Title VII and Academic Freedom: The Authority of the EEOC to Investigate College Faculty Tenure Decisions

This note discusses the impact that recognition of a privilege based on academic freedom has on aggrieved professors and the EEOC, and examines the justifications for providing protection to the peer review system. Part I of this note analyzes the concept of academic freedom. Part II discusses the scope of Title VII, first reviewing the elements of a typical tenure denial claim under Title VII, then analyzing the power that the EEOC possesses in enforcing Title VII, and the limits a federal court can place on this power. Part III contrasts the conflicting approaches of the circuits in enforcing EEOC subpoenas requesting confidential peer review materials. This note concludes that academic freedom should not insulate tenure deliberations from administrative and judicial review, and suggests that academic freedom is better served by allowing the EEOC and aggrieved professors to challenge most tenure decisions with full access to confidential peer review materials. Because there may be situations where a college does not base its tenure decision on peer review evaluations, however, courts should not automatically order the disclosure of these materials. Rather, courts should supervise EEOC investigations of tenure decisions and, where a college does not base its tenure denial on peer review evaluations, be willing to limit the EEOC's usually broad investigatory power by denying it access to these materials.