The Scholar: St. Mary's Law Review on Race and Social Justice


American courts should cease allowing the academic deference doctrine to interfere with tenure decision cases and treat tenure decisions the same way they treat any other employment discrimination case. Unlike recent court precedent that holds that summary judgement and judgement as a matter of law should not be granted when the employer’s defenses are vague and subjective, or when they heavily rely on testimony of interested parties, this principle has yet to be applied to a plaintiff in a tenure case. The Court of Appeals for the Second Circuit provided five reasons for distinguishing between tenure decisions and regular employment decisions, however, none seem to genuinely distinguish the two decisions. Though higher education’s exemption from Title VII of the Civil Rights Act of 1964 ended in 1972, universities continued to receive deferential treatment and some courts even held that some peer view materials fell under a qualified privilege of academic freedom. In 1990, while the Supreme Court did refuse to recognize a qualified privilege for peer review materials, the Court did not address the issue of redacting, leaving many to wonder if redaction will become the new privilege used to bar recovery against universities. Laura Weintraub, in an article for the Columbia Journal of Law and Social Problems, argued that redaction should be allowed when utilizing a balancing test to preserve academic freedoms, best evaluate candidates, and to prevent a chilling effect on candor. However, no matter the persuasiveness of these points, both congressional intent and the preservation of the integrity of academic institutions weigh heavily in favor of not allowing redaction in tenure decision cases. Though it is likely impossible for a court to distinguish between competing views of academia, there is no better reason to force universities to make clearly objective a process that has been for so long entirely subjective.

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St. Mary's University School of Law



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