Document 54

from the Harvard Crimson, February 11, 1999, pp. A-1, A-5, A-9

Berkowitz Close to Suing Harvard Over Tenure

by Jacqueline A. Newmyer

Unless the University acts soon, it will likely face litigation brought by Associate Professor of Government Peter Berkowitz, whose bid for a tenure appointment was rejected by Harvard President Neil I. Rudenstine in April 1997.

"With reluctance, we feel ourselves increasingly compelled to contemplate a lawsuit," Berkowitz said in a statement to The Crimson.

If he chooses to file a contract action, Berkowitz said he would seek invalidation of the decision not to grant him tenure.

In spite of his endorsement by a majority of the Government Department, Berkowitz's bid for promotion was rejected after what he charges was an unfair review.

Since the spring of 1997, a handful of Harvard luminaries who said they are motivated by concern about the school's "fundamentally flawed appointment procedure" have taken up Berkowitz's cause.

The associate professor's campus allies include Weld Professor of Law Charles R. Nesson ‘60 of the Harvard Law School (HLS) and Martin H. Peretz, publisher of the New Republic magazine and a lecturer on social studies.

According to Berkowitz's attorney, Matthew Feinberg of the Boston firm Feinberg & Kamholtz, future legal action would be based on the charge that Harvard failed to follow its own procedural standards in evaluating Berkowitz for the tenure appointment.

Feinberg also indicated that his client's suit would be filed in the Middlesex County Superior Court, a venue that has traditionally been less propitious than federal courts for the University.

Precedent suggests that Berkowitz might seek monetary damages from the University in a suit, according to Feinberg.

While the attorney confirmed that restitution in the form of payment is "certainly available" to Berkowitz, Feinberg said, "We haven't gotten to that stage."

Berkowitz echoed his lawyer, saying that "all options are open."

With the associate professor's Harvard teaching contract set to expire at the end of this term, he said in addition to pondering a courtroom confrontation with the University, he will be pursuing job options in the next few months.

Faced with Berkowitz's imminent departure, Nesson stressed the pressure to resolve the tenure dispute.

"Time is of the essence," Nesson said.

The Fight Within Harvard
Since Rudenstine's decision not to promote him almost two years ago, the associate professor has followed the directive of the University's own "Guidelines for the Resolution of Faculty Grievances" in conducting his appeal.

Over a month ago, Berkowitz took the last step outlined in this official Harvard publication. He submitted a formal grievance to an elected three-member Docket Committee of the Faculty.

In accordance with University policy, Berkowitz sent his statement to the committee through the office of Dean of the Faculty of Arts and Sciences Jeremy R. Knowles.

Professor of Economics David M. Cutler ‘87, Richards Professor Chemistry Cynthia Friend and Pearson Professor of Modern Mathematics and Mathematical Logic Warren D. Goldfarb ‘69 the members of the Docket Committee — have been charged with assessing the legitimacy of Berkowitz's complaint. None would comment for this story.

The threshold set out in the University guidelines for proceeding to a full investigation of Berkowitz's case is low.

Unless the Docket Committee finds his filing to be "clearly without merits," Harvard procedure calls for the formation of a three-member ad hoc grievance panel to probe the associate professor's allegations.

Thomas Professor Government and Sociology Theda Skocpol, who won tenure at Harvard after appealing her department's decision not to recommend her, expressed doubt about the efficacy of the University's guidelines in a situation like Berkowitz's.

"I don't know that the University has an appropriate grievance mechanism for reviewing a decision of the president," Skocpol said.

Her own tenure case was resolved without litigation, but Skocpol's complaint centered on Faculty proceedings rather than a ruling from the office of the University president.

Berkowitz's grievance — now before the Docket Committee— raises two broad objections to the manner in which Harvard handled his bid for tenure.

First, Berkowitz challenges the qualifications of the ad hoc committee convened to assess his scholarly aptitude. He charges that some of its members lacked relevant expertise and that others were predictably hostile in his candidacy because of their academic biases.

Second, Berkowitz charges that Whitehead Professor, Director of the Program in Ethics and the Professions and Associate Provost Dennis F. Thompson — a colleague of Berkowitz's in the Government Department — played an improper role in the consideration of his appointment.

In a statement to The Crimson, Dean Knowles confirmed his receipt of Berkowitz's formal complaint.

"According to the procedures of the Faculty, [I] have forwarded it to the elected members of the Docket Committee," Knowles said.

Knowles declined to speculate about when the committee might announce a decision.

"I do not know their [the Docket Committee's] intentions with respect to a time frame," said the dean.

The Berkowitz Camp
Since he filed the grievance last year, neither Berkowitz nor his advisers has received any information about the committee's progress.

In early January, Berkowitz and Nesson sent Knowles and the members of the Docket Committee a letter requesting the opportunity to address them in person.

The letter elicited a brief reply from the dean's office recommending that Berkowitz direct all further correspondence with the committee through Secretary of the Faculty John B. Fox ‘59.

Nesson called this the latest snub in what he perceives to be a pattern of uncooperative behavior from the administration.

The HLS professor accused Knowles of deliberate "delay," sending "snippy responses through assistants" and "being generally unforthcoming."

Berkowitz also expressed frustration at the way he has been treated by the University.

It has been over a month since I submitted a formal grievance to Dean Knowles and the members of the Docket Committee," Berkowitz said.

"I have still not received an answer even though the Docket Committee is only asked to conduct a "preliminary screening."

"If my case has even a single scintilla of merit," he added, "the committee is obliged to pass me on [to an ad hoc grievance panel]."

Nesson summed up the situation, offering his own dissatisfied conclusion: In spite of Berkowitz's compliance with Harvard's procedures for mounting an appeal, "nothing's happened."

Berkowitz v. Harvard?
Considering the obstacles his client has confronted thus far in his appeal, Feinberg said that he expects to "have filed something by the end of the academic year."

The attorney added, however, that the University might ward off a suit by doing "something unusual." Namely, said Feinberg, Harvard might try accommodating rather than stonewalling Berkowitz.

Frankfurter Professor of Law at HLS Alan M. Dershowitz said that, should the matter go to court, the case would not be without precedent.

"Professors have brought Harvard to court before," said Dershowitz, who once filed a suit against the University.

If they do proceed to the litigation state, Berkowitz's team said they would seek "specific performance action on the part of the University."

As Nesson and Feinberg explained, their success in invoking the specific performance doctrine would hinge on their ability to portray tenure at Harvard as a unique good.

"The institution has set itself up as having unique standing in the academic world, and holds itself out as giving tenure only to the finest," Feinberg said.

Thus, according to Nesson, the right to a just consideration for the appointment is "invaluable," and Harvard's breach of contract — its failure to adhere to its own standards of fairness in evaluating Berkowitz — deprived him of a singular opportunity.

Feinberg offered a measured assessment of the chances of success in a court fight with the University.

"It seems to me we have a strong claim, a claim that has succeeded in the past," he said.

Nesson was less conservative in his forecast.

"If we survive a motion to dismiss, which we should then we'd proceed to discovery," Nesson said.

At this stage, the law professor explained, Berkowitz's team would gain access to Harvard's files concerning his tenure review.

"Once we're in discovery," Nesson said, "I think they're dead."