Dixon v. Rutgers, The State University of New Jersey

Decision Date24 February 1987
Citation521 A.2d 1315,215 N.J.Super. 333
Parties, 52 Fair Empl.Prac.Cas. (BNA) 1592, 37 Ed. Law Rep. 1218 Ruth F. DIXON, Respondent, v. RUTGERS, the STATE UNIVERSITY OF NEW JERSEY; Edward J. Bloustein, President; Russell J. Fairbanks, Provost; Walter J. Gordon, Dean, Appellants.
CourtNew Jersey Superior Court — Appellate Division

Aron M. Schwartz, Morristown, for appellant (Vogel, Chait, Kimmel, Schwartz & Collins, Aron M. Schwartz on the brief).

Nancy Kaplen Miller, Deputy Atty. Gen., for respondent (W. Cary Edwards, Atty. Gen., attorney, Andrea Silkowitz, Deputy Atty. Gen., of counsel, Nancy Kaplen Miller, on the brief).


The opinion of the court was delivered by


This interlocutory appeal presents the novel question of whether an academic freedom privilege should be formulated to protect the confidentiality of material contained in promotion packets of members of the faculty of Rutgers, The State University.

By leave granted, Rutgers appeals from the denial of its motion to preclude the use of such material in an administrative proceeding wherein the Division of Civil Rights (DCR) found that probable cause existed for the claim that a faculty member had been denied a promotion from assistant professor to associate professor because of sex discrimination. 1 In permitting the evidentiary use of this confidential material, under appropriate protective restrictions, the Administrative Law Judge rejected the asserted privilege and also concluded that such use was not precluded by the terms of a collective bargaining agreement as incorporated in complainant's employment contract. We agree and affirm.

Dr. Ruth Dixon (Dixon), a black female, was hired by Rutgers in 1971 as an assistant professor and chair of the Educational Opportunity Fund Instructional Department at the Camden campus of the College of Arts and Sciences. After the completion of her fifth year of employment, Dixon was notified that she would automatically be evaluated for tenure and promotion to associate professor during the 1976-1977 academic year. If tenure were not granted, she would receive a one-year terminal contract as a lecturer. Pursuant to university procedures, Dixon was evaluated by the Ad Hoc Committee, the Appointment and Promotions Committee and the Dean of the college and was unanimously recommended for tenure and promotion. Her promotion packet was then forwarded to the Promotion Review Committee (PRC). This committee, appointed by the university president, reviews all evidence previously considered in connection with a proposed promotion and granting of tenure, including the confidential letters of recommendation from sources outside the university, and then submits its recommendations to the president. The PRC declined to recommend Dixon for promotion and tenure because of "insufficient evidence of distinction in teaching, creativity and research." When reminded that Dixon had no teaching responsibilities by which distinction could be evidenced, the committee reconsidered her application for promotion and concluded that she showed "insufficient evidence of research and scholarly activities expected of a faculty member in Academic Foundations" to warrant a recommendation for promotion and tenure.

The day before Dixon's review by the PRC, the committee considered the promotion packets of Henry Eng (Eng) and William Jones (Jones), faculty members in Academic Foundation Departments on two other campuses. Eng, an assistant professor at Livingston, was recommended for tenure and Jones, an assistant professor at Newark, was recommended for tenure and promotion. The recommendations of the PRC concerning Dixon, Eng and Jones were thereafter adopted by the Rutgers' Board of Governors.

Dixon's rejection for promotion and tenure prompted her to file a complaint with the DCR claiming discrimination based on her race and sex. Following an investigation, which included an examination of the promotion packets of Dixon, Eng and Jones under a protective stipulation, the DCR found probable cause to credit the allegations of sex discrimination in the decision denying tenure and promotion to Dixon. However, noting that Eng was an oriental and Jones was a black, it found no support for the claim of racial discrimination. Prior to the issuance of these findings, Dixon had been awarded retroactive tenure by the Board of Governors. 2 The matter was then transmitted to the Office of Administrative Law for prosecution by the attorney general.

In denying Rutgers' prehearing motion to preclude the admission of the promotion packets, the ALJ concluded that neither the stipulation between counsel when the files were turned over to the DCR nor the terms of a collectively negotiated agreement between Rutgers and the Rutgers Council of the American Association of University Professors precluded the admissibility of the subject files. Further, that the confidentiality ascribed to the contents of the packets did not require their exclusion as evidence, particularly in view of their availability to Rutgers to demonstrate the claimed nondiscriminating reason for rejecting Dixon's application for promotion. The admission of the material also was deemed necessary because of its relevancy to a prima facie showing of unlawful discrimination and the unavailability from other sources of evidence of qualifications considered by the committee. However, the expected confidentiality of letters from outside sources were to be protected by the excision of the authors' names from the documents "so long as Rutgers did not place greater weight on one outside specialist over another because of reputation in the academic community."

In this appeal, Rutgers contends the materials are privileged against disclosure since a compelling public interest in maintaining their confidentiality heavily outweighs the asserted need for their use. It is urged that a qualified academic freedom privilege should be invoked to preclude the evidentiary use of the confidential material, as such protection would support the peer review system for faculty promotion and tenure, the reliability and integrity of which assertedly is dependent upon the confidentiality of both internal and external evaluations. Rutgers further contends that the minimal relevancy of these documents to the proceedings should not take precedence over the privilege they should enjoy. Additionally, the substantial deference required to be given to the academic judgments involved in promotion and tenure decisions assertedly should negate the claimed need for their admission. Finally, Rutgers argues that, in addition to being privileged, the confidential material is protected from disclosure by the express terms of the collectively negotiated agreement between the university and the American Association of University Professors as incorporated in Dixon's individual employment contract.

Consideration of the creation of a new privilege must begin with the premise that "all privileges ... are exceptional, and are therefor to be [discouraged].... The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges." 8 Wigmore, Evidence, (McNaughton rev. ed. 1961) § 2192 at 70-73. See e.g., Fellerman v. Bradley, 99 N.J. 493, 502, 493 A.2d 1239 (1985); State v. White, 195 N.J.Super. 457, 460, 480 A.2d 230 (Law Div.1984); Cf. Wylie v. Mills, 195 N.J.Super. 332, 337, 478 A.2d 1273 (Law Div.1984). As privileges do not further the ascertainment of truth but rather permit the concealment of relevant, reliable information, courts have been reluctant to expand or create new privileges in the absence of compelling reasons. In re Dinnan, 661 F.2d 426, 429-430 (5 Cir.1981), cert. den. 457 U.S. 1106, 102 S.Ct. 2904, 73 L.Ed.2d 1314 (1982). In addressing the issue of the judicial establishment of new privileges, the United States Supreme Court has stated that "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See also, State v. White, 195 N.J.Super. at 460, 480 A.2d 230. The exclusion of relevant evidence by the creation of a privilege is warranted only if the resulting public good transcends the normally predominant principle of utilizing all rational means for ascertaining truth. Trammel v. United States, 445 U.S. 40, 49, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980). While the authority of this court would encompass the formulation of a new privilege, see Hague v. Williams, 37 N.J. 328, 335, 181 A.2d 345 (1962), we are aware of the hostility on the part of the judiciary, in general, to recognize additional privileges. In re Dinnan, 661 F.2d at 430.

With these concepts in mind, we turn to the academic freedom privilege sought to be invoked by Rutgers. We are urged to establish this evidentiary privilege because, without confidentiality, the reliability and integrity of the peer review system used for faculty promotion and tenure assertedly would be seriously and substantially impaired, thereby undermining the excellence of the faculty and the consequent excellence of the university. It is argued that the attainment of such professorial quality is a societal value which transcends the search for the truth concerning the committee's action on Dixon's application for promotion.

There can be no question as to the worthiness of Rutgers' being staffed by an excellent faculty. Nor that, normally, the pursuit of such excellence should be furthered by a...

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11 cases
  • Dixon v. Rutgers, The State University of New Jersey
    • United States
    • New Jersey Supreme Court
    • May 25, 1988
    ...discovery of the peer review materials. We thus affirm the judgment of the Appellate Division as modified. Dixon v. Rutgers Univ., 215 N.J.Super. 333, 521 A.2d 1315 (1987). I. In 1971 Rutgers hired Dr. Ruth Dixon, a black female, as Assistant Professor and Chairperson of the Educational Opp......
  • Rochinsky v. State, Dept. of Transp.
    • United States
    • New Jersey Supreme Court
    • May 23, 1988
    ...discovery of the peer review materials. We thus affirm the judgment of the Appellate Division as modified. Dixon v. Rutgers Univ., 215 N.J.Super. 333, 521 A.2d 1315 (1987). I. In 1971 Rutgers hired Dr. Ruth Dixon, a black female, as Assistant Professor and Chairperson of the Educational Pag......
  • State v. Garcia
    • United States
    • New Jersey Supreme Court
    • January 21, 1993
    ...possible basis for withholding transcripts of investigative proceedings of State Board of Medical Examiners); Dixon v. Rutgers, 215 N.J.Super. 333, 521 A.2d 1315 (App.Div.1987) (rejecting University's argument that Evidence Rule 34 protects peer-review materials used for tenure evaluations)......
  • Gail D., Matter of
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 16, 1987
    ...declined to do so. This court has most recently considered the question of a judicially-created privilege in Dixon v. Rutgers, 215 N.J.Super. 333, 521 A.2d 1315 (App.Div.1987). In the context of an academic freedom privilege asserted in a civil rights case, we stated: Consideration of the c......
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