Document 21

from The Harvard Crimson, December 14, 1998, pp. A-1, A-9

Berkowitz Prepares to File Formal Grievance Over Tenure Denial

by Jacqueline A. Newmyer

Peter Berkowitz, the associate professor of government who was denied a tenure appointment in April 1997, said he expects to file a formal grievance with the Faculty's Docket Committee in the next week.

The Docket Committee, made up of three Faculty members, may either dismiss Berkowitz's petition or convene an ad hoc grievance panel to consider his complaint.

In his grievance, Berkowitz states that "in two fundamental ways, Harvard failed to follow its own procedures" in the process of reviewing him for tenure, and his appeal to the docket Committee culminates in a demand for a new hearing.

Longtime University observers said Berkowitz's decision to protest his tenure denial on procedural grounds--rather than on the basis of discrimination--is unprecedented.

"I don't know of a situation where there's been this kind of appeal," said former Dean of the Faculty Henry Rosovsky, who is also a member of the Corporation, the University's chief governing board.

Berkowitz raises two broad procedural objections in his grievance. First, he alleges that the ad hoc committee convened to discuss his appointment was not well- constituted; some of its members lacked expertise in his field, while others were predictably antipathetic to his cause.

Second, Berkowitz charges that a colleague in the government department compromised the tenure review proceedings because he was able to exercise inordinate influence over other Faculty members.

In the year-and-a-half since Harvard President Neil L. Rudenstine elected not to grant Berkowitz tenure, the associate professor has enlisted the aid of campus heavyweights Martin H. Peretz, the publisher of the New Republic magazine and a social studies lecturer, and Charles R. Nesson ‘60, Weld professor of law at Harvard Law School (HLS).

Details of Berkowitz's appeal have been broadcast to the world over the Internet since Nesson included the case in his "Winter Evidence" course last year at HLS and his students created a Berkowitz Web site, which includes an exchange of letters between the professor and Harvard administrators.

Most controversially, the Web site lists the names of the members of Berkowitz's ad hoc tenure review committee, names that had been confidential.

With Peretz's financial assistance, Berkowitz said he has also engaged a Boston attorney, Matthew Feinberg, of Feinberg & Kamholtz.

"The thrust of the whole thing is a judgment on our part that we have not been fairly dealt with," Feinberg said.

The lawyer conceded that "outside legal action is a possibility" once Berkowitz has exhausted Harvard's internal avenues for appeal.

According to the University's "Guidelines for the Resolution of Faculty Grievances," the submission of a complaint to the Docket Committee constitutes the final step in an intracollegiate appeal.

Berkowitz said the Board of Overseers and the Joint Committee on Appointments remain possible authorities to whom he might direct his complaint. He has also not ruled out the option of suing the University if the Docket Committee finds against him, he said.

The Tenure Denial
By all accounts, Berkowitz was a controversial tenure candidate from the beginning.

At Harvard he was known as a conservative voice among his liberal colleagues, and he had become associated with an outspoken Straussian and conservative in the department, Kenan Professor of Government Harvey C. Mansfield Jr. ‘53.

When Markham Professor of Government Kenneth A. Shepsle, then chair of the government department, approached, him about pursuing tenure in July 1996, Berkowitz said he believed he "had a fighting chance," though he recognized there would be significant opposition.

Berkowitz had been teaching at Harvard for six years, the standard term before a junior professor is considered for tenure.
According to Rosovsky, who devoted a chapter of his 1990 book The University: An Owner's Manual to Harvard's procedure for tenure review, the process begins at the departmental level with an "executive committee" of tenured faculty.

These professors compile a list of possible candidates for promotion and then send out a "blind letter" to colleagues worldwide, requesting feedback on the merits of those under consideration.

On the basis of responses to the blind letter and personal opinions about the candidates, the department then votes to endorse one of them for tenure consideration.

According to a number of government professors, Berkowitz was endorsed by a majority of the department. He was not, however, endorsed unanimously.

At this stage, the tenure decision moves to the dean's office: "The dean and his principal academic advisors study the candidate's files," Rosovsky explains.

When the files has been approved, a tenured Faculty member appointed by the dean of the Faculty convenes an ad hoc committee of five scholars to consider the candidate. These academics meet the president to consider an appointment, and they hear testimony about the candidate from both friendly and hostile witnesses.

According to Rosovsky, although the invitations sent out to prospective ad hoc committee members--three experts in the candidate's field from outside the University and two generalists from Harvard--bear the president's name, the president is not really involved in their selection.

"It would be very rare for the president to make any changes in the list of those invited to serve on the ad hoc committee," Rosovsky said.

But Jeffrey Hazard, a professor at the University of Pennsylvania's law school sand a specialist in ethics, expressed a different sense of who is responsible for committee's constitution.

Hazard, who has served on a Harvard ad hoc committee, said they "are convened by President Rudenstine, and he can invite whomever he wants."

Professor of Anthropology Peter T. Ellison, who was in 1997 one of two associate deans appointed by Dean of the Faculty Jeremy R. Knowles to convene ad hoc tenure committees, was responsible for Berkowitz's committee. Ellison refused to comment for this article; his choice of scholars is one of Berkowitz's grievances.

Though Rosovsky writes,"the composition of the committee, and especially the choice of outsiders, can affect the outcome" of a tenure review, the former dean also states that it is the president who has final authority.

"De facto, the final decision rests with the president," Rosovsky writes.

Berkowitz's ad hoc committee including Leon Kass, an ethics and biology expert from the University of Chicago; University of Pennsylvania political scientist Ellen Kennedy; and Isaac Kramnick from Cornell University's political science department. The Harvard members of the committee were Starch Professor of Psychology Jerome Kagan and Professor of German Maria M. Tatar.

According to several sources, four of the five committee members advised Rudenstine not to grant Berkowitz tenure.

The Tenure Appeal
Berkowitz said he plans to allege Harvard violated its own standards for tenure review in the course of deliberations over his promotion.

"In this appeal we ask Harvard to respect its procedures and honor the worthy principles embodies in them," Berkowitz said.

He stressed that his complaint does not constitute a character assassination on any of the principals in his case, but his grievance dwells on the role of Professor of Government and Associate Provost Dennis F. Thompson in the deliberations over his appointment.

In an article that ran in the Nov. 25, 1996 issue of The New Republic, Berkowitz had harshly criticized a book Thompson co-authored. The review, titled "The Debating Society," was part of Berkowitz's dossier considered by the ad hoc committee.

Berkowitz's complaint about the composition of the ad hoc committee centers on the fact that only one of its members was on an original list of recommend scholars submitted by the government department when it endorsed Berkowitz for tenure.

The dean's office is under no compulsion to adhere to departmental suggestions in appointing committee members. But the University's "Guidelines for Tenure Review" stipulate that the ad hoc committee should be composed of "the ablest people" who will ensure that "nominees are judged strictly on their merits."

In his appeal, Berkowitz states that Kennedy, Kramnick and Kagan do not possess relevant expertise in his field. He also suggests that the majority of the committee would have been inclined to rule against him because of ideological differences, and so the membership failed to exhibit diversity of opinion.

None of the five panelists was willing to comment for this article.

But Professor of Law Richard D. Parker, an expert in procedural ethics, expressed his concerns about the composition of the deliberative team.

"It strikes me as a strange committee at best and probably unfair," he said.

Rosovsky outlines the goal of the ad hoc stage in his book, writing that the body is convened "to give the president the most neutral advice possible, unaffected by local friendships or prejudices."

Mansfield explained that "at different stages of consideration, outside advisors are brought in to give their opinions," as a way of reducing "biases to a minimum."

Mansfield said that in the Berkowitz case, the system broke down because partisanship infiltrated the deliberative process.

The ad hoc committee does not have a monopoly on influencing the ultimate decision-maker, Rudenstine. Specifically, Mansfield, said, "those in the chain of command" are in a position to affect the president's tenure verdicts.

According to Mansfield, this reality can work "either for good or for ill."

He offered that in spite of the potential pitfalls of the current tenure review process, he "wouldn't want a system of officials who were never in a position to take informal advice."

Berkowitz's second major complaint, however, related to the possibility that back- channel influence corrupted the process of his tenure review.

Because Thompson has a part-time administrative role in the provost's office, Berkowitz said his participation introduced "the power and the prestige of a high University official" into discussions at the departmental level.

Thompson rejected any suggestion that his status as a University official inflates his influence with other faculty members.

"It is false and insulting to suggest that my colleagues in the government department would defer to me or anybody else in that way," Thompson said. "Tenured faculty don't bow to anyone."

Berkowitz also said Thompson could have unduly affected Rudenstine — beyond asserting his opinion as a government professor — because his duties as associate provost include advising the president on curricular matters.

Thompson insisted, however, that his role in deliberations over granting Berkowitz tenure did not extend beyond the government department. He did not appear before the ad hoc committee, as he was out of town on the day it met.

"I participated in the department as I normally do, and I didn't play any role after the department," Thompson said.

But according to Rosovsky, every tenured Faculty member in the department of a candidate for tenure is obliged to send a confidential letter to the ad hoc committee explaining his or her vote at the departmental level.

Although he was under no compulsion to publicize his opinion, Thompson sent Berkowitz a letter explaining why he voted against him at the departmental level. The letter, which was marked confidential, entered the public domain when it was exhibited in Nesson's "Evidence" course.

Several of Thompson's colleagues were willing to assert — not for attribution — that his negative assessment had nothing to do with Berkowitz's critical book review.

"One can only hope that those who are given high-level decision-making authority know the perils involved and avoid the temptation to let other aspects of their job, or personal consideration, influence the decision they take," said Wells Professor of Political Economy Jerry R. Green, a former Harvard provost.

Green said when he was provost, he recused himself from tenure reviews involving candidates from his own economics department.

"Even if I agreed with the majority in my department, as I probably would have," he said, "there would be a perception that I had ... [exercised disproportionate] influence."

In addition to the allegations about the immoderate extent of Thompson's departmental and official influence, Berkowitz states in his grievance that Thompson's status as the husband of Carol Thompson, associate dean for academic affairs, constitutes a further invitation to impropriety.

Berkowitz sets forth in his grievance his concern that because Dennis Thompson is a member of the central administration and Carol Thompson serves in the dean's office, he might be considered her superior within the administration.

Carol Thompson, however, denied in an interview with The Crimson both of Berkowitz's charges.

She said that although in her capacity as a associate dean she would normally be part of the group that reviews departmental blind letters and candidate dossiers before they are submitted to ad hoc committees, she "wasn't involved at all in the review of the Berkowitz recommendation [from the government department]."

"I just felt it was my husband's own field, and I shouldn't be involved," Thompson said.

To Berkowitz's assertion about the impropriety of her husband's potentially serving as her superior, Thompson offered an equally succinct response.

"None of his functions in any way relate to my job," she said.

Berkowitz's Future
Many University faculty and administrators were unwilling to comment on Berkowitz's case — not only because it is confidential, but also because they said they did not want to divulge the reasons for his tenure denial.

One high-ranking official expressed concern that Berkowitz "has become obsessed with this [case]" and is "discrediting himself" by harping on the Harvard setback rather than moving on to another institution.

Others, including students in Nesson's "Evidence" course, said they believed the law professor's involvement in the case has turned it into a media spectacle.

"Your apparent enthusiasm for structural change in Harvard's tenure review process is at odds with Berkowitz's goal," one student addressed Nesson in a posting on the course Web site.

Feinberg said Nesson had both his own and Berkowitz's permission to use the case in his class because he said he thinks the case had didactic potential.

But another University source said he believes "Berkowitz might have been encouraged by Professor Nesson, who's enjoying this."

"Charlie has tenure," the source added. "I wish he would consider the reputation and future of the young person he's supposed to be helping."

Most people close to the case were very skeptical about Berkowitz's chances for winning a new tenure hearing.

Mansfield said the appeal procedure "is rarely invoked" and that "essentially the president has the last word."
Rosovsky echoed this sentiment, acknowledging that "at some point, there is no more appeal."

"In our system, the president is the final authority even though technically, one can appeal to the governing board and the overseers," Rosovsky said.

"If the docket committee decides it was unfair, what then?" Asked the high-ranking administrator, seemingly exasperated with talk of Berkowitz's appeal.

"If the grievance committee decides there was bias, what then?" He added. "If you disagree with a decision of the Supreme Court, what do you do?"