of Ethics Online Collection: None
A Preliminary Statement on Judicially Compelled Disclosure in the Nonrenewal of Faculty Appointments
The following statement, approved by Committee A and adopted by the Council at their meetings in November, 1980, addresses the issues posed in seeking disclosure of faculty members' positions in a discrimination complaint. These issues have gained national attention in recent months as a result of the imprisonment of Professor James Dinnan of the University of Georgia after he refused to comply with a judicial order to divulge his vote on the tenure candidacy of Professor Maija Blaubergs.
A dramatic episode arising at the University of Georgia presents complex and difficult questions. What follows expresses no judgment about the facts or the merits of that case, as to which we believe the academic community to be insufficiently informed.
We believe that the harsh action of imprisonment, which we deplore, has overshadowed the underlying issues: first, the necessity of proper procedures for rectifying discrimination; second, the proper scope of judicial compulsion in such cases, to which this statement is principally addressed.
Faculty members have the right to decisions on the renewal of their appointments free of impermissible considerations, such as considerations violative of academic freedom or prejudice with respect to race, sex, religion, or national origin. This Association has buttressed this principle by concluding that, in the event of an adverse decision on renewal, the faculty member should be advised of the reasons which contributed to that decision, have an opportunity to request a reconsideration by the decision-making body, and have available a standing hearing committee to entertain any complaint that an impermissible consideration played a role in the decision. Moreover, in the context of such proceedings the Association has recognized that in appropriate circumstances the participants in the decision-making process may permissibly be called upon to account for their actions.
At the same time, institutions ought to be free from impermissible external intrusions or constraints in making nonrenewal decisions. This freedom is claimed not only as a matter of prudence, resting upon the higher competence of those engaged in the enterprise to select their peers and the chilling effect upon that exercise of judgment engendered by external constraints, but as a matter of principle: individuals within the academy will not be free to exercise their academic freedom if the academy as a whole is not afiorded the proper measure of self-governance. Therefore, when litigation involves judicially compelled disclosure of the actions and motivations of the faculty participants in the nonrenewal process, the courts should recognize the value of maintaining institutional integrity.
We believe it inappropriate for a court to compel disclosure of the actions and motivations of the individual participants in a nonrenewal decision without first weighing the facts and circumstances asserted by the complainant. A judgment must then follow that those facts and circumstances raise a sufficient inference that some impermissible consideration was likely to have played a role to overcome the presumption in favor of the integrity of the academic process. That is, the inference must be sufficiently strong to defeat the claim, albeit a qualified one, that faculty members may properly assert to a degree of privilege that shields their actions and thought processes from judicial inquiry. Among the factors that a court may properly weigh in making that determination are the adequacy of the procedures employed in the nonrenewal decision, the adequacy of the reasons offered in defense of the decision, the adequacy of the review procedures internal to the institution, statistical evidence that might give rise to an inference of discrimination, factual assertions of statements or incidents that indicate personal bias or prejudices on the part of the participants, the availability of the information sought from other sources, and the importance of the information sought to the issues presented.
We reiterate, however, that this statement of general principle does not represent a judgment on whether or not a proper weighing of these factors occurred in the particular case that gave rise to our concern.
