Scharf v. Regents of University of California

• Decision Date: 04 October 1991
• Docket Number: No. A044630,A044630
• Citation: 234 Cal.App.3d 1393,286 Cal.Rptr. 227
• Court: California Court of Appeals Court of Appeals
• Parties: , 69 Ed. Law Rep. 1140 Peter SCHARF et al., Plaintiffs and Appellants, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Page 227

286 Cal.Rptr. 227

234 Cal.App.3d 1393, 69 Ed. Law Rep. 1140

Peter SCHARF et al., Plaintiffs and Appellants, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. A044630.

Court of Appeal, First District, Division 2, California.

Oct. 4, 1991.

Review Denied Jan. 8, 1992.

Robert J. Bezemek and Robert S. Gerstein, Santa Monica, for plaintiffs and appellants.

James E. Holst, Gary Morrison, Philip E. Spiekerman, David M. Birnbaum, Melvin W. Beal, University of Cal., Oakland, David E. Feller, Berkeley, for defendants and respondents.

KLINE, Presiding Justice.

This action, which presents both statutory and constitutional challenges to the process of academic peer review employed by the University of California, requires us to determine the extent of the autonomy granted the University under article IX, section 9 of the California Constitution.

STATEMENT OF THE CASE

Appellants are the University Council, the American Federation of Teachers, and six present or former members of the University faculty denied tenure or promotion. Respondents are the Regents of the University and various senior administrative officials thereof (hereinafter collectively referred to as the University). Upon stipulation of the parties, the Council of University of California Faculty Associations was permitted by the superior court to formally intervene in the action and to unite with the University in resisting appellants' claims.

Appellants commenced the action by jointly filing a petition for writ of mandate and complaint. As amended, the petition alleged that by denying appellants complete access to information considered by the University in making tenure and other employment determinations the University deprived them of a meaningful opportunity to respond to criticism that resulted in adverse determinations, in violation of appellants' constitutional rights to privacy and due process of law and Education Code section 92612, ¹ which requires the University to provide its employees nearly complete access to their personnel files. The complaint sought an order directing the University to provide the disclosure required by section 92612 as well as injunctive relief and damages.

On May 30, 1986 the University moved for judgment on the pleadings, contending, as here relevant, that section 92612 is unconstitutional and that appellants failed to state causes of action on the privacy and due process claims. On November 25, 1986, the Alameda County Superior Court found the statute unconstitutional on its face and granted the motion as to that claim. The court denied relief as to the federal constitutional claims, finding that the University had failed to establish the absence of factual issues.

On June 13, 1987, the superior court granted the University's and intervenor's motions for summary adjudication of issues, concluding that the University's procedures relating to the evaluation and promotion of faculty violate neither the due process clauses of the California and United States Constitutions nor the right of privacy conferred under article I, section 1, of the California Constitution. ² Appellants thereupon dismissed those portions of the petition that had not been adjudicated by this order. After final judgment was entered, appellants filed timely notices of appeal.

FACTS ³

The process by which the University determines whether to grant tenure or promotion is initiated when the chairperson of the candidate's department notifies the candidate that a determination will be made and requests pertinent information. The candidate has the right to identify persons he or she believes might not objectively evaluate the candidate's qualifications or performance, and this information is preserved in the personnel review file. The chairperson solicits letters from persons deemed qualified, including a reasonable number nominated by the candidate. This solicitation must include not only opinions of the candidate's departmental colleagues but also the views of "distinguished extramural informants."

Before the department makes its decision, the chairperson must provide the candidate an opportunity to review his or her file, except that the candidate receives only an oral or written "comprehensive summary" of evaluations by persons who provided their views on the understanding they would be held in confidence.

After the department has made its recommendation, the chairperson forwards it and the candidate's file to the dean or provost of the appropriate college, school or division. The chairperson reports any significant evidence and differences of opinion which would support a contrary recommendation and the results of the vote of the department. The chairperson may also make an independent evaluation and recommendation.

The candidate is informed orally or, upon request, in writing of the departmental recommendation and of the "substance" of departmental evaluations. The candidate has the right to comment in writing on the departmental recommendation.

The matter is then reviewed by an ad hoc review committee nominated by the Committee on Academic Personnel and appointed by the Chancellor. The recommendation and report of the ad hoc committee is forwarded to the Committee on Academic Personnel, which adds its own comments and submits the file together with its recommendation to the Chancellor. The Chancellor then makes the final decision. The candidate has the right to require the Chancellor to state his reasons in writing, including "a comprehensive summary of the substance of the confidential documents in the personnel review file." ⁴

In the event tenure or promotion is denied, the candidate has the right to request the University Committee on Privilege and Tenure to review the decision. The system-wide by-laws of the Academic Senate provide that complaints to this Committee may be based only on allegations "that the procedures were not in consonance with the applicable rules and requirements of the University or any of its Divisions" or "that the challenged decision was reached on the basis of impermissible criteria, including (but not limited to) race, sex, or political conviction." While the Committee on Privilege and Tenure is empowered to determine the validity of complaints, it is "not ... empowered to reevaluate the academic qualifications or professional competence of the complainant." If, after investigation, the Committee decides to conduct a hearing, the complainant may be represented by counsel, may offer documentary evidence and may examine and cross-examine witnesses.

I.

The parties endeavor to persuade us either of the merits or the demerits of the process just described.

The University insists that, as stated in the Academic Personnel Manual, "[c]onfidential evaluations are ... necessary in order to make effective the continuing effort and obligation to preserve and increase the quality of the academic personnel of the University." The Manual states that without confidentiality "there is substantial likelihood that qualified evaluators would refuse to provide evaluations, or would provide bland and non-candid, and therefore far less useful evaluations." The University also claims that the process provides candidates access to the most essential information and an adequate means of reviewing adverse determinations. Finally, the University stresses that the challenged procedures are fully in accord with the standards advocated by the American Association of University Professors ("AAUP")--assertedly "the authoritative voice of the academic profession" ⁵--whose recommended procedures do not require disclosure of the text of peer evaluations. ⁶

Appellants advance a very different view, emphasizing the inadequacy of summary descriptions of evidence, as well as the fact that some crucial evidence--such as the separate letter of the chairperson of the department--is not even summarized by the University. Appellants suggest that nondisclosure protects and perpetuates discriminatory behavior, urging that a person under review cannot show a particular review is unfair or false, or that certain opinions deserve more weight than others, without knowing the identities of his or her evaluators. Additionally, appellants claim that reviewers have no reasonable expectation of confidentiality, as the danger of leaks is well known. Finally, appellants argue that openness in the academic review process prevails at many universities, which provide candidates for tenure and promotion the names of their evaluators and the actual text of their views, not just a summary. Appellants rely on studies indicating that reviewers rarely refuse to evaluate or hold back their criticism in open file systems and that the quality of evaluation improved at institutions that provided open access after previously refusing to divulge the identities of evaluators.

Sharing the salutary judicial disposition to yield to the judgment of academics regarding the assessment of scholarship, (see, e.g., Board of Curators, Univ. of Mo. v. Horowitz (1978) 435 U.S. 78, 90, 98 S.Ct. 948, 955, 55 L.Ed.2d 124; Megill v. Board of Regents of State of Florida (5th Cir.1976) 541 F.2d 1073, 1077; Faro v. New York University (2d Cir.1974) 502 F.2d 1229, 1231-1232; Johnson v. University of Pittsburgh (W.D.Pa.1977) 435 F.Supp. 1328, 1354; Lewis v. Chicago State College (N.D.Ill.1969) 299 F.Supp. 1357, 1360), we decline to evaluate the competing contentions just described, as the dispute is, at bottom, one of policy. Our analysis focuses narrowly upon the specific legal issues that have been raised. We begin with the statute addressed to peer review at the University.

II.

Section 92612, enacted in 1978, provides in subdivision (a) that "Every individual shall have the right of access to all personal information, as defined in subdivision (b) of section 1798.3 of the Civil Code, contained in any employee record which is maintained by...