Rubin v. Regents of University of California

In Rubin v. Regents of University of California, 114 F.R.D. 1 (N.D. Cal. 1986), a federal district court rejected defendants' argument that an "academic privilege" permits them to avoid disclosing the identities of peer evaluators in the tenure review process. Instead, the court held that the "plaintiff's need for the disclosure outweighs the university's interest in confidentiality in this case." Id. at *11.

The court explained:

First, the burden of establishing justification for a privilege is on the party who attempts to create or invoke it "because privileges generally operate to the disadvantage of the process of uncovering the truth." Paul, 39 E.P.D. at 41,370. In this case, there is not sufficient evidence to show a close link between confidentiality and the ability to find "excellent" professors. As the court points out in Paul,

It can be non-laughably argued that reviewers who know that their identity might be disclosed will neither refuse to comment nor retreat into useless abstractions or disingenuous flattery, but, instead, will articulate their opinions, and describe the bases for them, with greater precision and better developed logic.

Second, plaintiffs allege that the letters that they are interested in were "unsolicited." That would mean that the university did not promise the writer confidentiality in order to obtain the letters. That fact undermines defendants' arguments about the crucial role promises of confidentiality play in the faculty selection process and for the particular requested material in this case.

Finally, to the extent the university does have an interest in confidentiality, plaintiffs' need for disclosure here outweighs that interest. Plaintiffs can "probably make out a prima facie case" of sex discrimination. Plaintiff is a member of a protected class; she appears qualified for the position sought, but was denied appointment where a man of allegedly similar qualifications received the appointment. As a result, plaintiffs intend to show discrimination by proof of the effects of the old-boy network. Alleged irregularities in the process resulted in the hiring of a male (who allegedly did not have the original expertise required) over a female (who allegedly did have the original expertise required). Those alleged irregularities could only be demonstrated through the identity of the evaluator, not by the substance of the evaluation. Thus, plaintiffs have shown a particularized need in this case for the identity of the evaluator.

Id. at *9 - *11.