Sex and the Tenure Track

WITH an important forum in the United States Supreme Court, academic freedom is bucking hard up against individual rights. Hanging in the balance is the long-cherished college tenure system. ``Publish or perish'' is the dictum for faculty survival at most universities. A jury of peers usually decides whether a junior teacher passes intellectual muster to receive tenure. Doubtless other factors figure in this review. Universities guarantee confidentiality to assessors in the hope that this will encourage candor.

But there are questions raised from this process. Among the most important: How can possible prejudice or discrimination against a specific candidate be uncovered under such a closed system?

This issue is being raised by Rosalie Tung, a member of the faculty of the University of Pennsylvania's Wharton School, who filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) when she was denied tenure by the school.

Ms. Tung said she was a victim of sexual harassment by a senior faculty member. She suspects he gave her an unfavorable evaluation when she resisted his amorous advances. Several male candidates for tenure with lesser credentials were successful where she was not, she says.

EEOC subpoenaed the university's review documents to try to get to the bottom of these charges, but the school refused to comply with this order, claiming academic freedom and privacy. The federal agency then brought the matter to the judicial forum, and both a trial court and an appellate tribunal agreed that the evaluations should be released. The case now is before the nation's highest court. It is the first of its kind to reach this level.

The Tung challenge has sparked broad interest from major universities - including Harvard, Princeton, Stanford, and Yale - who have joined the University of Pennsylvania's arguments that peer review materials must be protected as confidential under the concept of academic freedom. They insist that disclosure could compromise this principle. The EEOC, at the least, should justify its demand for access, they say.

But the EEOC holds that federal law requires broad scrutiny to determine whether an educational institution has engaged in illegal discrimination. And the recognition of even qualified privilege by universities could compromise its thrust against bias, it says. The National Organization for Women's Legal Defense and Education Fund supports this position.

Among the issues is whether disclosure would have a chilling effect on tenure review - causing faculty members to be cautious and less than completely honest in their evaluation of candidates. US Solicitor General Kenneth Starr, who presented the case to the Supreme Court for the EEOC, insists that confidentiality is not vital to the tenure process. He cited a study that shows little difference in results among schools that insist on complete confidentiality and those that don't.

There are valid arguments on both sides of this dispute. Harassment and discrimination are an affront to academic freedom and cannot be tolerated. At the same time, the integrity of the process is preserved by keeping it discreet and not subject to open debate.

In this case, the Supreme Court may well feel that lower courts should work out guidelines to assess whether illegal bias has been present, without opening files to broad public scrutiny. Rosalie Tung deserves a fair hearing but it need not be at the expense of a system that usually works well.