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"The university raises here essentially two claims. First, it urges us to recognize a qualified common-law privilege against disclosure of confidential peer review materials. Second, it asserts a First Amendment right of `academic freedom against wholesale disclosure of the contested documents.'"
"Indeed, if there is a `smoking gun' to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in peer review files..."
"Petitioner contends that it exercises this right of determining `on academic grounds who may teach' through the process of awarding tenure. A tenure system, asserts petitioner, determines what the university will look like over time. `In making tenure decisions, therefore, a university is doing nothing less than shaping its own identity.'"
"In addition to being remote and attenuated, the injury to academic freedom claimed by the petitioner is also speculative. As the EEOC points out, confidentiality is not the norm in all peer review systems... Moreover, some disclosure of peer evaluations would take place even if petitioner's `special necessity' tests were adopted. Thus, the `chilling effect' petitioner fears is at most only incrementally worsened by the absence of a privilege. Finally, we are not so ready as petitioner seems to be to assume the worst about those in the academic community. Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples and illustrations in order to deflect potential claims of bias or unfairness. Not all academics will hesitate to stand up and be counted when they evaluate their peers."
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