A Controversial Quartet

By Alain L. Sanders

When the University of Pennsylvania denied tenure to Rosalie Tung in 1985, the Chinese-American business professor decided to put up a fight. Charging discrimination on the basis of sex and race, Tung asked the federal Equal Employment Opportunity Commission to investigate. But the university turned down the agency's request to see the peer-review letters that contained evaluations of Tung's performance by her colleagues. Last week the U.S. Supreme Court bluntly told the university to hand over the documents. The decision was one of a quartet of major rulings from the high bench, which also touched on pornography, housing discrimination and criminal law.

In the Tung case, the university insisted that releasing the materials would encroach on academic freedom and undermine the confidentiality that is the backbone of the tenure system. The court dismissed that argument and gave the EEOC broad power to obtain tenure documents. Wrote Justice Harry Blackmun: "The costs associated with racial and sexual discrimination in institutions of higher learning are very substantial . . . Ferreting out this kind of invidious discrimination is a great if not compelling governmental interest."

Many college administrators were critical of the ruling. Said David Markowitz of the American Council on Education: "There will be fewer people willing to take part in peer reviews. The court is asking people to submit themselves to possible punishment for being candid." But Tung, who now teaches at the University of Wisconsin, saw things differently. "If people make an objective evaluation of a candidate's work," she said, "they have nothing to fear."

Last week's other major rulings:

Pornography. As in last year's controversial flag-burning decision, the Justices upheld the First Amendment guarantees for individuals espousing an unpopular cause -- this time, the right to peddle pornography. Reviewing an appeal from Dallas, the high bench refused to strip sexually oriented businesses of important constitutional protections. By a 6-to-3 vote, the court struck down the licensing portion of a 1986 city ordinance that strictly regulated adult bookstores and movie houses through zoning, licensing and inspection requirements. While endorsing the law's attempt to root out the urban blight and crime associated with such enterprises, the court concluded that the licensing scheme amounted to an unconstitutional "prior restraint" on speech because it did not impose a time limit for acting on applications and did not provide for prompt judicial review. However, the court unanimously upheld the Dallas ordinance as it applies to "hot sheet" sex motels.

First Amendment experts generally cheered the Dallas ruling. "Over and over, the court has said that licensing standards must be crystal clear," explained University of Michigan law professor Frederick Schauer. "This is a quite proper application of the court's long-held distrust of official discretion." Conservative court commentator Bruce Fein disagreed, charging that "the high court is doing a pirouette around obscenity laws."

Housing discrimination. Stepping into a bitter racial and political imbroglio involving Yonkers, N.Y., the Supreme Court last week slapped federal District Judge Leonard Sand on the wrist for an "abuse" of judicial discretion. Following years of municipal obstructionism and a refusal by the city to carry out a housing-desegregation decree to which it had earlier consented, Sand in 1988 ordered Yonkers council members to vote for the plan. When four legislators disobeyed, the judge imposed potentially crushing contempt fines on them and the city. Last week, in a 5-to-4 vote, the court ruled that Sand should not have fined the council members until he was certain that the fines against the city alone would not force compliance. Wrote Chief Justice William Rehnquist: "The imposition of sanctions on individual legislators is designed to cause them to vote, not with a view to the interest of their constituents or of the city, but with a view solely to their own personal interests."

Civil rights advocates were dismayed at the decision, which they saw as another attempt to water down legal remedies against inequality. "This case may encourage unwarranted defiance of judicial authority in civil rights matters," observed Harvard University law professor Laurence Tribe. Added ) Cornell University law professor Steven Shiffrin: "There is no place for deference to the legislative process when it does not act in good faith." But Peter Chema, one of the targeted Yonkers council members, was jubilant. "This is a democracy," he declared, "and an elected official's vote is sacred."

Criminal rights. The Justices refused to carve out another exception to the so-called exclusionary rule. This principle generally forbids prosecutors to prove their case with evidence obtained illegally from a defendant. The court has long made an exception in cases in which the defendant takes the stand, by allowing the use of tainted evidence to attack his credibility. But last week the Justices refused to permit such evidence to impeach the credibility of a witness testifying in support of a Chicago murder defendant. The ruling left some experts scratching their heads and anticipating future criminal cases because the fifth and deciding vote came from Justice Byron White, normally one of the staunchest judicial critics of the exclusionary rule.

With reporting by Jerome Cramer/Washington and Andrea Sachs/New York