dissenting.
What divides this panel is a philosophical difference in two separate, but in this case, related, broad concepts: the extent to which an EEOC administrative subpoena may cast an immense discovery net that compromises privacy expectations of innocent third parties without the EEOC being put to the most meager burden of asserting a factual justificatory predicate for its actions; and the extent, if any, to which an employment discrimination claim based on professional tenure denial in a four person Department of French in a small liberal arts college differs from a discrimination claim against a multinational corporation such as Shell Oil Company.
The majority believe that there is absolutely no difference between what may be obtained by an EEOC administrative subpoena when a claim for lifetime tenure and position is implicated in the context of a small liberal arts college or when made in the context of a typical commercial employer. Notwithstanding the wealth of materials already furnished the EEOC by the college relating to Montbertrand’s application for tenure, the majority would not place any burden whatsoever on the EEOC to show that it cannot intelligently evaluate the claim until it is in possession of case histories of every tenured position implicating confidential communications of innocent third parties. I reject both approaches because I abhore dogmatic application of the law. I reject slot machine justice, what Roscoe Pound called “Mechanical Jurisprudence,” 1 because it has been my experience that in many cases everybody may be a bit right, that nobody is completely right or completely wrong, and that each case has its own pathology. Thus, automatic and unbridled EEOC subpoena searches cannot be the law; and if it is, I am reminded of Chamfort’s aphorism: “It is easier to make certain things legal than to make them legitimate.”
The claimant contends that he was discriminated against because he was a French native. The EEOC has been given virtually everything contained in claimant’s personnel files. It seems to me that the administrative subpoena should not be en*118forced in its entirety unless the EEOC demonstrates compelling necessity for rooting through confidential files of other faculty members. Certainly, the doctrine of res inter alios acta is alive and kicking today, and I believe that before a federal agency should be allowed to poke through the confidential files of strangers to an employment discrimination claim, it should be held to some justificatory burden before a federal judge, rather than being anointed with a ukase to fish in any waters selected by it, and it alone.
We have federal courts to draw the line against arbitrary and capricious federal agency actions and this case cries out for preliminary judicial adjudication, instead of agency action gone wild. The facts presented here require that a district court exercise a highly refined discretion and be particularly sensitive to the valid interest of confidentiality in the tenure review process before ordering wholesale production of confidential documents of strangers to this proceeding at this very preliminary stage of an investigation. Because neither the district court nor the majority accord this sensitivity, I dissent. I would reverse the judgment of the district court.
I.
Several facts underlying this appeal are critical. Appellant Franklin and Marshall is a small liberal arts college with a student enrollment of 1,900. Montbertrand sought a tenured position in a French Department that consists of four persons. As is the norm in institutions of higher education, the decisional process in awarding tenure involves not only the college administrative staff, but faculty as well. Initial tenure decisions are made by the Professional Standards Committee, all five members of which are elected by the faculty. This committee makes tenure recommendations to the Dean and President of the College. In Montbertrand’s case, the committee— comprised of faculty members only — recommended that Montbertrand be denied tenure because of his deficiencies in scholarship and in participation in college governance activities. The College administration adopted this recommendation and the administrative and judicial proceedings leading to this appeal followed.
The majority assert that the College has refused to produce “the bulk of the material sought” by the EEOC. Maj. op. typescript at 112. This characterization is not fair. The College has provided or agreed to provide a considerable amount of data.2 I believe the district court should have analyzed this data carefully and on the basis of such analysis, required the EEOC to show that it had established a sufficient factual *119and legal basis to warrant the serious in-trusión into the College’s tenure review process in other cases. At a very minimum, the district court should satisfy itself of the necessity to breach the wall of confidentiality obviously present on this small campus.
jj
Colleges and universities occupy a unique position in our society They are not commercial employers: they are not , . „ ! ,, government agencies. Perhaps more than , , . any other institution, they embody and promote under the rubric of academic freedom our cherished values of free inquiry and robust debate on a variety of subjects. As the majority correctly observe, academic freedom has constitutional underpinnings, “[Tjhough not a specifically enumerated constitutional right, [academic freedom] long has been viewed as a special concern of the First Amendment.” Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1378) fWHU plurality opinion). The majority further note that « , , . ,, , . ... j, , central to the determination of who may teach,’ or who will receive tenure, has been the system of peer review by confidential evaluations and recommendations of tenured faculty.” Maj. op. typescript at 114. Recognizing these crucial factors, the majority then analyze the legislative history of Title VII and conclude that this history somehow eradicates the importance of confidentiality in peer evaluations when the EEOC subpoenas documents generated in ° , the tenure review process. The majority s analysis and application of legislative history to support the wholesale disclosure of all confidential materials simply proves too much.
The cited legislative history convincingly demonstrates that Congress intended Title VII to apply to universities and colleges. No one can argue to the contrary. The majority nonetheless rest their ratio deci-dendi entirely upon an analysis of the 1972 amendment to Title VII that eliminated the exemption for academic institutions. We are thus treated to a classic fallacy of irrelevance, or ignoratio elenchi. The error is made by attempting to prove something that has not been denied, to-wit that the 1972 amendment to Title VII took in institutions of higher learning. The question under consideration, however, is not whether Title VII was so amended but whether, on the strength of a mere concluallegation of discrimination, the EEOC . ... , ,. , » . , . . , is permitted the kind of intrusion into the , . , . T , tenure review process it seeks here. I find , . , .... , n0 Support '^he legislative history for the pr;oposltlon that ConSress foresaw the posSlblhty> mucb less mtended> that a college instructor may, with a blunderbuss allegation of discriminatory treatment against Frenchmen, devoid of factual specificity, gain unfettered access to the confidential personnel files of all his colleagues. The troublesome and recurring problem of statutory voids was recognized many decades ago by John Chipman Gray:
The ^ difficuMes of s0. , , ,. . , ,, , . called interpretation arise when the legis- , ,. , . „ , , latlon has “? ,meanmg at all; , when the questl0n whlch 1S raised m the statute never occurred to $ when what the JudSes have to do is’.not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point Fad been present.3
., , , , ...... At bottom always is the task of divining , tbe f*entl\n of tbe le^islature- Learned Hand has observed:
When a judge tries to find out what the government would have intended which it did not say, he puts into its mouth things which he thinks it ought to have said, and that is very close to substituting what he himself thinks right---Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, *120if we are to realize the hope that we can collectively rule ourselves.4
Such an approach requires us to decide if Congress in fact intended a massive, uncontrolled intrusion into the rights of privacy and confidentiality implicated in the tenure review process of innocent third parties. I do not think so. I believe that the congressional intent to eliminate employment discrimination can be fully served without conferring on the EEOC such absolute and unyielding investigatory powers to embark upon a fishing expedition into confidential materials. Discovery expeditions into records of commerce and industry implicate only money and time; they do not implicate confidential evaluations of professional performance uttered by intimate peers with the expectation of privacy.
III.
I do not agree with the majority’s assumption that academic institutions are the same as any other employer. At least insofar as their administrative and governance structures are concerned, colleges and universities differ significantly from garden variety private employers.5 In the context of application of the provisions of the National Labor Relations Act the Supreme Court has counseled that “principles developed for use in the industrial setting cannot be ‘imposed blindly on the academic world.’ ” NLRB v. Yeshiva University, 444 U.S. 672, 681, 100 S.Ct. 856, 861, 63 L.Ed.2d 115 (1980) (citation omitted). The unique characteristics of the tenure review process led the court in EEOC v. University Of Notre Dame Du Lac, 715 F.2d 331 (7th Cir.1983), to recognize a qualified academic review privilege. In Notre Dame, the court stated:
It is clear that the peer review process is essential to the very lifeblood and heartbeat of academic excellence and plays a most vital role in the proper and efficient functioning of our nation’s colleges and universities. The process of peer evaluation has evolved as the best and most reliable method of promoting academic excellence and freedom by assuring that faculty tenure decisions will be made objectively on the basis of frank and unrestrained critiques and discussions of a candidate’s academic qualifications. See Johnson v. University of Pittsburgh, 435 F.Supp. 1328 (W.D.Pa.1977). Moreover, it is evident that 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 in order that the University might grant tenure only to the most qualified candidates based on merit and ability to work effectively with colleagues, students, and the administration. For these reasons, academicians who are selected to evaluate their peers for tenure have, since the inception of the academic tenure concept, been assured that their critiques and discussions will remain confidential. Without this assurance of confidentiality, academicians will be reluctant to offer candid and frank evaluations in the future.
Id. at 336.
IV.
In a subpoena enforcement proceeding the court should abjure rote application of dogma against a small college. Rather it should engage in a balancing analysis that will accord sufficient weight to the valid and competing interests at issue. The court must avoid slavish allegiance to conceptual jurisprudence, the now-discredited Begrijfsjurisprudenz, the target of our great masters, Holmes, Pound, and Cardozo; rather, the court should always consider the decision’s consequence upon the social order. The judiciary has an obligation to accommodate, whenever possible, competing interests without adopting a “zero sum” decisional structure that permits the reckless advancement of one interest irrespective of destruction wreaked upon other *121salutory competing interests. Yet the majority refuse to undertake this balancing analysis, opting instead to assert that somehow the legislative history of Title VII compels intrusion into the peer review system in every tenure decision made by the institution. At this time, it is not necessary for me to reach the question whether there is an academic review privilege, see EEOC v. University of Notre Dame Du lac, 715 F.2d 331 (7th Cir.1983). In this case, I am completely comfortable with the approach adopted in Gray v. Board of Higher Education, 692 F.2d 901, 903 (2d Cir.1982), in a discovery context:
Any finding that information is protected from discovery must reflect a balancing between, on the one hand, the parties’ right to discovery, which stems from society’s interest in a full and fair adjudication of the issues involved in litigation and, on the other hand, the existence of a societal interest in protecting the confidentiality of certain disclosures made within the context of certain relationships of acknowledged social value.
Extended logically, the majority’s absolutist approach elevates the ethereal factor of relevancy as the only restraint on the EEOC subpoena process. At the administrative subpoena level there is absolutely no limitation to what is or is not relevant. There is no complaint filed in the district court, no factual averments of “a short and plain statement of the claim,” as required by Rule 8, Federal Rules of Civil Procedure, no stated boundaries to the allegation of discrimination. To accept the majority’s formulation is to indulge in a classic Catch-22: “In discovery we have the right to examine anything that is relevant, but we can’t tell what is relevant until we finish our discovery.” Because of the danger of harm created by the rupture of confidentiality, we cannot lend jurisprudential dignity to Tweedledee’s soliloquy: “If it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.”6
V.
I now turn to the various subpoena requests. I agree that Montbertrand’s tenure review files should be produced with the names and other identifying criteria redacted. But records and documents pertaining to other faculty members, who were granted or denied tenure since November 7, 1977, implicate compelling confidentiality interests of strangers to these proceedings. Requests for these materials must first be evaluated by the district court in light of the considerable data already provided to the EEOC by Franklin and Marshall and by the data contained in Montbertrand’s tenure file. Unless these documents disclose some modicum of substance to Montbertrand’s claim of national origin discrimination, and some indication that these additional materials will prove the claim, we should not permit the serious violation of other faculty members’ confidentiality that production of records will entail. Because the district court did not engage in this analysis, I would remand for appropriate findings.
To be sure, the EEOC is not required to establish a prima facie case in behalf of Montbertrand as a prerequisite to compelled production of documents. The majority properly cite EEOC v. Shell Oil Co., 446 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984), for the proposition that in a subpoena enforcement proceeding the EEOC need not establish that the charge is “well founded, verifiable, or based on reasonable suspicison.” But the question here is not the quality of the factual predicate underlying the claim, but it is whether any factual predicate whatsoever is present to merit the assault on the confidential files of innocent strangers to this proceeding.
What I propose, congruent with the Second Circuit’s approach in Gray, is a flexible, case by case approach that puts a modest burden on the EEOC whenever its request impinges upon “the confidentiality of certain disclosures made within the context of certain relationships of acknowledged social value.” Gray, 692 F.2d at 903. At a minimum, based on materials already discussed such as in this case, the EEOC should be required to set forth a justificatory factual predicate for the confidentiality or privacy intrusions instead of naked conclusory allegations. Where, as here, confidentiality expectations of strangers are implicated, the subpoena should not, without court approval, be used as a tool in search of that predicate at the expense of privacy rights of innocent parties and of the integrity of the tenure review process.
. Pound, Mechanical Jurisprudence, 8 Colum.L. Rev. 605 (1908).
. This material includes:
1. Materials from Montbertrand’s tenure file including:
(a) Third and Second Year Reviews;
(b) Letters to Montbertrand on the status of his tenure review; and
(c) Documents of Montbertrand supporting his tenure application;
2. Compilation by the College of the national origin of tenure candidates from 1977 to 1981;
3. Untitled list of faculty members, country of birth, present citizenship, and citizenship at birth;
4. Evaluations of Montbertrand’s writings from four outside professors identified by name and college or university;
5. Faculty merit evaluation forms for Mont-bertrand;
6. Correspondence relative to Montbert-rand’s tenure denial;
7. January 21, 1981, letter from College President to Montbertrand discussing the fact that deficiencies in scholarship and general contributions were not offset by governance performance in other areas;
8. Handbook of College;
9. Faculty Handbook 1978;
10. Inter-office Memo from Chairman of French and Italian Departments, Angela Jean-net, to Professional Standards Committee, January 1980, regarding Third Year review of Montbertrand. The Memo provides information on work performance, publications, grants, professional activities, participation in college and department activities, and evaluation recommending Montbertrand for tenure with attached reappointment of probationary faculty.
11. COTE form results (Student Evaluations of Teaching Effectiveness);
12. Grade surveys;
13. Enrollment data;
14. Recommendations of Professional Standards Committee in each tenure case; and
15. Actions taken by the President in each tenure case.
. J.C. Gray, Nature and Sources of Law 172-73 (2d ed. 1921).
. L. Hand, The Spirit of Liberty 100, 109-110 (2d ed. 1954).
. [A]uthority in the typical "mature” private university is divided between a central administration and one or more collegial bodies____ This system of “shared authority” evolved from the medieval model of collegial decision-making in which guilds of scholars were responsible only to themselves____ At early universities, the faculty were the school. Although faculties have been subject to external control in the United States since colonial times, ... traditions of collegiality continue to play a significant role at many universi-ties____
NLRB v. Yeshiva University, 444 U.S. 672, 680, 100 S.Ct. 856, 861, 63 L.Ed.2d 115 (1979).
. L. Carroll, Through the Looking Glass, Chap. 4.