For

One cannot vote in a club, church, labor union, or the like unless one is a member in good standing and meets other requirements. those who meet these requirements, voting is a right. The United

28

States Constitution recognizes voting in political elections to be a right of qualified voters. The right of qualified voters to vote in the public or private domain is recognized by custom and common

law.

A duly appointed university committee whose business is to make judgments and express those judgments by vote has a right, even duty to do so. The results are made public, but individual votes or ballots are secret. This customary practice is not unlawful. not trying to stand above the law and he is not asking any special priviledge for university professors.

Dinnan is

The expression "secret ballot" calls forth all sorts of suspicions not unlike the Watergate cover-up and numerous scandals in the federal government. The secret ballot used by promotion committees was extremely simple and straightforward. It consisted of writing on slips of paper words such as "yes", "no", "abstain", folding them and passing them up to the chairperson who shuffled and counted them. There is nothing in the vote or ballot that implies discrimination or nondiscrimination. If there was discrimination in the promotions and tenure process, then it will have to be found elsewhere and not in the votes taken.

There are good reasons for conducting the promotions and tenure process with considerable confindentiality and for use of a secret ballot.

Candidates, their friends, their rivals, and administrators could exert undue pressure upon committees. Promotion and tenure committees should be protected from undue pressures. They should be able to deliberate carefully and honestly and objectively without harassment or fear of recrimination.

The Dinnan case can be summarized very briefly. This summary of it is not the words of James A. Dinnan, but he fully concurs in

or with them. Any government that attempts to dictate to its citizens what they may think, or punishes them for honest expression of their thoughts by vote, when they are duly and properly qualified to vote, or punishes them for not revealing their vote later, when recriminations could be taken against them, is an unprincipled and tyrannical government unworthy of the support of the soverign people. This is . the heart, the "nitty gritty," of the Dinnan case. James A. Dinnan violated no law, yet he was fined and imprisoned without trial by jury.

This paper began with reference to federal control of education. That control was called the background against which to view the Dinnan case, but it was also said that the background could hardly be distinguished from the foreground. This is due to some more recent aspects of federal control which endanger fundamental freePresident Bok of Harvard University has spoken of these freedoms as essential to a university and described them in the way that Justice Frankfurter once described them--to determine for itself on academic grounds who may teach, what may be taught, how it should

doms.

29

be taught, and who may be admitted to study." President Bok

believes that these matters are increasingly coming under government

30

regulation. As they do, essential freedoms are lost and politics

replaces academic functions.

The Dinnan case exhibits a clear

violation of the first of these essential freedoms.

1. Theodore Brameld, Education For The Emerging Age (Harper and Row, Publishers, Inc.: New York, 1965). Chapter 14 is entitled "The Bugaboo of Federal Control," pp. 145-151.

2. Senator Daniel Patrick Moynihan, "The University and The State," a lecture presented on the 100th anniversary of the Columbia University Graduate School, September 30, 1980. Also see, "State vs

Academe," Harper's, vol. 261, no. 1567, December, 1980, pp. 31-40 for a slightly different version of this paper.

5. The University of Georgia Bulletin, 1978-79; Facult Regis

ter, p. 14.

6. The Athens Banner-Herald/The Daily News, Sunday, July 13, 1980, p. 1. In 1979-80, when Dr. Blaubergs was last considered for promotion and tenure, one man and two women in her department were promoted ("The Systems Summary," vol. 16, no. 4, April 1980, pp. 15-16) and three women but no men were granted tenure ("The System Summary," vol. 16, no. 5, May, 1980, pp. 21-22).

7. The Athens Observer, Thursday, January 22, 1981, p. 1.

8. The University of Georgia Guidelines For Promotion and

Appointments (Revised October 1, 1973).

1

9. Maija S. Blaubergs vs. Board of Regents of the University System of Georgia, Civil Action 79-42, Athens, Order May 8, 1980.

10. Maija S. Blaubergs, Plaintiff vs. Board of Regents of the University System of Georgia, Defendent, Civil Action 79-42, Athens, Brief in Support of Motion for Contempt May 26, 1980.

11. Ibid.

12. Letter, Mr. John K. Larkins, Jr., Attorney at Law, to Judge Wilbur D. Owens, May 28, 1980 calling attention to the unconstitutionality of Mr. Marshall's request.

13. Maija S. Blaubergs vs. Board of Regents

Re: James A.

Dinnan, Contempt Hearing, Criminal Action 80-4, Athens, June 2 and 3;

1980.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. The news media, both newspapers and television, covered

Dinnan's surrender in academic robe and hood.

19. The Athens Daily News, Thursday, July 10, 1980, p. 1.

It seems that Judge Owens made a mistake in finding Dinnan to be in

criminal contempt.

20.

also as

Dinnan was viewed as a hero by many common people and

a hero in the cause of academic freedom. The Board of Trustees of the University of Scranton has voted to confer upon him an honorary degree on May 31, 1981. The letter from President William J. Byron to Dr. Dinnan December 23, 1980 stated that the degree would be awarded, "In recognition of your witness to principle, and in admiration of your courage."

38.

21.

The Wall Street Journal, Thursday, September 16, 1980, p.

22. Sidney Hook, "Freedom In Jeopardy Time to Strike the

Alarm Bell," Measure, Supplement, September, 1980.

23. Albert Shanker, "Where We Stand," The New York Times, Sun

day, October 5, 1980.

24. University Centers For Rational Alternatives, Dinnan Statement, January 10, 1981.

25. The Atlanta Journal and The Atlanta Constitution, Sunday, August 23, 1980, p. 1A.

26. In the United States Court of Appeals For The Fifth Circuit In Re: Janes A. Dinnan, J. Ralph Beaird and Walter Ray Phillips attorneys for Amici Curiae.

27. Amici Curiae Brief, pp. 6-7.

28.

The United States Constitution, Amendments 19 and 24.

29. Derek C. Bok, "The Federal Government and the University,"

The Public Interest, no. 58, Winter, 1980, p. 81.

30. Ibid.

84-280 0-83-15

[From the Chronicle of Higher Education, January, 1981]

POINT OF VIEW

(By John H. Bunzel)

THE CASE OF THE JAILED GEORGIA PROFESSOR: LET'S CUT THROUGH THE

INTELLECTUAL SMOG

James Dinnan, professor of education at the University of Georgia, was sent to jail for three months last summer for refusing to comply with U.S. District Judge Wilbur Owen's order to reveal how he had vote in 1979 on a faculty committee that recommended 6 to 3 against the promotion of Jaija S. Blaubergs, a nontenured assistant professor in the college of education. Subsequently her own department voted against giving her tenure.

Denied promotion on nine separate occasions over a three-year period, she ap pealed to the campus affirmative-action office, which set up a special committee of three women (two of whom were selected by Ms. Blaubergs herself) and two men to review her charges of sex discrimination. By majority vote, it dismissed them as unjustified. Still maintaining that the reasons she had been denied tenure and promotion were her sex and her involvement in feminist activities, she sued the university.

In April, 1980, Ms. Blaubergs' lawyers asked for a deposition from Professor Dinnan. He answered everything that was asked, including questions about the criteria he used when making judgments regarding promotion and tenure. But he declined to divulge his vote, contending that it was confidential and protected by both university policy and the Constitution.

In June, Judge Owens found him in contempt of court, and, on July 3, dressed in his academic robes to show that the government was, in effect, "locking up the University of Georgia," Professor Dinnan surrendered to federal marshals. Now released, he still refuses to disclose his vote, although his lawyers tell him it could mean going back to jail.

His case raises two related questions of profound importance to the academic community:

May a court compel a professor to reveal a vote cast under a secret-ballot procedure established by the university to insure the integrity of the voting process, or is that secret ballot legally privileged from disclosure in federal discovery proceedings? What are the costs to higher education when the court intervenes in matters involving such academic rights as that of making faculty tenure and promotion decisions?

Ms. Blaubergs's lawyer asserted that "laws pertaining to discrimination will not mean anything if this cloak of secrecy can be placed over the process of deciding who will be promoted and tenured." Thus the important issue is whether the plaintiff's right to know how Mr. Dinnan voted should prevail over the processor's right to privacy and over the integrity of the academic review process.

However, a brief outline of the record does not by itself tell the full story of what the Dinnan case portends for academic freedom and autonomy. Judge Owens demonstrated a remarkable insensitivity to such university-governance procedures as confidential personnel decisions. For example, he compared the secret ballot to his fraternity blackball system. "Nobody had to stand up and have backbone enough to be counted," he said. But the secret ballot at the University of Georgia is not a "blackball" system. Whatever may have been the practice in the judge's fraternity, no single vote on tenure or promotion is ever determinative. Further, the secret ballot permits a vote to be cast free of pressure from other faculty members, administrators, students, or off-campus community groups.

In an amici curiae brief, J. Ralph Beaird and Walter Ray Phillips, dean and associate dean, respectively, of the Georgia law school, stated that the judge's summary dismissal of Professor Dinnan's claim that his vote was privileged reflected "an attitude flatly incompatible with -the duty imposed upon him to evaluate the competing demands at issue with care and disinterest." The crucial point is that in the face of Mr. Dinnan's claim that the privacy of his vote was absolutely a right (not an absolute right), the judge had an obligation to weigh the alleged need for discovery against the interests protected by non-disclosure. "It is plain," Mr. Beaird and Mr. Phillips wrote, "that if Judge Owens had engaged in such balancing, he would have concluded with little difficulty that Dr. Blaubergs's need for the particular information sought in this case was minimal"-after all, learning if Mr. Dinnan voted for or against her promotion would not establish whether there was sex discrimination-"and that the interests protected by nondisclosure were substan