Growing Row over "Peer Review"

By Kenneth M. Pierce

In Georgia and California, faculties tangle with the Feds

Campus cries of interference from Washington and the courts are all too familiar. But last week the level of lamentation rose to a new crescendo in the wake of two incidents. First there was the jailing, for contempt of court, of University of Georgia Education Professor James A. Dinnan, 50; second there was Washington's announcement that the University of California at Berkeley risked becoming the nation's first university to lose federal contracts in a dispute over affirmative action. Under attack in Georgia, as well as California, was one of the academic world's most sacred traditions, the deep confidentiality that shrouds "peer review," the free-spirited appraisal of faculty members up for tenure.

Georgia's Dinnan was one of nine faculty members who voted, 6 to 3, to deny tenure to Psycholinguist Maija Blaubergs, 33, a teacher in the college of education since 1972. It was the third time in as many years that Blaubergs had been denied promotion and tenure, and she sued the University of Georgia, charging sexual discrimination. During pretrial interrogation, Dinnan refused to disclose how he had voted. Instead he asked: "If academic freedom is not the right to judge one's peers free from outside pressure or intimidation, then what is it?"

As Federal District Court Judge Wilbur Owens Jr. saw the matter, Dinnan was withholding evidence from the court, since under the Civil Rights Act of 1964 it can become the courts' responsibility to decide whether junior faculty members like Blaubergs have been given fair consideration. Said Owens: "This court can't determine whether or not you did that unless you explain to the court what you individually did and why you did it." To pressure Dinnan to testify, Owens fined him $100 a day for 30 days, and then sentenced him to 90 days in jail. Faculty colleagues raised most of the $3,000 to pay the fine. To sharpen the issue, Dinnan wore his full academic robes when surrendering to begin his prison term.

This week Dinnan's 90 days are up. He may be returned to the courtroom to face Judge Owens again. And his case is also being reviewed by the Fifth Circuit Court of Appeals in New Orleans. Meanwhile he has remained in prison at Florida's Eglin Air Force Base. In a one-page broadside, New York University Philosopher Sidney Hook blasted Judge Owens' decision as "one of the crassest illustrations of ill-considered and unjustified interventions of our imperial judiciary into the educational process." If discussions of promotion and tenure are to adhere to academic standards, Hook insisted, confidentiality is required without fear of "resentment and retaliatory responses of unsuccessful candidates." Indeed, even before Judge Owens' decision, Georgia administrators seemed wary enough: they had asked Dinnan and his colleagues to decide on the cases of Blaubergs and other faculty via secret ballot rather than by more open discussion and disclosure of each member's views, thus making it easier for the university to defend against possible lawsuits. As to the charge of discrimination, Georgia's vice president for academic affairs, Virginia Trotter, formerly Assistant Secretary for Education at the Department of Health, Education and Welfare, argues that it is unwarranted. Says she: "I chaired the final review committee, and I feel Blaubergs had every chance every step of the way. Over a three-year period her case was reviewed by nine committees. She did not present convincing evidence of her teaching skills, and she displayed no sense of growth in her academic specialty."

In marked contrast to Dinnan's defiance and the support he got from his university, the confrontation between the University of California at Berkeley and the U.S. Department of Labor began with compliance. In 1978 Berkeley administrators allowed federal investigators to see confidential peer-review documents regarding women. But several weeks later, when Labor Department agents asked to photocopy 466 of the documents and send them to Washington as part of a permanent affirmative-action file, Berkeley balked. Once they became Government documents, administrators reasoned, the Freedom of Information Act would allow third parties to gain access to them and the records would no longer be confidential. Berkeley did offer to take all of the documents to Washington where they could be inspected by officials but not copied or filed. The offer was rejected.

On a university-wide basis, Berkeley points with pride to progress in the hiring of women. The proportion of female associate professors, for example, has risen from 5.9% in 1968 to 15% in 1979. Still, some departments remain almost entirely male. Berkeley's classics department, for example, has only one female professor in a total staff of 16. To pursue its investigation of hiring practices in clas ics and four other departments, Labor's Office of Federal Contract Compliance asked for an administrative hearing to or der delivery of Berkeley's documents. But Administrative Law Judge Thomas Schneider found in favor of the university. Said he in defense of the need for privacy in evaluating candidates: "Words written with the likelihood of publicity are likely to be bland and noncommittal and nonspecific." Last month, Labor Secretary Ray Marshall overruled Schneider's finding and ordered Berkeley to deliver the documents in 30 days or face a cutoff of federal contracts totaling roughly $25 million yearly.

Last week, as Berkeley neared its deadline, the university proposed a compromise limiting access to any documents forwarded to Labor and guaranteeing their return. Otherwise the school is pre pared to sue to keep its funds flowing. In the thick of the bureaucratic battle, Berkeley Chancellor Ira Michael Heyman told TIME: "It's very hard for a single campus to confront the whole federal system. I'd like to see the issue of disclosure of such confidential documents addressed by large research universities, which unite and use their power against the Federal Government."

Already, many Berkeley departments warn faculty members when sending out requests for peer-review letters that the information requested in confidence may eventually be divulged--as a result of Government actions. One department chairman recalls that eight of ten people asked to write appraisals of one recent tenure candidate did not reply. What troubles professors and department heads is that the reluctance of faculty members to make appraisals now seems strongest in the cases of the weakest--and potentially most litigious--tenure candidates.

Nobody, in or out of academia, denies that there has been race and sex discrimination in the granting of tenure. What troubles many academics is that the corrective methods being used by the Government seem increasingly dangerous. Most would agree with Dartmouth President John G. Kemeny, a staunch critic of past discrimination. Says Kemeny: "Academic institutions now live under a constant threat that any employee not hired or promoted (even for the best of reasons) can file a complaint that will bring a huge bureaucracy down on them. Even when the institution wins the case-- and good institutions win most of the time--it involves an enormous expenditure of effort and large sums of money. There is no way of recovering the cost of these efforts even if it is eventually determined that the complaint is totally baseless."

--By Kennet M. Pierce. Reported by Joyce Leviton/Atlanta and Joseph Pilcher/Los Angeles

With reporting by Joyce Leviton, Joseph Pilcher

This file is automatically generated by a robot program, so viewer discretion is required.