Ruling Could Inhibit Peer Review Candor

Reviewers will have to think twice, now that tenure evaluation letters can be used as evidence in bias cases Academic scientists who are denied tenure and then sue universities on the basis of discrimination will find little, if any, information to support their case in written evaluations submitted by their peers. In fact, tenure candidates and the universities considering them will now have difficulty even recruiting researchers to honestly evaluate colleagues' work. These, scientists and school administrators say, are the two most likely effects of a controversial Supreme Court decision early this year that stripped universities of their privilege to hold confidential outside letters of recommendation - the backbone of all tenure review files. Now that such letters can be used as evidence by tribunals deciding discrimination cases, researchers will think twice about writing candidly, or even about writing at all, they say. "People are going to be less likely to speak their mind in letters, as a result of this decision," says Charles Thoman, chairman of the chemistry department at the Philadelphia College of Pharmacy and Science. "The result is that letters will come to mean nothing." What is worse, he adds, is that "people who maybe shouldn't be tenured will be tenured." The Supreme Court's unanimous decision, handed down in January, orders that universities cannot withhold once-secret peer review documents from the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates employment discrimination complaints. The case arose after the University of Pennsylvania refused to release to EEOC letters concerning a former associate professor of management who was denied tenure and subsequently appealed to the agency. After a lower court ordered the university to turn over the documents, the university took its case to the Supreme Court, where it unsuccessfully argued that disclosing tenure files would infringe on what it called its First Amendment right of academic freedom to choose professors. In what many legal experts consider a harshly worded opinion, the Court responded saying that "If there is a `smoking gun' to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in review files." While the Court's opinion addressed only EEOC's right to access reviewers' comments, it does set a precedent for other interested parties - including other government agencies, universities, and even the rejected candidates themselves - to obtain reviewers' comments. This, lawyers say, opens up the possibility of individual civil lawsuits against reviewers. And it's this possibility that concerns Lawrence Abele, chairman of the biology department at Florida State University, where a state statute already allows candidates to review their files. "Given the litigious society we live in these days, it's difficult enough getting a candid letter [of recommendation]," Abele says. "I think the Court's ruling will only further the problem of getting a letter that is candid enough to be valuable [to a tenure committee]." Tenure review boards and university administrators aren't the only ones affected by the high court's decision. Some observers say that the ruling has the potential to harm the very people it was meant to benefit; namely, the tenure candidates themselves. In the scientific arena, for example, the decision could conceivably result in the publicizing of comments concerning proprietary research data contained in letters or written tenure review committees. If information regarding such research was made public, it's likely that private and industrial funding for such projects would fall off, says Carl Leopold, an adjunct professor in the plant biology and agronomy departments at Cornell University. And the people this would hurt most are nontenured researchers who depend on private sources of funding. "It's almost always junior grade people who are likely to be working on proprietary research because they are the ones most desperate for money," Leopold says. "It's the researcher who is not yet the bright and shining star with the National Science Foundation or the National Institutes of Health that is most likely to go to industry and/or the military for research dollars." According to Barbara Lee, an attorney and associate professor of industrial relations and human resources at Rutgers University, the deliberations of college committees could include references to proprietary research and technologies. But, generally, she says, "These things aren't written down. But if someone were careless or loose-lipped, it is possible that information about proprietary research could escape." While such a scenario is possible, it isn't likely to occur, says Edward MacCordy, associate vice chancellor for research at Washington University and the president of the Association of University Technology Managers. First, MacCordy says, federal laws already protect the privacy of classified military research. And, second, very little industry-sponsored proprietary research is conducted on college campuses. "I can't see where any sensitive research information could get involved in tenure files," MacCordy says. Still, he believes the Court's decision will dissuade reviewers from being forthright. "For tenure decisions to be made requires candidness, and nobody is going to be very candid," MacCordy says, adding that in the absence of guaranteed confidentiality for peer reviews, universities will now be forced to hire the hard way. "Universities will hire a person first and find out about them only after they've done so," he says. For letters written by and about scientists, the impact could be less blunt, however, according to Lee. She says that academics in the sciences - more so than their peers in other disciplines - are characteristically more open and accustomed to being in the public glare. "As a result, scientists may be less affected by the Court's decision." Julia King is a freelance writer based in Ridley Park, Pa.

Ruling Could Inhibit Peer Review Candor

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