Brian Leiter continues his coverage of the litigation surrounding USC Law School's denial of tenure to Shmuel Leshem in 2013. Leshem v. University of Southern California, No. B296102 (Cal Ct. App. Jan. 28, 2021) (citations omitted):
Plaintiff and appellant Shmuel Leshem appeals from the trial court’s denial of his first amended petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Plaintiff was an associate law school professor at defendant and respondent the University of Southern California. Defendant denied plaintiff tenure and plaintiff challenged that decision internally through defendant’s administrative processes which culminated in the denial of plaintiff’s grievance. Plaintiff then filed a petition for writ of administrative mandamus seeking an order that defendant set aside its decision denying his grievance and reconvene his tenure review using proper policies and procedures. We reverse and remand with directions. ...
Plaintiff moved in the trial court to compel defendant to produce and augment the administrative record with his tenure dossier. The trial court denied the motion. In his opening brief on his first amended writ petition, plaintiff renewed his request that the trial court order defendant to produce the tenure dossier.
In its response to plaintiff’s motion to compel, defendant stated: “To the extent the Court believes it may need to review the confidential tenure dossier to adjudicate [plaintiff’s] claims, to protect the confidentiality of [defendant’s] tenure review process and the privacy interests of the professors who provided sincere reviews of [plaintiff’s] scholarship based on [defendant’s] representations that those reviews would be kept confidential, the Court should review the documents in camera, without requiring [defendant] to produce the documents to [plaintiff] or his counsel, before making any further order.” It restated that position in its brief in opposition to plaintiff’s first amended writ petition. The trial court did not review plaintiff’s dossier in camera.
Plaintiff’s grievance in part concerned the tenure committee’s claimed consideration of the referee reports allegedly contained in his dossier. His writ petition asserted procedural violations in the grievance proceeding centered on the dossier and its contents. Without reviewing the dossier in camera, the trial court found that the evidence established that the referee reports were not included in the tenure dossier or referenced in the subcommittee report. Accordingly, it ruled, the grievance panel properly concluded that the dossier did not contain documents relevant to plaintiff’s grievance. Moreover, the court ruled, public policy favors protecting confidential tenure review materials from disclosure.
The trial court abused its discretion in denying plaintiff’s motion to compel without first reviewing the tenure dossier in camera. The court could not properly consider plaintiff’s procedural unfairness claims without determining, in the first instance, whether the tenure dossier included the referee reports or references to the substance of those reports. Further, in camera review is a routinely used procedure to protect confidentiality.
On remand, the trial court is to order defendant to lodge the tenure dossier under seal with the court. The court is to review the tenure dossier to determine whether it contains referee reports or references to the substance of the referee reports. If the dossier includes such reports or references to the substance of those reports, the court shall exercise its discretion in determining whether additional materials must be produced to plaintiff and thereafter conduct further proceedings as appropriate. If the dossier does not include such reports or references to the substance of those reports, the court is to reenter judgment in defendant’s favor.