Full opinion text
MEMORANDUM WOODLOCK, District Judge. Barbara Jackson brings this sex discrimination case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against Harvard University and John H. McArthur, Dean of the University’s Graduate School of Business Administration (the “Business School”). Ms. Jackson was denied tenure in the Marketing Area at the Business School in 1983. She alleges that the process by which she was denied tenure was tainted with sexual discrimination. The case was tried without a jury over an eight-day period, and the evidence was thereafter reopened to receive documents belatedly produced by defendants. For the reasons presented below, I find the evidence fails to establish discrimination against Ms. Jackson on account of her gender. Accordingly, judgment will enter for the defendants. This memorandum sets forth the findings of fact and conclusions of law required for resolution of this nonjury matter. See Fed.R.Civ.P. 52(a). Before turning to a detailed presentation of the findings and conclusions, however, it will be useful to provide as an overview a concise statement of my determinations in this case. I. OVERVIEW This case concerns a faculty tenure decision upon which reasonable people could and did disagree. The plaintiff Jackson, although a talented academic, failed on two occasions to convince a critical mass of the tenured faculty at the Business School that she should herself be admitted to tenured status. Lacking that critical mass of support, Ms. Jackson’s candidacy did not receive the necessary support of the defendant Dean McArthur. The evidence presented satisfies me that the judgment not to recommend Ms. Jackson for tenure was not infected by considerations of gender in any way. It was instead a determination on the merits as to which a large number of people of good will differed without reference to improper considerations. There was no direct evidence of discrimination presented; indeed, none of Ms. Jackson’s supporters for tenure—numbering slightly over half the tenured faculty who participated at the critical meetings—came forward to testify that gender considerations played any role in the rejection of their position. Nor does any of the circumstantial evidence adduced by Ms. Jackson provide an alternative basis for finding a discriminatory cause in the denial of tenure. Given the state of the evidence, the resolution of this case should have been relatively prompt and the determination clear in favor of the defendants. However, given the lack of assistance from the parties in producing relevant evidence, the judicial decision-making process was rendered time consuming and laborious. But at the conclusion of that process the proper outcome continues to be clear. Nothing in the lengthy evaluation given the record in this case has disclosed any reason to believe that Ms. Jackson’s gender played a part in the decision of the defendant Harvard, acting through its agent Dean McArthur, to deny her tenure at the Business School. The tenure process at the Business School makes Dean McArthur the pivotal figure. His decision to recommend or not to recommend an individual for tenure to the President and governing bodies of Harvard is effectively dispositive. But the Dean’s decision itself turns upon whether a substantial majority of the tenured faculty favor tenure for the individual under consideration. In the case of Ms. Jackson, there was no substantial majority for tenure; rather, the faculty was about evenly split on the question when it was presented to them for a final vote, first in 1981, and again in 1983. The tenure process for Ms. Jackson followed the traditional pathway in 1981. A Subcommittee, formed to review her work, generated a detailed report and made its own recommendation. By a 3-1 vote the Subcommittee found Ms. Jackson met the standards for tenure. The one dissenter took the position that while she did not meet the standards she should nevertheless be granted tenure as an exceptional case. The tenure question was then taken up by the tenured faculty as a whole. Following customary practice, a preliminary vote was taken after a preliminary discussion of Ms. Jackson’s qualifications, and she received a substantial majority in support of tenure. However, when the final vote was taken less than a month later, Ms. Jackson’s substantial majority had evaporated and only a slight majority continued to support her tenure candidacy. Although obviously relevant, this rapid evaporation of support was not the topic of any evidence adduced by the parties at trial. Faced with only this slight majority of support for Ms. Jackson after the 1981 tenure votes, Dean McArthur chose a somewhat unusual approach. Rather than employing the customary one-year termination appointment ordinarily extended tenure candidates who fail to obtain substantial faculty support, the Dean organized a series of meetings designed to fashion a strategy to meet the perceived deficiency in the record Ms. Jackson presented: her lack of sufficient creativity. During the spring of 1982 interested members of the faculty met with her to define a project which would satisfy those who had opposed her tenure candidacy. Such a project was developed that spring. And despite reservations about the definition given it, Ms. Jackson — who was relieved of any classroom responsibilities to allow her to devote full time to the project — began her work. Dean McArthur made clear that the project did not need to be completed before the end of February 1984. He further indicated that the final deadline could be extended to the late summer or fall of 1984. Nevertheless, Ms. Jackson decided to complete the project as quickly as possible. She submitted a draft to certain tenured professors in her Area over the summer of 1983. In memoranda delivered in early August, two of the reviewers criticized this draft severely because of its superficiality. Heedless of these harbingers that her performance on the project was not meeting with support from interested representatives of the group whose substantial support she would need to achieve tenure, Ms. Jackson submitted her final version at the end of August 1983, within a month after receiving the severely negative comments and well before any deadline for submission. Predictably, Ms. Jackson’s rush to judgment in the face of adverse comments did not improve her tenure chances. The 1983 Subcommittee recommended unanimously against tenure for Ms. Jackson and the full tenured faculty voted in favor of tenure for her by only a modest majority, well short of the substantial majority Dean McArthur considered necessary before he would recommend tenure. At this point, Dean Mc-Arthur offered the termination appointment; Ms. Jackson left the Business School and this litigation ensued. On their face, nothing in these proceedings fairly suggests Ms. Jackson was discriminated against on the basis of her sex in the Business School’s tenure decision. I have found nothing in the direct evidence concerning that process to support such a claim. Ms. Jackson, however, has also raised a collection of circumstantial matters which she maintains support her contention. Broadly stated, these circumstantial matters relate to the environment at the Business School, purported irregularities in its procedures as applied to Ms. Jackson’s candidacy, and alleged disparate treatment of male tenure candidates. I have analyzed these matters in great detail and find nothing beneath the surface which supports Ms. Jackson’s position. The circumstantial matters reduce to a collection of attenuated, dated, and immaterial incidents and stray remarks, de minimus procedural anomalies, and inapposite comparisons with other tenure candidates. Viewing the appropriate judgment as extraordinarily clear, I was prepared to decide this case from the bench adversely to the plaintiff with an ore tenus decision dictated into the record. During the course of trial it also became clear, however, that the defendants, in addition to a very strong case, were benefitting improperly from their own discovery misconduct and the operation of certain misconceived pre-trial discovery rulings. Prior to trial the defendants destroyed documents they were under a court order to produce. They also availed themselves of a spurious privilege not to disclose the particulars of tenure discussions and evaluations. When it developed that the defendants had in addition not responded fully to pre-trial document demands, I offered the plaintiff sua sponte the opportunity to conduct further discovery to counteract these evidentiary limitations. She rejected this opportunity to adduce additional relevant evidence and pressed only for sanctions which would relieve her of the burden of proving her case by the introduction of evidence. The imposition of such sanctions, however, was unacceptable to me as a means of resolving factual disputes. In deciding this case I found an absence of evidence which the parties should have adduced but for various reasons neither proposed to offer nor ultimately even sought to discover. Concerned that the defendants not benefit unfairly by their own misconduct and what I came to conclude were erroneous pre-trial privilege determinations, I found it necessary to read and reread the documentary submissions and trial testimony to assure myself that I had accounted for all the links — even those missing from the evidence offered by the parties — in the chains which bind this case together. After undertaking this extensive review, I am satisfied that my initial tentative judgment was correct. In summary, there is in this case no basis on which to find gender discrimination against the plaintiff in her tenure review. It is simply a case presenting the supportable conclusion of a university and its responsible Dean that a member of a protected class — Ms. Jackson, a qualified female tenure candidate — did not satisfy the necessarily subjective standards which guide tenure determinations. There is here insufficient — indeed virtually no — evidence that illicit discriminatory motives were at work. Thus, I am not free to interpose whatever independent views I might harbor regarding the merits of Ms. Jackson’s tenure candidacy but must enter judgment for the defendants. II. LEGAL PRINCIPLES In the taxonomy of Title VII, this action is an “individual disparate treatment” case. The Supreme Court has explained the “basic allocation of burdens and order of presentation of proof” in such cases as a three-step process: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)); see also Fields v. Clark Univ., 817 F.2d 931, 934 (1st Cir.1987). To prove a prima facie Title VII case for discriminatory denial of tenure, a woman in the position of Ms. Jackson must show (a) that as a candidate for tenure she was qualified under Business School standards, practices, or customs; (b) that despite her qualifications she was rejected; and (c) that tenure positions in the Marketing Area at the Business School were open at the time she was denied tenure, in the sense that others were granted tenure in the Area during a period relatively near to the time she was denied tenure. See Banerjee v. Board of Trustees, 648 F.2d 61, 62-63 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). If the plaintiff succeeds in making out her prima facie case, the burden of production then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason” for the decision to deny tenure to the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; see also Banerjee, 648 F.2d at 63. The defendant needs only “to articulate, not prove, a non-discriminatory reason for its action.” Menard v. First Sec. Servs. Corp., 848 F.2d 281, 285 (1st Cir.1988) (emphasis in original); accord Oliver v. Digital Equip. Corp., 846 F.2d 103, 108 (1st Cir.1988); see Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam). Finally, if the defendant successfully comes forward with a nondiscriminatory reason for the tenure denial, the burden shifts back to the plaintiff to show that the articulated nondiscriminatory reason was a pretext for sex discrimination. Burdine, 450 U.S. at 253, 256, 101 S.Ct. at 1093, 1095. The plaintiff can establish pretext “directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. at 256, 101 S.Ct. at 1095. However, a plaintiff cannot meet his burden of proving “pretext” simply by refuting or questioning the defendants’ articulated reason. Merely casting doubt on the employer’s articulated reason does not suffice to meet the plaintiff’s burden of demonstrating discriminatory intent, for “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons” in the first place. To hold otherwise would impose an almost impossible burden of proving “absence of discriminatory motive.” Dea v. Look, 810 F.2d 12, 15 (1st Cir.1987) (citation omitted) (quoting White v. Vathally, 732 F.2d 1037, 1042-43 (1st Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984) (quoting Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1094)). Under the conventional three-step Burdine framework outlined, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. However, there is one type of Title VII case in which the conventional Burdine framework is modified, and in which the ultimate burden does shift to the defendant: in a “mixed motive” case, one in which the plaintiff is able to prove that the employer’s decision was motivated in part by illegitimate factors, the employer can escape liability only “if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person.” Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989) (Brennan, J., plurality opinion). A plaintiff can prove illegitimate motivation, and thus push her ease into the Price Waterhouse framework, by offering “direct evidence” of discrimination. See id. 109 S.Ct. at 1801-06 (O’Con-nor, J., concurring); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121— 22, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985); Fields, 817 F.2d at 935; Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 69 n. 6 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). Of course, as the First Circuit has recognized, [i]n a discriminatory discharge case, it is likely that a plaintiff could seldom uncover direct proof that his employer fired him solely for [an impermissible reason].... [A] plaintiff in a case like this will rarely, if ever, be able to produce a “smoking gun” that provides direct, subjective evidence of an employer’s [discriminatory] intent. Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 929 (1st Cir.1983) (discussing the Railway Labor Act, 45 U.S.C. § 152 Fourth); accord Hallquist v. Local 276, Plumbers and Pipefitters Union, 843 F.2d 18, 24 (1st Cir.1988) (“[W]e have always recognized that ‘direct’ evidence of discrimination is elusive in Title VII cases.”). I “Particularly in a collnga or university setting/ where the level of sophistication is likely to be much higher than in other employment situations, direct evidence of sex discrimination will rarely be available.’Sweeney v. Board of Trustees, 569 F.2d~U69, 175 (1st Cir.), vacated on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam). Another implication of this higher level of sophistication is that when the plaintiff’s quondam employer is an academic institution, assessment of the proof of causation is an undertaking of considerable subtlety. The assessment therefore requires special sensitivity to the limits of the Title VII court’s writ: [T]he district court ... is [not] empowered to sit as a super tenure board.... [C]ourts must be extremely wary of intruding into the world of university tenure decisions. These decisions necessarily hinge on subjective judgments regarding the applicant’s academic excellence, teaching ability, creativity, contributions to the university community, rapport with students and colleagues, and other factors that are not susceptible of quantitative measurement. Absent discrimination, a university must be given a free hand in making such tenure decisions. Where ... the university’s judgment is supportable and the evidence of discrimination negligible, a federal court should not substitute its judgment for that of the university.... ... Inevitably, some tenure decisions ... will be very close — may, indeed, split the university community and lead responsible people to very different conclusions on the merits. Courts have no license to resolve such disputes except where there is evidence from which to conclude that an illicit motive was at work. The fact that a court might be sympathetic to a tenure award is not enough from which to find discrimination unless the University's stated reasons are palpably unworthy of credence or there is other evidence pointing to discrimination. Kumar v. Board of Trustees, 774 F.2d 1, 12 (1st Cir.1985) (Campbell, C.J., concurring), cert. denied, 475 U.S. 1097, 106 S.Ct. 1496, 89 L.Ed.2d 896 (1986). Thus, it was error to have “treated Title VII of the Civil Rights Act of 1964 as though it were an affirmative action statute, and so proceeded on the theory that once a candidate was ‘qualified’ under the standards of the university, it would be pretextual for the university’s administrator not to appoint him.” Id. at 10-11 (Wyzanski, D.J.). Indeed, courts must recognize the importance of allowing universities to run their own affairs (and to make their own mistakes). To do otherwise threatens the diversity of thought, speech, teaching, and research both within and among universities upon which free academic life depends. Cf. Board of Curators v. Horowitz, 435 U.S. 78, 87-91 [, 98 S.Ct. 948, 953-56, 55 L.Ed.2d 124] (1978) (counseling discretion in judicial interference in academic decisionmaking). Vargas-Figueroa v. Saldana, 826 F.2d 160, 162-63 (1st Cir.1987). (A tenure decision of a college or university “is entitled to stand even if it appears to have been misguided, unless it was sex biased [or based on other prohibited motives].”) Sweeney v. Board of Trustees, 604 F.2d 106, 112 (1st Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980). Finally, more subjectivity is permitted with respect to academic tenure decisions than might be tolerated in other Title VII settings. This is because of the difference between the selection of a craftsman and of a professional. A bricklayer who can properly lay a specified number of bricks in a specified period is ordinarily as good as any other bricklayer likely to appear. But in the selection of a professor, ... while there may be appropriate minimum standards, the selector has a right to seek distinction beyond the minimum indispensable qualities. Kumar, 774 F.2d at 11- (Wyzanski, D.J.). In short, the elasticity of promotion standards for teachers in an academic setting does not constitute, in and of itself, evidence of discrimination. Cf. Watson v. Fort Worth Bank and Trust, — U.S. -, 108 S.Ct. 2777, 2791, 101 L.Ed.2d 827 (1988) (plurality opinion) (“ ‘[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job related.... It would be a most radical interpretation of Title VII for a court to enjoin use of an historically settled process and plainly relevant criteria largely because they lead to decisions which are difficult for a court to review’.”) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 96 (2d Cir.1984)). III. MISSING EVIDENCE Given the great subtlety and sensitivity required in assessing the evidence in this action, I am compelled to begin the detailed findings and conclusions by evaluating in depth the lack of certain evidence which might have been relevant and material to a determination of this case. Full development of the record has been hampered by what I shall call the problem of missing evidence, caused jointly and severally by the application of what I have now concluded was an erroneous extension of evidentia-ry privilege to the defendants, by the negligence of the defendants in preserving documents, by the inattentiveness of the defendants to their discovery responsibilities, and, ultimately, by the strategic judgment of the plaintiff herself not to pursue further discovery when it was offered her by the court. The plaintiff sought to short circuit the judgment process and obtain the benefit of certain adverse inferences and preclusion-ary orders as a result of the missing evidence. She was, however, unwilling to accept an offer to conduct further discovery in order to remedy the advantage that she contended defendants had previously obtained improperly from the privilege, the documentary destruction, and the discovery defaults. For my part, I have been unwilling to decide this case on the basis of evidentiary constructs such as adverse inferences and preclusionary orders. In this section, I make findings and draw conclusions regarding the various aspects of the problem of missing evidence. I first consider the limitations created for plaintiff in her development of proof and then address the remedies for those limitations. A. The Evidentiary Limitations 1. The Erroneous Privilege This case was assigned to me when I joined the court. A certain amount of discovery had been conducted, and Magistrate Cohen and Judge Garrity, to whom the case was previously assigned, had made a number of legal determinations. One of these determinations resulted in the recognition of a “qualified academic privilege against disclosure” of the identities of faculty and peer reviewers who furnished evaluations to the Business School in the tenure review process. Jackson v. Harvard Univ., 111 F.R.D. 472, 474 (D.Mass.1986). In keeping with my practice of continuing to apply the law previously applied by other judicial officers in those ongoing cases for which I assumed responsibility— and despite significant reservations — I attempted to apply the privilege to discovery and trial of this case. In the course of discovery, however, the strictures of the privilege were modified somewhat. For example, I concluded that the privilege was jointly held both by each individual reviewer and by Harvard as the academic institution. Thus, if deposed or called to testify, an individual reviewer was free to choose to disclose his or her own views as communicated in the review process. The reviewer was not free, absent Harvard’s assent, to identify the individual views of others. Further, the parties were permitted to inquire into the range of expressed views — without identifying by name the reviewers or commentators— through protocols for distinguishing among reviewers and commentators by the use of letters, e.g., Reviewer A and Committee Member D, rather than specific names. In fashioning a privilege for evaluators in the tenure process, Judge Garrity relied upon EEOC v. University of Notre Dame du Lac, 715 F.2d 331 (7th Cir.1983), in which the Seventh Circuit held that universities may redact any “identifying features” of peer reviewers before turning files over. Id. at 337-38. Under Notre Dame du Lac, in order to obtain more information, a plaintiff must make a substantial showing of “particularized need” for relevant information, a burden similar to that imposed on a party seeking disclosure of grand jury materials. ... [T]he mere fact that certain information may be relevant or useful does not establish a “particularized need” for disclosure of information. The party seeking disclosure of the privileged information must show a “compelling necessity” for the specific information requested. Id. at 338 (emphasis in original) (citations omitted). Academic privilege is needed, in the Seventh Circuit’s view, because confidentiality is absolutely essential to the proper functioning of the faculty tenure review process. The tenure review process requires that written and oral evaluations submitted by academicians be completely candid, critical, objective and thorough_ Without [the] assurance of confidentiality, academicians will be reluctant to offer candid and frank evaluations in the future. Id. at 336. A number of other courts have not gone so far as to establish a rule of academic privilege, but have fashioned instead a balancing approach. In Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977), the Fourth Circuit upheld, as an appropriate exercise of discretion under Fed.R.Civ.P. 26(c), a lower court’s refusal — based on a balancing of the interest of the college in confidentiality against the need of the plaintiff for the material — to order disclosure of confidential evaluations of faculty members. Id. at 581. Without reference to Rule 26, the Second Circuit employed a similar balancing approach before allowing discovery of how members of a tenure committee voted. Gray v. Board of Higher Educ., 692 F.2d 901 (2d Cir.1982). The Second Circuit noted that the dangers of compelling disclosure are that “candid peer evaluation will be chilled, the harmony of faculty relations will be disturbed, and academic freedom will be threatened by government intrusion into the life of colleges and universities.” Id. at 907. However, because the plaintiff was not given a “ ‘meaningful written statement of reasons’ ” for his rejection, id. (quoting brief of American Association of University Professors), “the balance tips toward discovery and away from recognition of privilege,” id. at 908. District courts in the Ninth Circuit have followed these precedents, see, e.g., Rubin v. Regents of Univ. of Cal., 114 F.R.D. 1, 2-4 (N.D.Cal.1986), as has one in the Sixth Circuit, see Parvarandeh v. Goins, 124 F.R.D. 169, 170-73 (Mag.E.D.Tenn.1988), aff'd, 124 F.R.D. 173 (E.D.Tenn.1989). But see Wright v. Jeep Corp., 547 F.Supp. 871, 875 (E.D.Mich.1982) (refusing to recognize academic privilege asserted by professor fighting subpoena of research notes by defendant in tort litigation). Two circuits have ruled that tenure discussions, votes, and files are in no way privileged and hence fully discoverable. In In re Dinnan, 661 F.2d 426 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1106, 102 S.Ct. 2904, 73 L.Ed.2d 1314 (1982), the court rejected arguments that the privilege was necessary to protect the societal interests of academic freedom and the secret ballot, finding “neither argument to be even slightly persuasive.” Id. at 430. The Third Circuit, in EEOC v. Franklin and Marshall College, 775 F.2d 110 (3d Cir.1985), cert. denied, 476 U.S. 1163, 106 S.Ct. 2288, 90 L.Ed.2d 729 (1986), was more sympathetic to the arguments in favor of the privilege, but nonetheless rejected them: A privilege or Second Circuit balancing approach which permits colleges and universities to avoid a thorough investigation would allow the institutions to hide evidence of discrimination behind a wall of secrecy. ... In the face of the clear mandate from Congress which identified and recognized the threat of unchecked discrimination in education, ... we have no choice but to trust that the honesty and integrity of the tenured reviewers in evaluating decisions will overcome feelings of discomfort and embarrassment and will outlast the demise of absolute confidentiality. Id. at 115 (referring to Title VII). District courts in the Eighth Circuit have followed these precedents. See Orbovich v. Macalester College, 119 F.R.D. 411, 413-15 (Mag.D.Minn.1988); Rollins v. Farris, 108 F.R.D. 714 (E.D.Ark.1985). I find the arguments against recognizing any form of academic privilege compelling. As a preliminary matter, the burden on the proponent of a new privilege is very high. In declining to create a new privilege for the President of the United States, the Supreme Court noted that “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (footnote omitted). In a more domestic setting, the Court summed up its approach to privileges as follows: Testimonial exclusionary rules and privileges contravene the fundamental principle that “ ‘the public ... has a right to every man’s evidence’.” As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980) (citations omitted). Thus, academic privilege is defensible only if it serves some transcendent public good. I am satisfied it does not. In fact, the opposite is true: when discrimination by an academic institution is alleged, the public good is best served by a thorough examination of the factors that influenced the disputed decision. If society perceives that a teacher has been the victim of discrimination, it can have no confidence that students will be allowed to succeed to the ultimate limits of their potential. The possibility that a qualified applicant will be rejected on other than academic grounds “is a much greater threat to our liberty and academic freedom than the compulsion of discovery.” Dinnan, 661 F.2d at 431. Moreover, it is difficult to see why a university should be entitled to a privilege to which other institutions are not. Presumably, candor and harmony are values desired by professional partnerships. Yet, if a law firm, see Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), or an accounting firm, see Price Waterhouse, 109 S.Ct. 1775, is charged with having refused to advance an individual on grounds that society has deemed impermissible, it is not permitted to shield from discovery the reasons for the decision or the identity of the assessors. Indeed, the importance of vindicating fair employment rights has been viewed as sufficient to overcome the traditional absolute immunity attaching to the decisions of judges made in the course of their work. See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Why, then, should Harvard University be allowed to shield the identities of evaluators and the content of critical discussions which influence tenure and promotion decisions? It is no answer that disclosure will chill frank evaluations of a teacher’s merit. If anything, because members of tenure committees and peer reviewers themselves have tenure — or are otherwise substantial figures — they have less to fear from disclosure of their votes or evaluations than do those making employment decisions in other fields which have no claim to such a neo-privilege. In addition, the prospect of scrutiny can be expected to impress upon evaluators their duty to be prepared to offer defensible reasons for their judgments. A faculty member whose vote resulted from a reasoned assessment of an applicant’s record, or a peer evaluator whose critique of a candidate’s work is supported by scholarly analysis, has nothing to fear — except perhaps the disappointment of the subject and her supporters— from the disclosure of her vote or evaluation. It is only if improper considerations affected her decision that an evaluator need fear public scrutiny. That is a tolerable price to pay for any loss of faculty harmony. As Justice Brandéis observed in a different context, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” L. Brandéis, Other People’s Money 62 (Nat’l Home Lib. Found, ed. 1933). Nor will academic freedom be imperiled by judicial refusal to recognize academic privilege. Academic freedom requires two conditions: that a university be free “ ‘to determine for itself on academic grounds who may teach’,” Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (citation omitted) (Frankfurter, J., concurring), and that there be no “governmental intervention in the intellectual life of a university,” id. at 262, 77 S.Ct. at 1217-18. When a member of the university community alleges that the institution has violated the ground rules under which all employers must operate as employers, it is not inconsistent with principles of academic freedom for an impartial third party, the legal system, to settle the dispute — not by imposing selection criteria of its own, but by assessing whether the employment decision was made according to academia’s own standards, free of impermissible nonacademic considerations. The courts do not “reevaluate a candidate's qualifications," but rather leave tenure and promotion decisions “exclusively to this nation’s colleges and universities so long as the decisions are not made, in part large or small, upon statutorily impermissible reasons.” Franklin and Marshall, 775 F.2d at 117; see also Rollins, 108 F.R.D. at 719 (“Academic freedom in employment actions extends only insofar as legitimate, academic grounds form the basis of tenure decisions.”). And only with access to all relevant information can a fact finder determine whether a university’s decision in a particular case was based on academic considerations or discriminatory factors. Finally, there is no reason why, upon a proper showing by the party opposing disclosure, confidential records cannot be produced subject to appropriate protective orders, forbidding further disclosure and permitting their use only by the litigants for the purposes of the litigation. A protective order can safeguard the confidentiality of the materials to the extent consistent with a fair hearing of the allegations of the plaintiff. In sum, there are understandable reasons why academic institutions — indeed all professional groups — strive to maintain the general confidentiality of tenure votes and peer reviews. The university’s desire to protect the confidentiality of its evaluation procedures, however, cannot transcend the need to have all relevant information available to a plaintiff alleging a violation of federal anti-discrimination law. The normal mechanisms of discovery are tools well-suited for a court’s use in striking a fair balance between these competing interests. That balance should not be thrown out of alignment by overemphasis upon the concerns of academics that their decision-making process has some special claim to be conducted in secrecy. 2. The Destruction of Documents When the plaintiff commenced this action, she served defendants with her First Request for Production of Documents. This included a request for the tenure files of every male who had ever been granted tenure at the Business School. On March 5, 1986, the Magistrate ordered that plaintiff be allowed discovery of the files of successful male candidates for tenure during only the 1981-1984 period. Plaintiff appealed the narrow scope of the Magistrate’s ruling, and on August 12, 1986, Judge Garrity “modifie[d] the magistrate's order to permit discovery of the tenure files of men who were granted tenure between 1974 and 1984.” Jackson, 111 F.R.D. at 476. After Judge Garrity’s August 1986 ruling, plaintiff and the court learned that defendants would not be able to comply fully with the Judge’s discovery order, because the majority of the requested tenure files had been destroyed in April or May of 1986, shortly after issuance of the Magistrate’s order. The destruction of documents can merit the inference that the contents of the destroyed documents were unfavorable to the party that destroyed them. The First Circuit has observed that: The general principles concerning the inferences to be drawn from the loss or destruction of documents are well established. When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him. Wigmore has asserted that nonproduction is not merely “some” evidence, but is sufficient by itself to support an adverse inference even if no other evidence for the inference exists: The failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor, provided the opponent, when the identity of the document is disputed, first introduces some evidence tending to show that the document actually destroyed or withheld is the one as to whose contents it is desired to draw an inference. 2 Wigmore on Evidence § 291, at 288 (Chadbourn rev.1979) (emphasis added). The inference depends, of course, on a showing that the party had notice that the documents were relevant at the time he failed to produce them or destroyed them. Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 217-18 (1st Cir.1982); see also Petition of United States, 255 F.Supp. 737, 740 n. * (D.Mass.1966), aff'd in pertinent part and rev’d in part sub nom. United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 196 (1st Cir.), cert. denied, 389 U.S. 836, 88 5.Ct. 48, 19 L.Ed.2d 98 (1967). Consequently, it is necessary for me to evaluate in detail the circumstances of Harvard’s destruction of documents in order to evaluate what inferences, if any, should be drawn. At the time this litigation commenced, the subject tenure files were stored in the office of Marrilyn Reid, the Administrator for Faculty Appointments and Procedures and Secretary of the Faculty of the Harvard Business School. The files remained in Ms. Reid’s office until September 1985, at which time they were sent to the Inactive Records Center of Harvard University. Ms. Reid was “well aware” at the time the files were sent that they were needed for this litigation; she had been advised that the tenure files were to be preserved. However, she desperately needed to create file space in her office, and she believed the tenure files would be safe at the Inactive Records Center. In selecting, the particular files to be sent, Ms. Reid consulted with Amy Suger-man, who had become the Business School’s Records Analyst in August 1985. The two women worked with one another in the selection process, but they did not communicate with respect to the various special considerations involved in the transfer. When the transfer was made, I find, Ms. Sugerman did not know about the pendency of this litigation or plaintiff’s discovery request: she thought the tenure files were being transferred to be destroyed. Consequently, she filled out a “Records Disposition Application and Certificate” for the destruction of the files and sent it to the appropriate administrator at the Business School. Ms. Sugerman also told Joan Glasser, the staff assistant to Richard Haas, the Records Management Officer of Harvard University’s archives, that the files were to be destroyed. In fact, during September-October 1985, Ms. Sugerman and Ms. Glas-ser spoke between ten and twenty times. These conversations left Ms. Glasser with “no doubt” whatsoever that the records received from the Business School in September were to be destroyed. When the tenure records arrived at the Inactive Records Center in September, they were placed in the area reserved for materials that are to be incinerated. Normally, records are not received and placed in that area unless they arrive with a completed Disposition Application. According to Mr. Haas, these records were received as an exception to the general rule because he was doing a favor for Ms. Sugerman and because he fully believed that the completed Application would be forthcoming. On December 9, 1985, Ms. Sugerman received a memorandum from Dean Currie, the Business School’s Assistant Dean for Administration and Policy Planning. This memorandum informed Ms. Sugerman, apparently for the first time, that the Business School was “in the early stages of litigation with someone who failed to be promoted to tenure. [And that] [f]or the time being, and especially now when we are in the ‘discovery’ process, our attorneys say that we shouldn’t throw anything away.” Ms. Sugerman sent a copy of Dean Currie’s memorandum to Rick Haas and Marrilyn Reid two days after she received it. On December 16, 1985, Rick Haas sent a memorandum to Ms. Sugerman in which he acknowledged his agreement with the directive expressed in Dean Currie’s memorandum. Two days later, Ms. Sugerman called Mr. Haas to make sure that the tenure records which had been sent to the Inactive Records Center in September would not be accidentally destroyed. She memorialized her telephone conversation with a handwritten note to herself at the bottom of Mr. Haas’s December 16th memorandum. This note states: Called Rick 18 Dec asking him if the records for Marilyn now stored in the “hold” area for incineration would be safe there and wouldn’t be destroyed accidentally with the Admissions files which were moved to the hold area at the same time. He said “absolutely not”— that he personally lets the movers in and supervises them as to which boxes to take. Mr. Haas claims that following his conversation with Ms. Sugerman, he informed Ms. Glasser of the necessity of preserving the Business School’s tenure records. He did not, however, write any sort of note or memorandum to this effect, and Ms. Glas-ser vehemently denies that she was ever told that the subject tenure records had to be preserved. Moreover, no one associated with the Inactive Records Center ever followed the Center’s routine procedure of recording the subject tenure records on the “shelf list" of records to be preserved. In late April or early May of 1986, a moving company employed by Harvard University to transport documents for purposes of destruction removed the boxes containing the subject tenure records from the Inactive Records Center. Ms. Glasser supervised the removal of the boxes, having been directed by Mr. Haas to let the movers take every box in the area of the Center where the tenure records had been stored since September. The records were removed and destroyed without a Disposition Application ever having been presented to the Inactive Records Center. They appear to have been the first Business School records ever removed from the Inactive Records Center. They were apparently the only records of any sort to have been destroyed without a completed Disposition Application since the advent of the 1939 University-wide policy regarding records retention. 3. The Defaults and Delays in Discovery Plaintiff first became aware of the existence of highly material documentary evidence concerning the rapid evaporation of support for her 1981 tenure candidacy near the end of trial — three and one-half years after the commencement of the litigation. The evidence was in the form of a tally sheet which set forth the actual results of the two 1981 votes on her candidacy. The late arrival in the case of the tally sheet and the obviously relevant information contained on it was not the fault of plaintiff. Plaintiff had made a timely discovery request to which production of the tally sheet would have been responsive. Not only did defendants fail to turn over the tally sheet during discovery, but defendants’ counsel misled the court, during a hearing held on February 17, 1988 to consider defendants’ motion for summary judgment, by representing that all tenure “ballots are routinely destroyed after the vote is taken.” Moreover, a full month after the culmination of the trial, defendants’ counsel stated in a submission to the court that “[i]n reviewing why the 1981 tally sheet was not produced earlier, and in an effort to make certain that all responsive documents had been produced, a broader review was made over the last two days. In the course of this review other papers have been identified which were responsive to plaintiff’s discovery requests and were not previously produced to plaintiff.” After receiving these “other papers,” plaintiff moved to reopen the evidence. I granted that motion. Thereafter, certain additional documents were submitted in evidence by agreement of the parties. Thus, as a result of defendants’ neglect in complying with their discovery obligations, plaintiff was prejudiced in the development of her pre-trial strategy and the resolution of this case was unnecessarily delayed. B. Remedies for the Limitations Immediately after plaintiff became aware of defendants’ discovery violations (and before she had obtained a copy of the tally sheet), she moved, pursuant to Fed.R. Civ.P. 26(g), 37(b), and 37(d), for sanctions. She requested that the defendants be precluded from offering any evidence concerning the votes of the tenured faculty in 1981 and 1983. This request was the culmination of plaintiff’s efforts to obtain the benefit of affirmative evidentiary sanctions such as adverse inferences and preclusion orders to overcome the effect of the eviden-tiary suppression caused by the erroneous privilege, documentary destruction, and discovery delay. My legal analysis of adverse inference sanctions and preclusionary remedies is set forth below in Sections III.B.l. and III.B.2., respectively. Instead of employing adverse inferences or preclusionary orders, I offered to remedy Harvard’s negligent suppression of evidence by reopening discovery and allowing plaintiff to make further inquiry unconstrained by the limitations of an academic privilege. This offer provided plaintiff with the opportunity to develop for herself a remedial program closely tailored to meet the problems created by, for example, defendants’ failure to disclose the tally sheet and other relevant information until the conclusion of trial in a four-year-old case. My offer, if accepted, could have made available to plaintiff — and the court — relevant evidence necessary to the determination of the ultimate issue in this case: whether defendants discriminated against plaintiff in denying her tenure. The plaintiff, however, rejected the offer and chose, as set forth more fully below in Section III.B.3., not to pursue further discovery. There is no doubt that a major problem in this litigation has been the unavailability of relevant evidence, caused by the assertion of an unwarranted privilege, the destruction of relevant tenure records, and the belated and begrudging disclosure of critical ballot documents such as the tally sheet. As a policy matter, however, I rejected the adverse inference and preclusion remedies proposed by plaintiff because they would have exacerbated the underlying problem further. Such remedies would have continued to circumscribe unnecessarily the evidence available for my fact finding. 1. The Adverse Inference Remedy for Document Destruction Defendants offered two reasons why I should not draw an adverse inference from the destruction of documents: (1) The files destroyed presumably included the tenure records of unsuccessful as well as successful male candidates. Defendants maintained that if the records of the unsuccessful males had been available, they would have shown that men were denied tenure on the same or similar grounds as plaintiff, and that the Business School’s promotion standards were applied in a consistent, gender-blind manner. They contended that the destruction of the records therefore hurt their case as much as, if not more than, plaintiff’s. (2) The records were inadvertently destroyed after the Business School sent them out for safekeeping. Defendants averred there was no intent to destroy evidence, and in fact every intent to preserve it. They maintained that the loss of the evidence was due to errors made at the Inactive Records Center, whose manager, Mr. Haas, was not directly affiliated with the Business School, and who had assured the Business School that he would personally see to the security of the relevant documents; and whose negligence accordingly should not be imputed to defendants. Defendants contended they should not suffer the extraordinary consequence of having a significant evidentiary inference drawn against them because someone over whom they had little or no control made a mistake. I found defendants’ first argument mer-itless. Speculation that destroyed documents may have proven helpful to defendants is hardly a reason not to draw a negative inference from what was at best negligent behavior on defendants’ part. While the records of unsuccessful male candidates could have aided defendants’ case, they also could have damaged defendants’ case, for instance, by showing that those men were denied tenure only because their records were substantially poorer than plaintiff’s. The point is that we do not know what those documents would have shown. We are left with speculation, attributable to defendants’ failure to do what they should have done. However, defendants’ failure was not intentional. And for that reason, I found compelling defendants’ second ground for opposing the negative inference. Although there was initial confusion as to whether the subject tenure records were sent to the Inactive Records Center for preservation or for destruction, long before the actual destruction of the records that confusion had been cleared up. Dean Currie specifically notified Amy Sugerman in December 1985 that the subject records were to be preserved. Amy Sugerman in turn passed this information on to Richard Haas, who gave her absolute assurance that the records would not be destroyed. Thus, five to six months before the records were actually destroyed, defendants had taken some precautions to make sure the records would be protected. Of course, in retrospect it is obvious that the precautions were inadequate and that the Business School should have done more to protect the records. Ms. Sugerman should, for instance, have requested that Mr. Haas immediately transfer the records to the General Counsel’s Office of the University. However, I refused to penalize defendants for having failed to take the most prudent course. Defendants were negligent, but they did not act in bad faith: they did not intentionally have the documents destroyed. First Circuit case law suggests that my authority to draw a negative inference against defendants is not wholly dependent upon a finding of bad faith. Under the principle adopted by the First Circuit in Nation-Wide Check, I “may receive the fact of the documents’] ... destruction as evidence that [defendants] fear[ed] that the contents would harm [them],” 692 F.2d at 217 (emphasis supplied), apparently regardless of whether defendants acted in good or bad faith. However, I am not obliged to draw that inference, and here I chose to exercise my discretion by not drawing it. I would, no doubt, have reached a different conclusion if plaintiff had produced any evidence showing that defendants destroyed the subject records to avoid disclosure in this litigation. However, the drawing of a negative inference under the circumstances of this case, an act which would be all but a declaration of victory for plaintiff, is unwarranted. Here, the evidence shows merely that a person — Richard Haas — who was not under the direct supervision or control of the Business School, made a mistake. To impute his error to Business School decision makers and declare that, as a result of it, defendants must set aside by default a tenure decision that was reached over painstaking hours by the tenured Business School faculty, would be an unduly harsh remedy. It is one I have chosen not to impose. See Allen Pen Co. v. Springfield, Photo Mount Co., 653 F.2d 17, 23-24 (1st Cir.1981) (Plaintiff “has not shown that the document destruction was in bad faith or flowed from the consciousness of a weak case. There is no evidence that [defendant] believed the [destroyed pieces of evidence] would have damaged it in a lawsuit. Without some such evidence, ordinarily no adverse inference is drawn from [defendant’s] failure to preserve them.”); Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874, 878 (Fed.Cir.1986) (“If a court finds that both conditions precedent, evidence destruction and bad faith, are met, it may then infer that the evidence would be unfavorable to the destroying party if introduced in court.”); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir.1985) (“The prevailing rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for the de-struction_ [The facts of this case] suggest that the documents were destroyed under routine procedures, not in bad faith, and thus cannot sustain the inference that defendants’ agents were conscious of a weak case.”) (citations omitted); S. C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258-59 (7th Cir. 1982) (Before a court may draw a negative inference from a party’s destruction of evidence, it must be convinced “that the party did so in bad faith.”) (citing Commercial Ins. Co. v. Gonzalez, 512 F.2d 1307, 1314 (1st Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (1975)). When Harley Holden, the Curator of the Harvard University Archives, learned of the destruction of the subject tenure records, he told Mr. Haas, “It’s a terrible mistake and it should not have happened.” Mr. Holden was correct. However, I find that although “terrible,” the destruction of the tenure records was in fact a mistake. It was not a purposeful or intentional act on the part of the defendants designed to suppress evidence. I find that it is more likely than not that the records were destroyed because of miscommunication between Mr. Haas and Ms. Glasser, and because the records were stored at the Inactive Records Center directly adjacent to boxes containing material for which Disposition Applications had been properly completed. For this the sanction of adverse inference would be disproportionate. 2. The Preclusionary Remedy for Discovery Default Faced with the belated discovery of documents concerning the ballots on her tenure candidacy, plaintiff requested that I punish defendants for their discovery default by precluding them from offering any evidence concerning the votes of the tenured faculty in 1981 and 1983. An order “prohibiting [a disobedient] party from introducing designated matters in evidence” is, of course, one of the sanctions available to a court faced with violation of its discovery orders. Fed.R.Civ.P. 37(b)(2)(B). However, although “[t]he district court has considerable discretion in policing alleged discovery transgressions[,] ... preclusion is a grave step, and by no means an automatic response to a delayed disclosure.” Freeman v. Package Machinery Co., 865 F.2d 1331, 1341 (1st Cir.1988). The Freeman court cited a Ninth Circuit precedent for the proposition that an “order excluding evidence should not be imposed where failure to make discovery [is] not willful.” Id. (citing United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir.1980)); cf. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam) (a district court may resort to the extreme sanction of dismissal for discovery violations attributable to “flagrant bad faith” and “callous disregard” of responsibilities). Although the question is a close one, I have concluded that defendants’ default here resulted not from willfulness but rather from negligence occasioned by the push and shove which documentary production in this case entailed. To be sure, the documents were the subject of an appropriate demand; the demand, however, was resisted verbally and the plaintiff did not follow up with a request for specific court action. I do not underplay the misleading character of defendants’ responses to plaintiff and the court, but, on balance, I believe that more foundation would have had to have been laid to show bad faith or willfulness here. I therefore exercised my “discretion not to impose sanctions.” Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 33 (1st Cir.1988), cert.q denied, — U.S. -, 109 S.Ct. 1135, 103 L.Ed.2d 196 (1989) (emphasis in original). 3. The Plaintiff’s Failure to Pursue Evidence Plaintiff gave four reasons for her refusal to take advantage of the remedial opportunity I afforded her to pierce the academic privilege and pursue further evidence. She contended that: (1) After four years of litigation she was emotionally and financially spent, and felt unable to bear the additional burden that the further imposition of discovery would have imposed; (2) Defendants were at fault for the late arrival of the documents and the burden should be on them to explain the dramatic swing in Ms. Jackson’s support — to the extent, defendants failed to carry this burden, negative inferences should be drawn against them; (3) Under a cost-benefit analysis, it would be highly unlikely, especially given defendants’ knowledge of plaintiff’s theory of the case, that anything definitive would turn up if further discovery were undertaken; and (4) Piercing the academic privilege would provide defendants with an appellate issue, collateral to the merits, that would be time consuming and would deflect attention from the heart of the case. Although I understood plaintiff’s analysis, I did not find that by rejecting the opportunity to pursue evidence plaintiff had entitled herself to either an adverse inference or a preclusionary sanction. Plaintiffs who take on large, well-endowed institutions are on notice that heavy emotional and financial costs are likely in the litigation, see generally G. LaNoue & B. Lee, Academics in Court — The Consequences of Faculty Discrimination Litigation (1987), and that the only thing predictable about litigation is that it will take unpredictable and time-consuming twists and turns. At every stage in the process, litigants must perform cost-benefit analy-ses and bear responsibility for the consequences of their decisions. The judgment by plaintiff here that piercing the academic privilege would not prove beneficial was a considered decision, but it was not a decision for which plaintiff could claim a favorable evidentiary construct as second prize. Defendants were at fault for the conduct of their discovery responsibilities. They deserved to be sanctioned for this behavior. However, the sanction needed to be one appropriate