Free Speech

Tenure Review Files Can't Be Sealed in Academic Employment Discrimination Lawsuit

“Evidence about Penn’s treatment of other tenure candidates will be at the heart of the parties’ arguments.”

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From Veikos v. Univ. of Pa., decided Wednesday by Judge Joshua Wolson (E.D. Pa.):

For the public to have confidence in the work of the courts, it must have as much visibility as possible into the work that the courts do. After all, "[t]he Judicial Branch belongs to the American people," and "Americans cannot keep a watchful eye … if they are wearing blindfolds." Motions to seal limit that visibility. For that reason, this Court has emphasized the showing that a party must make before the Court will seal judicial records.

The Trustees of the University of Pennsylvania has asked the Court to seal certain exhibits that the parties will submit in support of their motions for summary judgment. The documents in question will be the heart of the case—comparator documents that demonstrate whether Penn treated Plaintiff Catherine Veikos differently from similarly situated tenure candidates. Penn has not demonstrated that its interest in maintaining the secrecy of these documents outweighs the public's right of access…..

Ms. Veikos claims that Penn discriminated against her on the basis of her gender and familial status when it denied her tenure. She bases her argument in part on Penn's treatment of other tenure candidates who she argues are comparators. Like most institutions, Penn conducts a broad review of tenure candidates' work before making the decision to award tenure. It asks for input from internal and external reviewers. When Penn solicits input from an external reviewer, it explains its policy that "external letters of evaluation are held in confidence. However, in the event of litigation or a government investigation, the candidate or others may gain access to the information contained in these letters."

Both parties have told the Court that summary judgment briefing will include the tenure review files for Ms. Veikos and other tenure-track candidates at Penn's School of Design. These files contain external reviewers' letters and other documents where reviewers provide their thoughts on the merits of a tenure candidate. Penn asks the Court to place these tenure review exhibits under seal, arguing that without confidentiality, the integrity of future tenure reviews would be at risk. Ms. Veikos opposes Penn's motion….

The public's right of access is meant, in part, to "provide the public with … a better perception of [the judicial system's] fairness." Public access "promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court." Accordingly, the "strongest arguments for access apply to materials used as the basis for a judicial decision of the merits of the case, as by summary judgment."

Because Ms. Veikos brings a discrimination claim, she must produce evidence that similarly situated persons who are not members of the protected class were treated more favorably, or that the circumstances of her termination give rise to an inference of discrimination. Evidence about Penn's treatment of other tenure candidates will be at the heart of the parties' arguments—a fact that both parties have acknowledged in their submissions. Because the documents will be at the core of the parties' arguments, the public has a particularly strong interest in access to the files….

The tenure review files are not the types of information that courts protect. At a high level, the documents constitute comparator evidence. Penn has not shown that courts normally protect comparator evidence by placing it under seal. Nor, in the Court's experience, is comparator evidence the type that usually gets protected. More specifically, Penn has not shown that tenure review files are the type of information that courts will protect with a sealing order. Indeed, the fact that Penn alerts external reviewers to the possibility that the candidate or "others" might get access to the information in the event of litigation demonstrates that it is information that could be disclosed to third parties, including the public, in litigation.

Penn points to cases where courts protected personnel and peer-review documents during discovery to show these exhibits contain the type of information courts seal. Yet courts apply a different standard when they preserve the confidentiality of discovery materials and when they preserve the confidentiality of court documents, as is the issue here. The standard for sealing documents is analytically distinct from, and more rigorous than, the standard for preserving confidentiality in of discovery materials….

Penn does not seek to seal these exhibits to protect personally identifying information of the reviewers. Rather it seeks to shield from public view the substance of the tenure reviews themselves. Without similar concerns about personally identifying information, the exhibits before this Court implicate a different balance of interests than those at issue in Goode….

Penn also has not shown a clearly defined injury from the disclosure of the tenure review files. It suggests that the public disclosure of the files would chill future tenure reviews because external reviewers might not participate. But that broad allegation of harm does not satisfy Penn's burden. It bears repeating that Penn has consistently warned external reviewers that their reviews might be disclosed in litigation. That warning has not chilled reviewers' participation.

Penn offers no reason to think that disclosure here—the very event about which Penn cautions—will have a greater impact on reviewers' willingness to participate in the tenure review process. While no single formula will satisfy this burden, the Court needs some detail about the harm that will result. For example, Penn offers no statements from frequent reviewers stating they will alter future reviews of tenure candidates. Nor does Penn offer any evidence reviewers have previously brought concerns about the possibility of reviews being made public during litigation. In fact, the dearth of cases addressing this issue suggests that the possibility of public disclosure is a remote one that is unlikely to influence any potential external reviewer….

The common law right of access to judicial records is not absolute, but it is not easily overcome either. Penn has not carried the heavy burden necessary to prevent the public from accessing the judicial records on which they will rely to mount their arguments. Thus, the Court cannot seal these documents from public view and will deny Penn's motion. An appropriate Order follows….

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  1. In my experience the greatest sensitivity of writers’ to disclosure of the contents of letters is the frequent request of universities to ask for direct comparison of the candidate with others in the field.
    The chilling effect is to breed letters that are less candid on their face and written in a way to drive the review boards into reading what has not been said in a letter, in other words to devalue the letter which is frequently the most important source of data about what the candidate (rather than collaborators) has done.

  2. I have an IANAL-ignorant comment/question/idea regarding all these sealed cases.

    My main problem with sealing is that it makes it all too tempting for corruption to leak in, for judges to let down their guard against personal bias. I want them to ultimately fear public scorn for biased decisions. I assume appeals court judges have full access, but even then, they may be tempted to go easy on a biased colleague’s biased opinion if they know the sealed record will keep his biased opinion swept under the rug.

    Instead of fighting all these never-ending sealing cases individually, why not make the process self-correcting? Forbid appeals based on anything sealed, or better yet, forbid appealing any case which has any sealed components, other than the bare minimum like identifying minors, SSNs, account numbers.

    This has to be split for prosecution and defense, so that the prosecution can’t seal something against the defendant’s wish and block the defendant from appealing.

    I realize you have reported some cases where both sides wish to seal something, and this might not be much of a deterrent in those cases. But it would still be some, since if either party backslides on whatever promises they made, the other would have no recourse because they agreed to the sealing.

    Maybe forbid appeals altogether if both parties agreed to seal anything, but otherwise only forbid using sealed data in appeals.

    1. And no backsies. Once your sealing has taken affect, whether it is later undone on appeal or whether you have second thoughts and undo the sealing, that particular element is forever forbidden as the basis of appeals.

    2. I will state at the outset that this post covers in part areas that I do not practice and are based on what I hear from other attorneys.

      Sealing is sometimes necessary. Especially in cases involving trade secrets, trademark/copyright/patent infringement, tortious interefence, etc., making the conduct public could jeopardize the Plaintiff. Let’s say a drug manufacturer is alleging that someone is selling illegal knockoffs of their lucrative drug, important in that case when be chemical composition of the drugs at issue. If everybody knows the chemical composition then everyone will be making knockoffs when able because they won’t need to use any R&D to determine the right combination.

      My biggest problem with sealed cases is the tendency to make unsubstantiated accusations knowing that everything will remain anonymous. This is especially true in divorce cases where the parties are anonymous due to the fame of at least one of the parties. A good Judge will take a more skeptical view of bare accusations in sealed documents and even if a Judge incorrectly afforded too much weight to sealed documents it is unlikely you will get an appeals panel that will unanymously sweep it under the rug (except maybe the 8th Circuit with a Republican appointee District Judge because all but 1 non-Senior Judge on the 8th Circuit are Republican appointees. There are left leaning courts, but every other Circuit has the possibility of getting a panel that a majority of the Judges are not appointed by a Democrat).

  3. For this particular example, how about redact the authors? Who they are says nothing about how they did or did not treat the plaintiff differently than other, similarly situated, individuals.

    Although I suppose an academic setting like this it might not be that difficult to figure out who many of them are “I worked with XXX between 2007 and 2009 on YYY”, there likely can’t be that many such people.

  4. There was a time when Sweeney v. New Hampshire was regarded as a sort of parallel case to Griswold v. Connecticut, both cases interpretable as holding that there are certain traditional institutions – universities in the one case, marital families in the other (religious institutions could also be considered in this caregory) – so intertwined in passing ideas to the next generation that if government were allowed to interfere with them, the First Amendment would become a nullity because the government could indoctrinate the next generation by asserting sole control over who gets to teach it.

    It is remarkable how this argument has waned. At the time of the Civil Rights act, the doctrine had enough force that Congress didn’t dare regulate universities directly; it instead conditioned regulation on receipt of federal funds. The idea was that Congress entirely lacks power to regulate who may teach. Universities are a privacy institution, not like commercial businesses.

    In the 1980s, the University of Pennsylvania confidently argued, based on the doctrine, that its tenure files should be treated like consultations with lawyers, doctors, and clergy and exempt from subpoena entirely. The Supreme Court disagreed.

    And now universities’ previously nearly impregnable right to privacy in deciding who shall teach doesn’t even get modest judicial deference! Universities deliberations are treated as commercial transactions the same as any other business!

    What this illustrates, of course, is the complete separation of what became of the Court’s “privacy” jurisprudence from any claim to having grounding in the First Amendment.

    1. In the new order, sex is made sacred. The transmission of serious ideas, not so much.

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