deliberations of faculty committees considering applications for tenure" (C.A. J.A. 9). The Commission cannot discharge its responsibility to determine the existence of "reasonable cause" without unencumbered access to materials on which decisionmakers have relied and records reflecting the decisionmaking process itself. As amicus Harvard University recognizes, when tenure is denied on the basis of alleged deficiencies in the candidate's scholarship, "the EEOC * * * will have a legitimate need to discover the substance of the tenure file on which the decision was based, including the substance of evaluations made by peer reviewers both inside and outside the university." Harvard Br. 32. The Commission must examine carefully whether those materials reflect, among other things, differences between the treatment afforded the charging party and other applicants, /13/ reliance by decisionmakers on evaluations reflecting sexual or racial stereotypes, /14/ and departures from established procedures. /15/ The Commission must also consider the extent to which available evidence supports the nondiscriminatory justifications that the university offers for its decision. Tenure review material may be relevant for any of these purposes. As the Third Circuit observed in Franklin & Marshall, 775 F.2d at 116: There may be evidence of discriminatory intent and of pretext in the confidential notes and memorand(a) which the appellant seeks to protect. Likewise, confidential material pertaining to other candidates for tenure in a similar time frame may demonstrate that persons with lesser qualifications were granted tenure or that some pattern of discrimination appears. /(16)/ In conducting its investigations, the Commission cannot be limited to "readily available evidence" (see Pet. Br. 26). It is a rare employer -- universities are no exception -- that concedes that any available evidence is suggestive of discrimination. /17/ When Congress provided the Commission with a right of access to "any evidence" relevant to a charge of discrimination, it empowered the EEOC to look behind the claims that employers might advance to justify their decisions. In cases involving denials of tenure, just as in those involving denial of a partnership, Price Waterhouse v. Hopkins, supra, it is necessary to examine the information on which decisionmakers relied and contemporaneous records reflecting the basis for their decisions. In this case, the Commission cannot assess whether Tung was treated differently than similarly situated males without comparing their files to hers; cannot determine whether petitioner's statement of reasons is bona fide without examining the records to which it refers; and cannot evaluate her claim that her Department Chairman retaliated against her without reviewing his letter in the context of other assessments of her merit. Second, the Commission cannot discharge its obligation to conciliate charges of discrimination without access to materials reflecting the reasons for an unfavorable tenure decision. The Commission cannot facilitate a settlement between a candidate for tenure and a university unless it can discuss the strengths and weaknesses of their respective positions in terms of the evidence that each would have in the event of litigation. In this case, for instance, petitioner has relied heavily on peer review materials in justifying its decision. See p. 16, supra. It is unlikely that the Commission could persuasively urge a settlement without being able to address the documents that petitioner has advanced as support for its decision. Cf. EEOC v. Associated Dry Goods Corp., 449 U.S. at 601 (noting that disclosure of evidence to the charging party "enhances the Commission's ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation"). Finally, unencumbered access to tenure review materials is necessary so that, if the Commission's conciliation efforts fail, it can effectively proceed with its responsibility to litigate claims of discrimination that it finds to be supported by reasonable cause. See 42 U.S.C. 2000e-5(f)(1). The Commission has limited resources. Thus, it has a strong interest in assuring that it does not initiate an action until it has completed a thorough investigation. 4. This Court has acknowledged that the Commission has discretion to determine what information is necessary to enable it to discharge its responsibilities under Title VII. When a court is asked to enforce a Commission subpoena, its responsibility is limited to "satisfy(ing) itself that the charge is valid and that the material requested is 'relevant' to the charge * * * and more generally to assess any contentions by the employer that the demand for information is too indefinite or has been made for an illegitimate purpose." EEOC v. Shell Oil Co., 466 U.S. at 72 n.26. If a subpoena meets these standards, the court must enforce it. Because unencumbered access to relevant information is essential to the effectiveness of the Commission's investigations, this Court and other courts have refused to condition enforcement of EEOC subpoenas on threshold showings going to the merits of a charge. In Shell Oil, for instance, the Court observed that "any effort by the court to assess the likelihood that the Commission would be able to prove the claims made in the charge would be reversible error." Ibid. Requiring such a showing would be "plainly inconsistent with the structure of (Title VII's) enforcement procedure," since the purpose of an investigation is "to determine whether there is reason to believe" that a charging party's allegations are true. EEOC v. Shell Oil Co., 466 U.S. at 71. In short, the Commission's statutory right of access to "any evidence" relevant to a charge, backed by reliable procedures for enforcing its subpoenas, is a critical element of Title VII's enforcement scheme. Rather than providing for enforcement of Title VII solely through private actions, Congress authorized the Commission to conduct investigations into charges of discrimination, to conciliate cases in which there is reasonable cause to believe that discrimination occurred, and to bring actions when conciliation proves impossible. Unless tenure determinations are to be treated differently than other employment decisions, a result that would be contrary to Congress's intention in extending the Act to institutions of higher education in 1972, the Commission must have the same unencumbered access to tenure review materials as it does to any other relevant evidence. As we demonstrate below, there is no basis in the statute, the Constitution, or the common law for any qualification on the Commission's authority to issue and enforce subpoenas seeking tenure review materials relevant to a claim of discrimination. II. TITLE VII CANNOT PROPERLY BE CONSTRUED TO PERMIT A COURT TO BALANCE THE COMMISSION'S NEED FOR INFORMATION RELEVANT TO A SWORN CHARGE OF UNLAWFUL DISCRIMINATION AGAINST AN EMPLOYER'S ASSERTED INTEREST IN CONFIDENTIALITY Although petitioner does not argue that the Commission failed to make the showings required by Shell Oil for enforcement of its subpoena (see Pet. App. A24), it nevertheless contends that the Act permits a court to withhold enforcement if it determines that petitioner's asserted interest in confidentiality outweighs the Commission's need for responsive evidence. Pet. Br. 37-44. This argument fails. The language and structure of the Act, supported by its legislative history, permit no such exception for tenure review materials. Nor can an exception be based upon the principle that statutes should be interpreted to avoid serious constitutional questions. A. The Language and Structure of the Statute Foreclose Any Qualified Privilege for Tenure Review Materials 1. As we have noted, Section 709(a) of Title VII, 42 U.S.C. 2000e-8(a), unambiguously provides the Commission with a statutory right of "access to * * * any evidence of any person being investigated * * * that relates to unlawful employment practices covered by (the Act) and is relevant to the charge under investigation." The terms "any evidence" and "any person being investigated" are clear and all-encompassing. They permit no distinction between tenure review materials and other evidence, or between universities and any other type of employer. To implement the Commission's right of access to relevant evidence, Section 710 of Title VII, 42 U.S.C. 2000e-9, incorporates procedures for issuing and enforcing subpoenas from Section 11 of the National Labor Relations Act, 29 U.S.C. 161. Under Section 11(1), the Board, and thus the Commission, may issue subpoenas requiring the attendance of witnesses or the production of evidence. The same Section allows a party served with such a subpoena to apply for revocation of the subpoena; the Board or the Commission, as the case may be, must grant that relief "if in its opinion the evidence * * * does not relate to any matter under investigation" or "if in its opinion such subpoena (sic) does not describe with sufficient particularity" the responsive evidence. Finally, Section 11(2), 29 U.S.C. 161(2), provides that if the employer refuses to obey the subpoena, a district court: upon application * * * shall have jurisdiction to issue to such person an order requiring such person * * * to produce evidence if so ordered, or * * * to give testimony touching the matter under investigation or in question * * *. The structure of the Act compels the conclusion that this Section provides a tool -- legal process -- to enforce the Commission's statutory right of access. Significantly, Title VII anticipates and addresses situations in which an employer may have an interest in the confidentiality of its records. The same Section that gives the Commission access to any evidence relevant to its investigations also makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. Section 709(e) of Title VII, 42 U.S.C. 2000e-8(e). Any violation of this provision subjects the Commission's employees to criminal penalties. Ibid. This Section of the Act strikes the balance between the Commission's need for relevant information and any interest that an employer may have in maintaining its confidentiality, and thus plainly shows that Congress intended the Commission to have access to sensitive materials. The statute permits the Commission access to the information, but, until a suit is filed, permits the Commission to disseminate it only to the extent necessary to discharge its statutory responsibilities. See EEOC v. Associated Dry Goods Corp., supra. Congress having spoken, there is no occasion for the courts to draw a different balance by means of a judicially created privilege. Petitioner argues, nevertheless, that Title VII leaves courts with discretion to provide additional protection for tenure review documents. Although petitioner recognizes that Title VII gives the Commission broad "power to seek access to all evidence that may be 'relevant to the charge under investigation'" (Pet. Br. 38), it nevertheless contends that Title VII subpoena enforcement provisions do not give the Commission an unqualified right to acquire such evidence. See Pet. Br. 38-41. That interpretation is untenable. First, the plain language of Section 709(a) of Title VII, 42 U.S.C. 2000e-8(a), states that the Commission "shall * * * have access" to relevant evidence; this can only be read as giving the Commission a right to that evidence, not a mere "power to seek" it. Second, the structure of the Act compels the conclusion that the Commission's subpoena power -- a familiar form of compulsory process -- is a means of enforcing, not a limitation on, that right. /18/ The Commission obviously did not require subpoena power and a statutory right of access in order to be able to make a request for information which the recipient could agree or decline to provide as a matter of choice. Finally, by specifying the extent to which employers' interests in confidentiality are to be protected, Title VII forecloses any unwritten exceptions based upon such interests. Of course, a person cannot be ordered to produce documents when the order would violate his privilege against self-incrimination or another constitutional right. Similarly, statutes guaranteeing agencies access to relevant evidence have not been construed to override established and generally applicable privileges, such as the attorney-client privilege or the work product doctrine. See Upjohn v. United States, 449 U.S. 383, 398 (1981); United States v. Euge, 444 U.S. 707, 714 (1980). However, no such traditional privilege is implicated here, and Title VII itself creates no privilege for any category of evidence. Accordingly, the Commission's statutory grant of subpoena power is controlling here on its face -- when it is construed, as it should be, in light of the "longstanding principle that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege * * *." Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (citations omitted). B. The Legislative History Confirms That Title VII Remedies Apply Evenhandedly to Institutions of Higher Education No Less Than to Other Employers The legislative history of the 1972 amendments to Title VII confirms that this straightforward reading of the statutory text correctly reflects Congress's intent. As we have recounted (pp. 11-13, supra), the proponents of the extension of Title VII to educational institutions were particularly concerned with discrimination in colleges and universities, including denial of access to the higher academic ranks. Twice, the Senate defeated efforts to preserve the exemption for educational institutions, rejecting claims that the exemption was necessary to protect universities' academic judgments from interference. Supporters of the legislation emphasized the importance of giving teachers and faculty members the same remedies as other employees. There is no basis for believing that the Congress that acted on these concerns meant to impose a fundamental, yet unstated, limitation on the Commission's authority to investigate claims of discrimination in higher education. C. The Principle That Statutes Should Be Interpreted To Avoid Serious Constitutional Issues Does Not Support Petitioner's Claim The language, structure, and legislative history of Title VII leave no room for application of the principle that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988). See Public Citizen v. Department of Justice, 109 S. Ct. 2558, 2572-2573 (1989); City of Rome v. United States, 446 U.S. 156, 173 (1980). "(T)his canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication," Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841 (1986), particularly where the proposed interpretation would have a "crippling effect" on an agency's enforcement authority, id. at 843. It is not "fairly possible" to read Title VII to provide the qualified immunity that petitioner seeks. E.g., St. Martin Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981); International Ass'n of Machinists v. Street, 367 U.S. 740, 749-750 (1961); Crowell v. Benson, 285 U.S. 22, 62 (1932). The statute's plain language and legislative history reflect an "affirmative intention of the Congress clearly expressed," NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979) (quoting McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963)), to give the Commission access to any evidence relevant to its investigations, whether or not the employer is a university, and, when necessary, a right to judicial enforcement of that access. We turn, therefore, to petitioner's claims that such an immunity may be found outside Title VII -- in the First Amendment or the common law. III. TITLE VII'S SUBPOENA ENFORCEMENT PROVISIONS ARE CONSTITUTIONAL AS APPLIED TO TENURE REVIEW MATERIALS Petitioner's essential constitutional submission is that Title VII's subpoena enforcement provisions are unconstitutional as applied to tenure review materials, unless the Commission is required to demonstrate that its need for information outweighs petitioner's asserted interest in the confidentiality of those documents. Pet. Br. 11, 32-37. It contends that under the First Amendment a university must have "some degree of autonomy" -- the freedom "to determine . . . on academic grounds who may teach." Pet. Br. 16, 17 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in the result)). Describing a confidential "peer-reviewed tenure process" as a "central component" of that freedom, it argues that enforcement of subpoenas in accordance with the terms of the Act would impermissibly infringe on its autonomy. For several reasons, that claim should be rejected. The purpose of an EEOC investigation, the enforcement of the Act's prohibition on invidious discrimination, threatens no interference with constitutionally protected activity. Moreover, disclosure of evidence relevant to a claim of discrimination imposes no legally significant burden on participants in tenure determinations. Even if it did, there is a "substantial relation" (Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87, 92 (1982)) between a request for information relevant to a sworn charge of discrimination and the overriding and compelling public interest in eliminating discrimination from institutions of higher education. Because that relationship has been demonstrated on the facts of this case, the First Amendment imposes no obstacle to enforcement of the subpoena at issue here. Finally, the First Amendment should not be construed to require a showing that would hamstring the Commission's efforts to enforce Title VII. A. Enforcement of the Act's Substantive Prohibition on Invidious Discrimination Involves No Infringement on Academic Freedom The effect of an EEOC subpoena cannot be considered in isolation from the nature of the inquiry it advances. The only purpose of an EEOC investigation is to enforce the Act's substantive prohibition on invidious discrimination -- a purpose that entails no interference with any constitutionally protected activity. Title VII's prohibition on discrimination does not limit a university's freedom "to determine for itself on academic grounds who may teach." Sweezy v. New Hampshire, 354 U.S. at 263 (Frankfurter, J., concurring in the result) (emphasis added). /19/ The Act provides "that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. Yet the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions." Price Waterhouse v. Hopkins, 109 S. Ct. at 1784 (plurality opinion). In keeping with Title VII's "preservation of employers' remaining freedom of choice," Price Waterhouse v. Hopkins, 109 S. Ct. at 1786 (plurality opinion), courts have stressed the importance of avoiding second-guessing of legitimate academic judgments. Absent evidence that a tenure decision has been influenced by invidious discrimination, "universities are free to establish departmental priorities, to set their own required levels of academic potential and achievement and to act upon the good faith judgments of their departmental faculties or reviewing authorities." Zahorik v. Cornell University, 729 F.2d 85, 94 (2d Cir. 1984). /20/ Under the Act, a university is free to use a tenure system to protect the independence of its faculty, and to apply any non-discriminatory procedures or criteria that it wishes to tenure determinations. A Commission subpoena is not an "express or implied command" that any university or its faculty conform to any point of view, and it does not interfere with the ability of any member of the academic community to speak, publish, pursue information, or engage in public debate. Compare Branzburg v. Hayes, 408 U.S. at 681. Similarly, Title VII's prohibition of invidious discrimination does not restrict the constitutionally protected freedom of association of a university or the members of an academic community. In Runyon v. McCrary, 427 U.S. 160, 176 (1976), this Court noted that "while '(i)nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections'" (quoting Norwood v. Harrison, 413 U.S. 455, 469-470 (1973)). Accord Hishon v. King & Spalding, 467 U.S. 69, 78 (1984). Thus, by prohibiting invidious discrimination, Title VII does not impermissibly limit the right of the members of a university community to engage in "intimate" or "expressive" association. See New York State Club Ass'n v. City of New York, 108 S. Ct. 2225, 2233-2234 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 544-549 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 626-628 (1984). Indeed, rigorous enforcement of Title VII is supportive of an important element of academic freedom -- the individual academic's important interest in having his or her tenure determination based solely on legitimate, nondiscriminatory grounds. Academic freedom includes "a commitment to protect faculty members from retributive action not only for what they say and do, but also for what they are." AAUP, On Processing Complaints of Discrimination on the Basis of Sex (1978), reprinted in AAUP Policy Documents & Reports 74 (1984). Protection of individual rights under Title VII is not "inimical to academic freedom and educational excellence; in fact, fair consideration is an essential condition for academic freedom." Gray, Academic Freedom and Nondiscrimination: Enemies or Allies?, 66 Tex. L. Rev. 1591, 1608 (1988). Thus, although enforcement of Title VII may involve government inquiry into the employment decisions of academic institutions, the purpose of that inquiry is entirely consistent with ideals of academic freedom. B. The Commission's Subpoenas Do Not Burden the Freedom Of Universities to Select the Members of Their Faculties on Academic Grounds This Court has never suggested that academic freedom protects a college or university from legitimate inquiries for purposes unrelated to the suppression of protected activity. In Barenblatt v. United States, 360 U.S. 109, 112 (1959), the Court noted that although it would be "on the alert" against intrusion into "academic teaching-freedom and its corollary learning-freedom:" An educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is made of someone within its walls. See id. at 129. Similarly, though the Court has cautioned that "judges * * * asked to review the substance of a genuinely academic decision * * * should show great respect for the faculty's professional judgment," Regents of University of Michigan v. Ewing, 474 U.S. 214, 225 (1985), it has never intimated that this deference extends to curtailing an investigation into whether a decision in fact reflects academic considerations. Where a university is alleged to have infringed an individual's rights, it can invoke legitimate academic considerations to justify its actions, but it has no "constitutional shield," Branzburg v. Hayes, 408 U.S. at 697, against investigation of the claim. Nor are universities unique in their obligation to comply with Title VII with respect to employees engaged in activities protected by the First Amendment. Many employers covered by the Act employ writers, editors, musicians, or others engaged in expressive activities. Universities have no greater claim than the news media to protection from any "incidental burdening * * * that may result from the enforcement of civil or criminal statutes of general applicability," Branzburg v. Hayes, 408 U.S. at 682. "(O)therwise valid laws serving substantial public interests may be enforced * * *, despite the possible burden that may be imposed." Id. at 682-683; Konigsberg v. State Bar, 366 U.S. 36, 49-51 (1961). For a number of reasons, compliance with an EEOC subpoena involves no burden sufficient to justify petitioner's broad claim of privilege. a. By contrast to all of the situations in which the Court has held compelled disclosures of information violative of the First Amendment, the claim that compliance with EEOC subpoenas will burden a university's ability to select the members of its tenured faculty is remote and speculative. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 765-767 (1986); Brown v. Socialist Workers, supra; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. City of Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449, 460-461 (1958). See generally Buckley v. Valeo, 424 U.S. 1, 64-74 (1976). Disclosure of tenure review materials does not involve any interference with petitioner's freedom to apply academic criteria of its choice to tenure determinations, or with the rights of free speech or association of individual professors, the sources of petitioner's constitutional claim. Nor does disclosure attach any significant penalty to participation in a tenure determination. Engaging in review of one's peers is a respected part of an academic's career, if not a professional responsibility. Members of the academic community regularly engage in and expose themselves to published criticism of the merits of one another's scholarly work. The possibility of disclosure of a peer reviewer's evaluation thus does not introduce an alien element into the academic environment. Nor would disclosure expose the reviewer to a threat of economic or physical injury, harassment, criminal or civil liability, or even to close scrutiny in an EEOC investigation. /21/ Disclosure under these circumstances involves no "significant encroachment upon personal liberty," i.e., "the threat of substantial government encroachment upon important and traditional aspects of individual freedom" that is "neither speculative nor remote." Bates v. Little Rock, 361 U.S. at 524. See Branzburg v. Hayes, 408 U.S. at 699-700. b. Petitioner cannot demonstrate that confidentiality is essential to effective peer review. The features of tenure review systems in this country vary widely. Contrary to petitioner's assertions (see Pet. Br. 20-21), it is not true that "(a)ll peer review evaluations traditionally have been provided with express or implied assurances of confidentiality." According to one recent study of nearly one hundred liberal arts colleges, practices vary. G. Bednash, The Relationship Between Access and Selectivity in Tenure Review Outcomes (1989) (Ph.D. Dissertation, University of Maryland). /22/ Approximately 51% of the surveyed colleges allowed a tenure candidate to learn the identity of outside reviewers. Id. at 111, 321. Approximately 36% of the institutions in the study allowed candidates to have access to internal peer evaluations, and 23.9% allowed candidates to determine the identity of the internal reviewers. Id. at 110-111. Approximately 29% allowed tenure candidates access to evaluations by outside reviewers; 17.4% allowed the candidates to link those evaluations to the reviewers involved. Ibid. Substantial percentages of the institutions surveyed provided candidates with information on committee proceedings and departmental recommendations. Id. at 112-114. To be sure, the predominant practice in the institutions surveyed was to deny the applicant for tenure access to most aspects of the tenure review process. Nevertheless, these survey results are not consistent with the assumption that the tenure review process is invariably closed and confidential. /23/ Even within the academic community, the degree of confidentiality required for tenure review materials, like virtually all aspects of tenure procedures, is subject to debate. Compare Branzburg v. Hayes, 408 U.S. at 693-694 & nn.32-33. /24/ c. Petitioner's proposed qualified privilege is not limited to participants in tenure decisions who can legitimately assert a need for confidentiality. /25/ As the facts of this case reflect, petitioner claims an equal measure of protection for evaluations prepared by inside and outside reviewers, input provided by its leadership, such as the Chairman of Tung's Department, and all records of the internal deliberations that have preceded a particular tenure determination. See p. 3, supra. However, any assertion that persons who occupy positions of leadership or serve on committees whose function is to evaluate candidates for tenure require complete confidentiality to perform their work is insupportable. A university's leadership and decisionmakers cannot rely on doubts as to their own commitment to candor and the excellence of their institutions to shield their actions from inquiry. /26/ When a charge of discrimination is filed, "the (academic) decisionmaker will be called upon to explain his actions. If that means that a few weak-willed individuals will be deterred from serving in positions of trust, so be it." In re Dinnan, 661 F.2d 426, 432 (5th Cir. 1981), cert. denied, 457 U.S. 1106 (1982). Similarly, an academic community can reasonably be expected to secure from its own members candid and responsible evaluations of persons who seek tenured positions, notwithstanding the slight risk that those evaluations may someday be disclosed to the EEOC. d. Disclosure of tenure review materials to the EEOC involves only a limited inroad on their confidentiality, and a correspondingly limited threat to any assertedly protected interest. Compare Branzburg v. Hayes, 408 U.S. at 700 (grand jury secrecy "is a further protection against the undue invasion of (First Amendment) rights"), with Brown v. Socialist Workers, 459 U.S. at 97-98 n.14 (public records of contributors and recipients of campaign funds); Shelton v. Tucker, 364 U.S. at 486 & n.7 (public exposure of associations of school teachers); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 765-767 (public disclosure of details of abortions). As noted above, it is unlawful for the Commission to make public any information that the Commission obtains in an investigation in advance of litigation. 42 U.S.C. 2000e-8(e). Although the prohibition does not apply to disclosure to the charging party, EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981), or to witnesses when disclosure is "necessary for securing appropriate relief," 29 C.F.R. 1601.22, the statute does protect participants in peer review from unjustified dissemination of confidential materials. /27/ e. The likelihood that any particular evaluation will be disclosed even to the EEOC is small. There has been no showing that a substantial percentage of tenure determinations are the subject of sworn charges filed under Title VII. Further, tenure review materials are sought by the Commission only when they are relevant to such a charge. Literal enforcement of Title VII hardly presents peer reviewers with "the knowledge of certain disclosure." Pet. Br. 46 n.46. Cf. Herbert v. Lando, 441 U.S. at 174 (finding it "difficult to believe" that the editorial process would be stifled because it will be "examined in the tiny percentage of instances in which error is claimed and litigation ensues"); Branzburg v. Hayes, 408 U.S. at 691 ("(n)othing before us indicates that a large number or percentage of all confidential news sources" will be implicated in crimes or possess evidence relevant to a grand jury investigation). f. Individuals who find the foregoing assurances of confidentiality inadequate will derive no comfort from petitioner's qualified privilege, which would permit disclosure whenever confidential information "will substantially promote the factfinding process" (Pet. Br. 46). Even those courts that have adopted a balancing test have required disclosure of tenure review materials when a university has relied on alleged deficiencies in the candidate's scholarship to justify an adverse tenure decision. See p. 40, note 34, infra. Thus, a reviewer can be guaranteed confidentiality only if he is assured that the university will not rely on his evaluation. Since peer reviews are solicited on the assumption that they will be used, no such guarantee is possible. Cf. Branzburg v. Hayes, 408 U.S. at 702-703 & n.39 (1972) ("If newsmen's confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem."). When it extended Title VII to educational institutions, Congress found that discrimination was widespread in colleges and universities. To remedy that discrimination, Congress exposed tenure decisions to the same degree of scrutiny, no more and no less, as any other employment decision. According to petitioner, that scrutiny must now be moderated to avoid various supposed ill effects on the tenure review process (see Pet. Br. 34-36). /28/ However, academics cannot rely on any limitations in their own commitment to candor, collegiality, and the excellence of their institutions as the basis for an exemption from Title VII. The concerns that participants in a tenure review process may feel when they consider the slight possibility that tenure review materials will be disclosed to the Commission do not distinguish them from other private and public employers who must also strive to promote the best from within their ranks while complying with the requirements of Title VII. C. There Is a Substantial Relation Between A Request for Vnformation Relevant to a Sworn Charge of Discrimination and the Compelling National Interest in the Elimination of Discrimination from Institutions of Higher Education Because subpoenas issued in accordance with Title VII do not suppress protected activity and impose no significant burden on a university's freedom to choose its faculty members on nondiscriminatory grounds, no special showing of justification is required to sustain Title VII's constitutionality as applied to tenure review materials in general or to the subpoena involved in this case. Compare Branzburg v. Hayes, 408 U.S. at 699-700. But in any event, subpoenas issued under Title VII satisfy even the stricter standards applicable to compelled disclosures that, unlike these, involve a "significant encroachment upon personal liberty," Bates v. Little Rock, 361 U.S. at 524. When, as in this case, tenure review materials are relevant to a claim of discrimination, there is a "substantial relation" between the Commission's request for those materials and "an overriding and compelling state interest." Brown v. Socialist Workers, 459 U.S. at 92 (quoting Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 546). Accord Buckley v. Valeo, 424 U.S. at 64. Nothing more is required to sustain the constitutionality of a Commission subpoena. 1. Petitioner concedes that the elimination of invidious discrimination in employment is a "compelling interest." Pet. Br. 45. In fact, it is a national goal of the "highest priority." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). The committee reports accompanying the legislation that extended Title VII to educational institutions emphasized the singular importance of eliminating discrimination in educational institutions at all levels. The Senate Report noted that discriminatory practices in those institutions "parallel the same kinds of illegal actions which are encountered in other sectors of business" (S. Rep. No. 415, supra, at 11), and the House Report referred specifically and at length to the problems that women and minorities were encountering in institutions of higher learning (H.R. Rep. No. 238, supra, at 19-20). Because of the role that schools play in shaping future societal attitudes toward discrimination, the elimination of discrimination in that setting was considered, and remains, "particularly critical." S. Rep. No. 415, supra, at 12. 2. a. Contrary to petitioner's extravagant characterizations, the means that Congress chose to end discrimination in employment do not authorize the Commission to demand "automatic disclosures" of or "unbridled access" to employment records (see, e.g., Pet. Br. 11, 13, 45). The Commission's subpoena authority is limited to evidence relevant to a specific, sworn charge of discrimination, which sets forth, inter alia, "a clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." 29 C.F.R. 1601.12. /29/ Before a subpoena can be enforced, the Act provides the employer with two opportunities to contest the subpoena's compliance with applicable statutory standards. The employer may apply to the Commission for modification or revocation of the subpoena, advancing arguments addressed to both the Commission's power and its discretion. See 29 U.S.C. 161(1); 29 C.F.R. 1601.16(b). If the Commission denies the application, the employer can obtain judicial review when the Commission applies for enforcement of the subpoena, limited by the standards set out in Shell Oil. These statutory provisions are sufficient to protect universities, like other employers, against disclosures that have no "substantial relation" to the compelling interest in investigating and remediating specific claims of unlawful discrimination. None of the cases on which petitioner relies (see Pet. Br. 14, 45-46) suggests that a subpoena is insufficiently related to a legitimate interest unless a court first determines that the government's need for particular information "outweighs" a private party's interest in withholding it. In Barenblatt v. United States, supra, the Court upheld the legitimacy of a congressional committee's inquiries into whether a witness and others were members of the Communist party after it determined that the "investigation was related to a valid legislative purpose," and that there were no factors indicating an abuse of the committee's investigatory authority. 360 U.S. at 127, 130. The Court refused to deny the committee's power to require a response to its inquiries "solely because the field of education is involved" (id. at 129), and it did not remotely suggest that the committee could be required to make a showing of supervening need before compelling responses to its questions. Similarly, in his concurring opinion in Branzburg v. Hayes, Justice Powell emphasized that judicial relief would be available in cases in which a "newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement." 408 U.S. at 710; see id. at 710 n.* (referring to judicial protection from "improper or prejudicial" questioning). /30/ Justice Powell joined with the other members of the majority in rejecting a privilege indistinguishable from that proposed by petitioner in this case, explaining that such a limitation on the investigatory power of the grand jury would "heavily subordinate()" the "essential societal interest in the detection and prosecution of crime" (ibid.). /31/ The opinions that petitioner cites for its case-by-case balancing test actually suggest only that judicial relief will be available if an investigation is not being conducted for a proper purpose or the information sought bears no reasonable relationship to a legitimate subject of inquiry. /32/ The procedures under the Act and the standards recognized in Shell Oil fully protect employers against subpoenas of that type. b. There can be no claim that the subpoena in this case lacks the requisite relation to the Act's objective of eliminating discrimination. Tung's charge alleged that the denial of her tenure was attributable in part to an unfairly derogatory letter authored by the Chairman of her Department. J.A. 28-29. Petitioner refused to produce that letter. C.A. J.A. 5. /33/ The charge also alleged that five male faculty members whose qualifications were no better than Tung's had been treated more favorably. J.A. 29. Petitioner refused to produce portions of its files on them. C.A. J.A. 8. Indeed, petitioner's claim of privilege covered not only evaluations of Tung's scholarship, but also the contemporaneous documents disclosing the reasons for its decision -- "documents reflecting the internal deliberations of faculty committees considering applications for tenure." C.A. J.A. 9. In its letter advancing non-discriminatory justifications for denying Tung tenure, petitioner repeatedly relied on the materials it has withheld from the Commission. Hamburg Letter, supra. Referring to "serious concerns" that members of the Personnel Committee had expressed concerning Tung's scholarship, the letter cited "similar reservations expressed in some of the letters and reviews from the candidate's peer group evaluators outside the University." Id. at 1. It noted that the Personnel Committee's deliberations "included discussions of the documents submitted by the Management Department, which contained the department chairman's letter, the report of the department evaluation committee, and letters of recommendation from colleagues both inside and outside the University" and described the general tone of each category of materials. Id. at 2. Petitioner thus seeks to justify its decision by reference to the same documents -- from inside and outside evaluators and the Management Department's chairman and evaluation committee -- that it has withheld from the Commission. /34/ Contrary to petitioner's contention (Pet. Br. 14), the Commission has carefully explained why it needs the materials that have been withheld. In its decision denying petitioner's application for modification of the subpoena, the Commission stated that the information from files for faculty members other than Tung was "necessary in order to determine whether Ms. Tung was treated differently than those who received tenure" (Pet. App. A30). /35/ It also emphasized the importance of probing petitioner's stated reasons for its decision, noting that the Commission would "fall short of its obligation" to investigate claims of discrimination "if it stopped its investigation once (an employer) has provided the reasons for its employment decisions, without verifying whether that reason is a pretext for discrimination." Id. at A32. Plainly, that entirely legitimate inquiry cannot be concluded without examining the evaluations on which petitioner claims to have relied and the records of deliberations that culminated in its adverse tenure determination. Many, if not all, investigations of claims of discrimination would be futile if the Commission were required to demonstrate the insufficiency of claimed bona fide grounds for an employment decision before it could obtain access to documents reflecting the factors on which the decision was actually based. Recognition of a privilege of this type would place out of reach "a range of direct evidence relevant to proving" that discriminatory factors influenced an employment decision. Cf. Herbert v. Lando, 441 U.S. at 169-170. Nothing in the First Amendment requires or justifies that result. D. Petitioner's Qualified Privilege Would Seriously Hamper and Delay Enforcement of Title VII Finally, petitioner's proposed constitutional privilege should be rejected because it would unduly hinder enforcement of Title VII. Making enforcement of the Commission's subpoenas dependent on a finding, "based on a variety of factors, (that the Commission) has demonstrated a specific reason for disclosure that 'outweighs' the university's interest in confidentiality" (Pet. Br. 45-46) would place a substantial, litigation-producing obstacle in the way of the Commission's efforts to investigate and remedy alleged discrimination. /36/ Though petitioner is understandably vague in describing how its test would operate in practice, the contentions that could be brought within that test's bounds would be limited only by the imagination. In the final analysis, the test involves a balance between intangibles -- the Commission's need for information against a university's interest in confidentiality -- in the context of a particular investigation. To strike such a balance, a court would presumably have to inform itself of the status of the Commission's investigation on the one hand and the particular facts that bear on the university's countervailing interest in confidentiality, assign a weight to the parties' concerns, and compare them. Petitioner apparently contemplates that there would be extensive litigation on the question whether "readily available evidence" (Pet. Br. 26) supported the charge of discrimination or suggested that additional evidence of discrimination could be found in tenure files, an inquiry "plainly inconsistent with the structure of (Title VII's) enforcement procedure," EEOC v. Shell Oil Co., 466 U.S. at 71. The balance would have to be struck, petitioner argues, not only as to a particular investigation or particular documents, but even as to the nature of the redactions that would be permitted in particular cases, in repeated rounds of litigation. Pet. Br. 47 nn.47-48. See EEOC v. University of Notre Dame, 715 F.2d at 339 ("substantial showing of particularized need must be demonstrated to the satisfaction of the court each and every time the EEOC seeks additional privileged material"). Obviously, a qualified privilege of this type would generate virtually endless opportunities for procedural skirmishing. A university faced with an affidavit explaining why the Commission had subpoened tenure review files might well seek discovery or file countervailing affidavits and seek to have disputes resolved at a hearing. Cf. Branzburg v. Hayes, 408 U.S. at 705 ("In each instance where a reporter is subpoenaed to testify, the courts would * * * be embroiled in preliminary factual and legal determinations with respect to whether the proper predicate had been laid for the reporter's appearance * * *."). When the Court rejected a far more modest threshold requirement for enforcement of an EEOC subpoena in Shell Oil, it emphasized the importance of preserving the Commission's unencumbered access to relevant information. Recognizing that litigation over the form of the charge and subsequent appeals "would substantially slow the process by which the EEOC obtains judicial authorization to proceed with its inquiries," the Court was unwilling to "place a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the EEOC." 466 U.S. at 81. Accord id. at 93 (O'Connor, J., concurring in part and dissenting in part) (the Commission has a "strong interest in avoiding a 'minitrial' on every discovery request"). /37/ The qualified privilege petitioner advocates should be rejected for the same reason. IV. THERE IS NO COMMON LAW PRIVILEGE PROTECTING TENURE REVIEW MATERIALS RELEVANT TO AN EEOC INVESTIGATION Petitioner also contends that a qualified privilege for tenure review materials may be found in the common law, "interpreted * * * in the light of reason and experience," Fed. R. Evid. 501. However, a legal privilege may not be based, as petitioner maintains, on this Court's assessment of the relative importance of the interests of universities and the Commission in tenure review materials. Title VII strikes that balance, and the statute should be enforced in accordance with its terms. In any event, petitioner cannot demonstrate that the interests its proposed privilege would serve have the importance or legal recognition required to justify a new evidentiary privilege. 1. Like other statutes conferring authority on administrative agencies to issue and obtain enforcement of subpoenas, Title VII does not override established, generally-applicable privileges. For instance, persons served with subpoenas may assert a valid attorney-client or work-product privilege as an excuse for withholding a document. See United States v. Euge, 444 U.S. 707, 714 (1980). Although Congress undoubtedly has the power to abolish or narrow a common law privilege, statutes giving an agency authority to obtain relevant evidence are understood to incorporate the privileges that apply to evidence in all legal proceedings. This case involves a far different privilege claim, questioning the justification for the very grant of the agency's investigatory power. When, as here, Congress has conferred a right on an agency to obtain relevant evidence, courts must respect that legislative assessment of the relative interests of the agency charged with enforcing federal law and the persons who possess that evidence. Cf. Branzburg v. Hayes, 408 U.S. at 706 ("By requiring testimony from a reporter in investigations involving some crimes but not in others, (courts) would be making a value judgment that a legislature had declined to make, since in each case the criminal law involved would represent a considered legislative judgment, not constitutionally suspect, of what conduct is liable to criminal prosecution."). The extension of Title VII to universities in 1972 similarly manifests a "considered legislative judgment, not constitutionally suspect" that universities should be subject to the enforcement provisions of Title VII. A court should not, under the guise of determining whether a common law privilege exists, contradict that legislative judgment. As the Third Circuit recognized, Title VII is a "'clear mandate' subjecting academic institutions to the express requirements of Title VII." Pet. App. A10 (quoting EEOC v. Franklin & Marshall College, 775 F.2d at 115). /38/ It forecloses any privilege based on a court's assessment of the relative importance of the Commission's need for information and a university's interest in withholding it. 2. Even if petitioner's claim for a qualified privilege were not foreclosed by Title VII, applicable legal standards would call for its rejection. "The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges * * * 'governed by the principles of the common law * * * in the light of reason and experience.'" Trammel v. United States, 445 U.S. 40, 47 (1980) (citation omitted). However, there is "a presumption against the existence of an asserted testimonial privilege." Branzburg v. Hayes, 408 U.S. at 686. The basis for that presumption is well established, Trammel v. United States, 445 U.S. at 50: Testimonial exclusionary rules and privileges contravene the fundamental principle that "'the public . . . has a right to every man's evidence.'" United States v. Bryan, 339 U.S. 323, 331 (1950). As such they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord United States v. Nixon, 418 U.S. 683, 710 (1974). Petitioner's proposed privilege is not supported by interests of the type underlying the privileges that have been recognized by this Court. /39/ In United States v. Nixon, 418 U.S. at 705-706, the Court determined that a qualified privilege for presidential communications is necessary to preserve the separation of powers between the Branches of the federal government. "(T)he privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings." Ibid. See NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 151 n.17 (1975). In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), the Court applied the rule of grand jury secrecy codified in Fed. R. Crim. P. 6(e). The Court noted that the rule dated back to the 17th century, was imported into our common law, and was eventually codified as "an integral part of our criminal justice system." 441 U.S. at 218 n.9. Similarly, Clark v. United States, 289 U.S. 1, 13-14 (1933), recognized a privilege for the votes and deliberations of a petit jury, noting that references to the privilege in dicta "bear with them the implications of an immemorial tradition." Finally, in NLRB v. Sears, Roebuck & Co., supra, the Court construed an exception to FOIA in which Congress had incorporated a well-established privilege for deliberative, predecisional, intra-agency documents. See M. Larkin, Federal Testimonial Privileges Section 5.02(2) (1988). /40/ Petitioner's tenure review privilege has no similar constitutional, statutory, or historical basis. Even as a matter of first impression, a tenure committee's deliberations do not stand on the same legal footing as discussions between the President of the United States and his confidential aides, or the deliberations of a petit jury, a grand jury, or a government agency. State law provides virtually no support for petitioner's position. One intermediate state appellate court has held that tenure review materials compiled by a public university are exempt from disclosure under the state's public disclosure statute. Hafermehl v. University of Washington, 29 Wash. App. 366, 628 P.2d 846 (1981). /41/ In California, the Court of Appeal, construing a state constitutional provision protecting the right to privacy and a statute permitting employees to review their files, held that a professor was entitled to discovery of his personnel and tenure files with evaluators' names redacted. Board of Trustees of Leland Stanford Junior University v. Superior Court, 119 Cal. App. 3d 516, 174 Cal. Rptr. 160 (1981). /42/ By contrast, a federal district court has construed a California statute protecting governmental deliberative documents to apply to the tenure review files of a public university. McKillop v. Regents of the University of California, 386 F. Supp. 1270 (N.D. Cal. 1975). In Cockrell v. Middlebury College, 148 Vt. 557, 536 A.2d 547 (1987), the Supreme Court of Vermont declined to reach the question whether tenure review materials were privileged under state law. As far as we can determine, no state statute protects tenure review materials as such. /43/ 3. Finally, the considerations we have addressed as foreclosing petitioner's constitutional claim also weigh heavily against recognition of a nonconstitutional privilege. Universities in this country do not agree on the proposition that confidentiality is essential to a peer review system. The proposed qualified privilege, rebuttable whenever access to tenure files would "substantially promote the factfinding process" (Pet. Br. 46), would not add significantly to the confidentiality of tenure decisions, but would seriously delay and hinder the Commission's investigations. In view of Congress's considered extension of Title VII to educational institutions, the Court should not recognize a novel privilege that would impair the Commission's ability to enforce the Act in that particularly critical setting. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. KENNETH W. STARR Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 CHARLES A. SHANOR General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel HARRY F. TEPKER, JR. Attorney Equal Employment Opportunity Commission AUGUST 1989 /1/ Letter from Dr. Morris Hamburg to Dean Russell Palmer (Sept. 26, 1985) (hereinafter Hamburg Letter). This letter was not in the record, but was quoted in petitioner's brief (at 4 n.2). We have lodged a copy with the Clerk. /2/ Three days before the 20-day grace period expired, petitioner brought suit in the United States District Court for the District of Columbia seeking declaratory and injunctive relief and an order quashing the EEOC's subpoena. J.A. 4-14. /3/ The court of appeals also affirmed the district court's decision not to dismiss or stay this action in deference to petitioner's anticipatory District of Columbia suit. Pet. App. A14-A20. That aspect of the decision is not at issue before this Court under the Court's limited grant of certiorari. /4/ See, e.g., C. Byse & L. Joughin, Tenure in American Higher Education: Plans, Practices and the Law 9 (1957) ("plans and procedures (relating to tenure) indicate a bewildering assortment of criteria and procedures governing acquisition and termination of tenure"); Faculty Tenure, supra, at 2-3 ("On every aspect of tenure * * * the range of variations among the 2600 institutions of higher education (and sometimes even within institutions -- from division to division or even department to department) is enormous."). Though tenure is very widespread in institutions of higher education, it is not universal. See R. Chait & A. Ford, Beyond Traditional Tenure 13-66 (1982). In recent years, the benefits and costs of tenure have been the subject of some debate. Faculty Tenure, supra, at 13-20; R. Chait & A. Ford, supra, at 4-12. /5/ Peer review is not universal. R. Miller, supra, at 110. In addition, some studies have questioned the objectivity of peer review. See, e.g., L. Lewis, Scaling the Ivory Tower: Merit and Its Limits in Academic Careers 51-76 (1975); Bergman, Peer Evaluations of University Faculty, 14 C. Student J. 1 (Fall 1980). It would be unwarranted to assume that peer review systems in institutions of higher education invariably conform to the ideal set out in briefs filed by petitioner and its amici. /6/ These reports, the debates cited below, and the texts of the bills and amendments referred to are reprinted in a committee print: Staff of the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972). /7/ Indeed, the educational institution exemption encompassed only employees who performed work "connected with the educational activities of such institution." Section 702, 78 Stat. 255. /8/ See 118 Cong. Rec. 311 (1972) (remarks of Sen. Ervin) (EEOC would have power to "pass on qualifications of doctors of philosophy or professors of mathematics in all non-State colleges in the United States"); id. at 946 (remarks of Sen. Allen) ("Academic freedom which is so revered by liberal thought in this country, might very well be a thing of the past if this bill passes without this amendment and we would have the Equal Employment Opportunity Commission taking over the employment and promotion practices of colleges and schools throughout the country * * *."); id. at 4919 (remarks of Sen. Ervin) ("Federal judges, and members of the EEOC are not competent to pass on the qualifications of people who teach such abstract subjects as anthropology and other subjects in institutions of higher learning."). Plainly, these concerns were overstated. Nevertheless, it cannot be said that Congress was oblivious to issues of academic freedom or the desire of universities to avoid inquiry into tenure decisions when it eliminated the educational institution exemption. /9/ See, e.g., S. Rep. No. 415, supra, at 12 ("The Committee believes that it is essential that these employees be given the same opportunity to redress their grievances as are available to other employees in other sectors of business."); 118 Cong. Rec. 591 (1972) (remarks of Sen. Humphrey) ("I can find no reason why these institutions should enjoy a special immunity in their employment practices. There is nothing in Title VII to suggest that employment in educational institutions is any different from employment anywhere else. If anything, it is our schools which most affect the future development of this country, and should * * * be leaders in equal opportunity in all respects."); id. at 1992-1993 (remarks of Sen. Williams) ("(T)hese 4 million (employees of educational institutions) are no different from other employees in the Nation and deserve to be accorded the same protection. To continue the existing exemption for these employees would not only continue to work an injustice against this vital segment of our Nation's work force, but would also establish a class of employers who could pursue employment policies which are otherwise prohibited by law. * * * We must correct this important defect of Title VII immediately, and provide employees of educational institutions the same protections that we accord the rest of the Nation's workforce."). /10/ This Court has considered various interrelated elements of this scheme on a number of occasions. EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981); General Telephone Co. v. EEOC, 446 U.S. 318 (1980); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). /11/ Under the Commission's regulations, a charge must set forth, inter alia, "(a) clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." 29 C.F.R. 1601.12. The Commission's regulations allow it to insist on additional detail when appropriate to facilitate an investigation. The Commission may require the charging party to submit a further statement including (29 C.F.R. 1601.15(b)): (1) A statement of each specific harm that the person has suffered and the date on which each harm occurred; (2) For each harm, a statement specifying the act, policy, or practice which is alleged to be unlawful; (3) For each act, policy or practice alleged to have harmed the person claiming to be aggrieved a statement of the facts which lead the person claiming to be aggrieved to believe that the act, policy or practice is discriminatory. /12/ Similarly, the charging party may bring an action after it obtains a "right-to-sue-letter" from the Commission. The charging party has a right to such a letter if the EEOC has not concluded its investigation within 180 days of the filing of the charge. 42 U.S.C. 2000e-5(f)(1); 29 C.F.R. 1601.28. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 595-596 n.6 (1981). /13/ "Comparisons may be more difficult in the case of professional and academic employment decisions, but they may be essential to a determination of discrimination; and where they are, and where the evidence is available, they must be made." Namenwirth v. Board of Regents, 769 F.2d 1235, 1241 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986). See Jackson v. Harvard University, 111 F.R.D. 472, 475-476 (D. Mass. 1986); Orbovich v. Macalester College, 119 F.R.D. 411, 415-416 (D. Minn. 1988). /14/ Price Waterhouse v. Hopkins, 109 S. Ct. at 1791 (plurality opinion); id. at 1802 (O'Connor, J., concurring). See Sweeney v. Board of Trustees Keene State College, 604 F.2d 106, 112-113 (1st Cir. 1979), cert. denied, 444 U.S. 1045 (1980). /15/ Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir. 1984). /16/ Many of the reported cases appear to discuss tenure review materials in the course of determining claims of discrimination. E.g., Gutzwiller v. Fenik, 860 F.2d 1317, 1322-1323, 1326-1327 (6th Cir. 1988); Zahorik v. Cornell University, 729 F.2d at 89-91 (2d Cir. 1984). /17/ In this case, for instance, petitioner suggests that the Commission is engaged in a "casual inquiry" unsupported by "even one shred of evidence" of discrimination (Pet. Br. 31 n.31). Plainly, however, a sworn charge of sexual harassment and resulting retaliation by the complainant's Department Chairman cannot be denigrated as meaningless. /18/ That is clearly the relationship between the right of access that the first sentence of Section 11(1) confers on the NLRB -- a right to "any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question" (29 U.S.C. 161(1)) -- and the succeeding sentences of the Section. The NLRA's use of the term "relates to," as opposed to Title VII's "relevant to," has no interpretive significance. On their face, these phrases are synonymous. Courts asked to enforce subpoenas issued under the NLRA have applied the same standard, derived from United States v. Morton Salt Co., 338 U.S. 632, 653 (1950), that this Court invoked in EEOC v. Shell Oil Co., 466 U.S. at 72 n.26. See NLRB v. Martins Ferry Hospital Ass'n, 649 F.2d 445, 448 (6th Cir.), cert. denied, 454 U.S. 1083 (1981). /19/ Although the Court has never clarified the extent to which the First Amendment protects the institutional autonomy of academic institutions, we assume for purposes of this case that the First Amendment provides protection for a university's freedom to determine on academic grounds who will teach. The term "academic freedom" can refer to a variety of interests -- among them, the interest of students in deciding what they will study, see Board of Education v. Pico, 457 U.S. 853 (1982); Healy v. James, 408 U.S. 169, 180-181 (1972); Barenblatt v. United States, 360 U.S. 109, 112 (1959) (referring to "learning-freedom"); the interests of faculty members in deciding what to study and teach and in being judged solely on the basis of academic merit, see Keyishian v. Board of Regents, 385 U.S. 589 (1967); Cooper v. Ross, 472 F. Supp. 802, 804-808 (E.D. Ark. 1979); and the interest of members of the academic community in avoiding government regulation or judicial oversight, Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225-226 & n.12 (1985). The Court's decisions do not settle the extent to which each of these interests is entitled to constitutional protection, or, since they can be contradictory (id. at 226 n.12), their relative importance. As we shall elaborate, this case involves a conflict between two strains of academic freedom, the interest of institutional autonomy advanced by petitioner and the interest of individual faculty members in being considered for promotion on academic grounds without invidious discrimination. The concept of academic freedom was virtually unknown in this country until after the Civil War. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 Tex. L. Rev. 1265, 1265-1266 (1988); Finkin, On "Institutional" Academic Freedom, 61 Tex. L. Rev. 817, 822-829 (1983). See generally R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States (1955). Commentators have noted the distinction between two concepts of academic freedom: (1) principles governing relationships within the academic community that its members suggest should be adopted, and (2) legal principles derived from the Constitution. See Metzger, supra, 66 Tex. L. Rev. at 1267-1322 (comparing the "professional definition" and "constitutional definition" of academic freedom); Finkin, supra, 61 Tex. L. Rev. at 841 n.94 ("There is an annoying tendency among some legal commentators to treat academic freedom as arising full blown out of the first amendment, like Athena out of Zeus' head. * * * The law of academic freedom involves less the creation of novel first amendment arguments than the more subtle (and as yet imperfectly realized) process of constitutional assimilation of an older, largely nonconstitutional idea."). /20/ Accord, e.g., Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980); Kunda v. Muhlenberg College, 621 F.2d 532, 547-548 (3d Cir. 1980). /21/ The issue in a Title VII case arising from a claim of intentional discrimination is whether the persons who made an employment decision did so on impermissibly discriminatory grounds. See Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1785 (1989) (plurality opinion); id. at 1795 (White, J., concurring in the judgment); id. at 1804-1805 (O'Connor, J., concurring in the judgment); id. at 1807, 1813 (Kennedy, J., dissenting). Thus, a person who submits a written evaluation that contains evidence of bias but does not participate further in the decision is not even a potential witness; his or her intention is immaterial. The issue is whether any such "discriminatory input" (id. at 1804 (O'Connor, J., concurring in the judgment)) sufficiently affected the outcome of the decision. Of course, to the extent that fear of exposure leads either reviewers or decisionmakers to examine their judgments to avoid discrimination, the possibility of disclosure advances both the purposes of Title VII and the university's interest in basing tenure decisions on academic merit. Petitioner argues that disclosure will result in more arbitrary, and potentially more discriminatory, tenure determinations. Pet. Br. 36. The Court rejected an analogue of that contention in Herbert v. Lando, 441 U.S. 153, 174 (1979), saying that exposure to liability and inquiry would give the press "more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion." In any event, Congress made the decision to extend Title VII to universities, and the wisdom of that choice is not subject to reexamination by the courts. /22/ We have lodged a copy of this dissertation with the Clerk served copies upon counsel. /23/ Another conclusion of the Bednash study undermines "the widespread assumption that selectivity requires confidentialty." G. Bednash, supra, at 322. Ms. Bednash found that "(t)he degree of selectivity evidenced in (the surveyed) institutions is not related to the degree of access available to tenure candidates. * * * Or to put it in reverse form, the data indicate conclusively that confidential tenure review processes do not increase the degree of selectivty exercised by the college." Ibid. See also Paul v. Leland Stanford University, 46 Fair Empl. Prac. Cas. (BNA) 1350, 1351 (N.D. Cal. 1986) ("(I)t is not clear that an assured cloak of secrecy improves the quality of decision-making or is an essential prerequisite to acquiring thoughtful evaluations of the qualifications of young academics."). /24/ Indeed, petitioner's amici are in disagreement on this point. See Harvard Br. 23; Stanford Br. 8; AAUP Br. 13-14. /25/ See Herbert v. Lando, 441 U.S. at 170 ("the outer boundaries of the editorial privilege now urged are difficult to perceive"). /26/ In NAACP v. Alabama, 357 U.S. at 463-464, the Court took care to note that the leadership of the NAACP claimed no immunity from inquiry for its leadership: As shown by its substantial compliance with the production order, petitioner does not deny Alabama's right to obtain from it such information as the State desires concerning the purposes of the Association and its activities within the State. Petitioner has not objected to divulging the identity of its members who are employed by or hold official positions with it. It has urged the rights solely of its ordinary rank-and-file members. Accord Brown v. Socialist Workers, 459 U.S. at 90-91 (nondisclosure limited to contributors and recipients of campaign funds). /27/ Before the Commission will allow charging parties to review their files, it requires them to execute an agreement not to disclose the contents for purposes other than the pursuit of legal remedies under the Act. 1 EEOC Compliance Manual Section 83.4(c) (1982). In Stebbins v. Insurance Co. of North America, No. 82-1915 (D.D.C. Jan. 27, 1983), the EEOC obtained summary judgment dismissing a Freedom of Information Act claim initiated to obtain Commission investigation files by a Title VII complainant who had refused to sign an agreement not to disclose the information to third parties. There is no evidence that the Commission's procedures have been ineffective in controlling dissemination of confidential materials. /28/ We note that petitioner's argument is based substantially on affidavits that petitioner has lodged with this Court. Petitioner asserts that it was "precluded from presenting any affidavits or other evidence relating to" its claim that it had a First Amendment defense to the subpoena to the district court. Pet. Br. 7 n.6. The record does not support that assertion. When the Commission applied for enforcement of its subpoena, the district court entered an order to show cause requiring petitioner to present its defenses to the subpoena by a date certain. J.A. 1 (June 23, 1987 order). Nevertheless, in its written response to the order, petitioner elected to raise only procedural objections to the application for enforcement of the subpoena. C.A. J.A. 29-43. After arguing its First Amendment defense briefly to the district court in oral argument (C.A. J.A. 66-69), petitioner filed requests for documents and interrogatories inquiring primarily into the process through which the Commission had decided to deny its application for modification of the subpoena (C.A. J.A. 77-87). The order quoted in petitioner's brief to support its contention that it was denied a full opportunity to present its position on the merits was the district court's order refusing to compel compliance with those discovery requests. Pet. App. A35. Petitioner (which was pursuing an anticipatory lawsuit in the District of Columbia) made no effort to submit any factual material relevant to its First Amendment claim to either of the courts below until after the court of appeals had issued its decision. On July 8, 1988, it sought leave to submit its affidavits as an attachment to a petition for rehearing of the court of appeals' decision. In an order dated August 1, 1988, the court of appeals refused to receive petitioner's affidavits. See J.A. 3 (August 1, 1988 order). The affidavits are outside the record, and are not properly before this Court. /29/ In this respect, the Commission's authority to issue subpoenas is somewhat narrower than that conferred on some agencies. See EEOC v. Shell Oil Co., 466 U.S. at 64-65. /30/ Justice Powell described his opinion as an elaboration on a portion of the majority opinion that stated, similarly (408 U.S. at 707): (N)ews gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. /31/ Branzburg rejected the claim that a reporter "should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime that the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure." 408 U.S. at 680; see id. at 743 (Stewart, J., dissenting). The similarity to petitioner's position is striking. See Pet. Br. 45-46. /32/ In Shelton v. Tucker, supra, the Court held that a requirement that a teacher disclose "every single organization with which he has been associated over a five-year period" went "far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competence of its teachers." 364 U.S. at 487-488, 490. In Bates v. Little Rock, supra, municipalities claimed that they needed NAACP membership lists to ascertain the organization's liability for license taxes. The Court found a "complete failure" to show any connection between the inquiry and that purpose. 361 U.S. at 527. See also Sweezy v. New Hampshire, 354 U.S. at 251 ("nothing to connect the questioning of petitioner with (the) fundamental interest of the State" in self-preservation). /33/ As a result, the Commission has been unable to consider, among other things, whether that evaluation reflects a change of mind about Tung's qualifications that might correspond to her allegation of sexual harassment. /34/ Even those courts that have expressed support for a qualified privilege or balancing approach to tenure review materials have required their production when a university relies on them as a defense to a claim of discrimination. EEOC v. University of Notre Dame du Lac, 715 F.2d 331, 339 (7th Cir. 1983); Gray v. Board of Higher Education, 692 F.2d 901, 906 (2d Cir. 1982); Lynn v. Regents of the University of California, 656 F.2d 1337, 1346-1347 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982); Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 (4th Cir.), cert. denied, 434 U.S. 904 (1977); Zautinsky v. University of California, 96 F.R.D. 622, 625 (N.D. Cal. 1983), aff'd, 782 F.2d 1055 (9th Cir. 1985) (Table). Petitioner appears to concede that "if the university relies upon the confidential letters to justify its tenure decision, it often will be necessary to have those documents made available to the EEOC." Pet. Br. 46. But, quite inconsistently, it does not see this case as one calling for application of that principle. Ibid. /35/ An internal university grievance panel considered Tung's allegation that she was the victim of sex discrimination. Its report was filed in petitioner's District of Columbia action. For present purposes, it is telling that the panel deemed it appropriate to examine the tenure files on 11 recent favorable tenure decisions at petitioner's Wharton School, as well as Tung's file, in order to determine whether standards for tenure were being consistently applied. Report of Grievance Panel, at 3. By contrast, the subpoena at issue here sought five comparable files. /36/ Though petitioner's proposed balancing test is vague, some insight may be drawn from petitioner's citations (Pet. Br. 46) to EEOC v. University of Notre Dame, 715 F.2d at 338, United States v. Nixon, 418 U.S. 683, 708-713 (1974), and Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). Apparently, petitioner contemplates that the EEOC should be required to make a showing similar to that needed to justify disclosure of grand jury materials or communications between the President and his highest aides with respect to each piece of tenure review material. /37/ In keeping with the Act's emphasis on effective enforcement, the courts of appeals have refused to allow employers to burden subpoena enforcement proceedings with discovery and time-consuming litigation on threshold issues. See, e.g., EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983), cert. denied, 466 U.S. 936 (1984); In re EEOC, 709 F.2d 392, 402 (5th Cir. 1983); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 311 (7th Cir. 1981). In Tempel Steel, for instance, the Seventh Circuit explained that the role of a court asked to enforce a subpoena is "sharply limited" and continued (814 F.2d at 485): Such proceedings are designed to be summary in nature. * * * As long as the investigation is within the agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena * * *. If every possible defense, procedural or substantive, were litigated at the subpoena enforcement stage, administrative investigations obviously would be subjected to great delay. /38/ By contrast, in EEOC v. Notre Dame, 715 F.2d at 337, the Seventh Circuit openly rebalanced the interests whose relative importance Title VII lays to rest: It is clear that both parties before us have significant and substantial interests at stake. After weighing the respective interests, we recognize in this case a qualified academic freedom privilege * * *. As petitioner notes (Pet. Br. 48 n.49), courts that have applied a "balancing approach" have employed a similar methodology -- except that they do not even purport to identify the source of their authority to withhold relevant evidence from the party seeking it. See Gray v. Board of Higher Education, 692 F.2d at 904-905. /39/ The fact that petitioner offers confidentiality to participants in its tenure review process does not enhance its privilege claim. "No pledge of privacy nor oath of secrecy can avail against demand for the truth." Branzburg v. Hayes, 408 U.S. at 682 n.21 (quoting 8 J. Wigmore, Evidence Section 2286 (McNaughton rev. 1961)). /40/ The Court recognized that privilege when it issued Fed. R. Evid. 509, 56 F.R.D. 183, 251 (1972), a rule which ultimately did not take effect. By contrast, neither the Advisory Committee, the Judicial Conference, nor this Court suggested that a federal privilege should be recognized for tenure review materials. See United States v. Gillock, 445 U.S. 360, 367-368 (1980). /41/ In University of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983), the court held that meetings on a professor's suitability for tenure were subject to the State's open meetings act. Compare Pet. Br. 29 (relying on Alaska law to support its claim for a qualified privilege). /42/ The court declined to require production of an investigatory file pertaining to the plaintiff and files relating to the professor who had allegedly defamed the plaintiff, finding that they were not directly relevant to the claims in issue and that the privacy interest recognized by the state constitution took precedence over the plaintiff's need for discovery. /43/ Statutes protecting health professionals who participate on peer review committees (see Pet. Br. 30) obviously reflect no legislative judgment concerning the importance of confidentiality for tenure determinations. In Branzburg v. Hayes, 408 U.S. at 689 & n.27, 17 States had enacted legislation extending a privilege to newsmen as such.