The Volokh Conspiracy
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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.”
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….
