Should the confidentiality shrouding students’ evaluations of college instructors always be protected, even if it might conceal violations of the law?
A California state court is expected to take up that question on Thursday in response to Pomona College’s refusal to grant access to such records to a former professor suing the college for discrimination.
Lawyers for Alma Martinez, to whom the private college denied tenure and who was dismissed as an assistant professor of theater in 2013, are seeking copies of students’ evaluations not only of Ms. Martinez but also of faculty members who, unlike her, received tenure at Pomona in recent years.
In asking a state Superior Court in Los Angeles to compel Pomona to hand over such documents, her lawyers argue that the court cannot fairly weigh her claim of being discriminated against as a Hispanic woman without giving them access to the student evaluations that informed the college’s tenure decision.
They wish to know the identities of students who wrote the evaluations to determine whether those who characterized her negatively had some ulterior motive, such as retaliation for her giving them poor grades or denying them a lead role in some theater production.
Her lawyers, from the Mexican American Legal Defense and Educational Fund, or Maldef, say they need copies of students’ evaluations of recently tenured faculty members to show that the college treated Ms. Martinez differently than the others.
Pomona’s lawyers have responded by calling the Maldef lawyers’ request “a poor attempt to gain access to private information with a long history of legal protection.” Pomona maintains that providing the requested evaluations to Ms. Martinez’s lawyers would violate the Family Educational Rights and Privacy Act, a federal law, known as Ferpa, that protects the privacy of student records.
In a brief submitted to the state court this month, the college’s lawyers argue that complying with Ms. Martinez’s demands to identify her student evaluators “would have a profound, chilling effect on the college’s tenure-review process.”
Clashing Interests
Although they were unable to recall a similar legal battle over access to students’ evaluations, experts on higher-education law say disputes involving the privacy of records are fairly common and illustrate the limits of colleges’ confidentiality guarantees.
The ability of colleges to withhold such records “is not a given,” says Ellen M. Babbitt, who has represented numerous higher-education institutions as a partner at Franczek Radelet, a Chicago-based law firm. Disputes such as the one at Pomona, she says, involve “a real collision” of two strong policy interests: ensuring candor in personnel evaluations, and ensuring the courts’ access to information relevant to litigation, especially where discrimination is being alleged.
Steven J. McDonald, who has written extensively about Ferpa, says the federal law does not protect such records from being surrendered in response to a subpoena, although it generally does require educational institutions to notify students that their records are being sought.
Mr. McDonald, general counsel for the Rhode Island School of Design, says courts often handle such records requests in a way that seeks to balance lawyers’ needs against the spirit of Ferpa. For example, a court might restrict access to the documents, or offer up records after information that might identify the students has been redacted.
In the case of evaluations like those being sought from Pomona, however, it might be difficult to redact identifying details without also stripping out information of use to the plaintiff’s lawyers, he saya.
Selective Quotes?
Ms. Martinez, an established actor and director whom Pomona hired in 2006, filed her lawsuit after the college denied her administrative complaint alleging she had been improperly denied tenure based on her gender and national origin.
Her lawyers are seeking 91 anonymous course evaluations written by her students at the end of the semesters she taught there, and 17 letters of evaluation solicited from students to inform the college’s decision on her tenure candidacy.
Pomona’s legal filings say the 17 students who wrote tenure-related letters were encouraged to be candid and were assured the letters would remain confidential and would be viewed only by those directly involved in the review process. Pomona says students’ recent reviews of other professors are irrelevant to Ms. Martinez’s case, and surrendering them would violate the privacy of the faculty members as well as the students.
Ms. Martinez’s lawsuit asks the court to order Pomona to reinstate her and grant her tenure. Her lawyers have offered a much different characterization of her evaluations by students than those provided by faculty members who opposed her tenure bid.
Her lawyers say the college’s department of theater and dance, in unanimously supporting her promotion to associate professor with tenure, said students’ letters had praised her job performance. The department quoted one student as calling her a “wonderful woman and a brilliant professor.”
A subcommittee of the faculty panel with authority over tenure cases subsequently characterized students’ reviews of her performance as “mixed,” however, quoting one student who wrote that “her lectures and organization are lacking at times,” and another who said he would “have preferred if Professor Martinez had treated our experience with more respect.” The full faculty-tenure committee and the college’s administration went along with the subcommittee’s recommendation that her tenure be denied.
So far, the only versions of the evaluations that Pomona has offered Ms. Martinez’s lawyers have been redacted to remove students’ identities and anything other than the quotes cited in the tenure committee’s report on her. Her lawyers argue that the information provided does not even let them establish whether the evaluations had been accurately quoted.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
