Tenure: Are Confidential Peer Evaluations Protected in Lawsuits?

May 2016

A recent federal decision questions the confidentiality of peer evaluations.

An essential part of a promotion and tenure process is the solicitation of internal and external written evaluations of a candidate. Because of the importance of obtaining candid and useful evaluations, MIT provides these assessments with the “highest degree of confidentiality legally possible.” See Policies & Procedures Section 3.5, Confidentiality and Indemnification. A recent federal decision by a Massachusetts court puts into question how confidential peer evaluations actually are.

In Theidon v. Harvard University, Civ. Action No. 15-cv-10809-LTS (D. Mass. Feb. 4, 2016), a federal court denied Harvard University’s request to protect the names of academic scholars who provided evaluations in connection with a tenure review process of an associate professor of Anthropology. 

Kimberley Theidon, now a professor at Tufts University, sued Harvard alleging that she was denied tenure in 2013 because she is a woman, and in retaliation for comments she posted on the Harvard Crimson website supportive of students who had complained about Harvard’s response to Title IX issues on campus.  As part of that lawsuit, Theidon requested that Harvard turn over her tenure review file, including letters from scholars, internal and external, evaluating Theidon’s scholarship and comparing her achievements to other scholars in her research field.  While Harvard agreed to produce the tenure review file, it sought to shield the identity of those who provided letters evaluating her scholarship. Harvard also requested that the names of the scholars to whom Theidon was compared be redacted.  Harvard argued that disclosing the identity of these individuals would undermine the assurance of confidentiality it provides to peer reviewers who participate in the tenure review process.

Theidon claims that she was told that her department voted unanimously to grant her tenure.  While her tenure case was being considered, the Harvard Crimson published an article about complaints by students over the handling by Harvard of alleged sexual assaults at Harvard. Theidon posted comments on-line supporting the student sexual assault victims.  After Theidon was denied tenure, Theidon alleges that she was informed by Harvard’s administration that the tenure review committee had expressed concerns about her “political activities” and that this concern resulted in the denial of tenure. This decision was made despite her significant number of publications as well as being the recipient of numerous awards and positive book reviews.  In her lawsuit, Theidon claimed her credentials were as strong as or stronger than other Harvard anthropologists who had been granted tenure, including a male professor who had recently been granted tenure.

In making its decision, the Court balanced Harvard’s interests in retaining the confidentiality of its evaluators against Theidon’s need to access evidence supporting her allegations of gender discrimination and retaliation.  While recognizing that Harvard “makes a strong argument that the candid assessments offered by the letter writers pursuant to an assurance of confidentiality are crucial to its tenure process,” and acknowledging that the evaluators also had a strong interest in remaining anonymous, the Court nevertheless found that the identity of the letter writers was critical to Theidon’s ability to marshal facts that could potentially support her claims.  Moreover, the court noted that “as the Supreme Court made clear in University of Pa. v. EEOC, 443 U.S. 182, 189 (1990), there is no privilege against the disclosure of tenure peer review materials.”   Accordingly, the Court ordered Harvard to produce un-redacted versions of all peer review materials for Theidon’s case.

Harvard’s request for an appeal to the First Circuit was denied.

This case makes it clear that there is no recognized privilege protecting peer review materials submitted in a tenure review process at colleges and universities.  While many believe that tenure review files will never be subject to disclosure outside the tenure process, this recent case is a reminder that notwithstanding a university’s promise of confidentiality, an institution may be required to disclose tenure review files if a tenure denial decision is challenged in court.