Document 40
9 November 1998
Carol J. Thompson
Associate Dean for Academic Affairs
9 University Hall
Harvard University
Cambridge, MA 02138
Dear Dean Thompson:
I am writing to you, and enclosing an Addendum from my advisor, Professor Charles Nesson, in connection to my appeal
of President Rudenstine's decision of April 1997 to reject the Government Department's recommendation of February
1997 that I be promoted and awarded tenure.
At this particular juncture, I am proceeding in accordance with the "Guidelines for the Resolution of Faculty
Grievances." The "Guidelines" cover cases in the Faculty of Arts and Sciences in which "proper
procedures have not been followed in decisions regarding promotion or reappointment." Having failed, in accordance
with stage 1 of the "Guidelines," to resolve my concerns satisfactorily with the Chair of my Department,
Professor Roderick MacFarquhar, I write to you, under clause 2 of the "Guidelines," which directs a faculty
member bringing forward a grievance to "consult on a confidential basis with the Associate Dean for Academic
Affairs, or with a designated equal employment opportunity officer within the Faculty of Arts and Sciences, as
appropriate."
I write to you notwithstanding the letter of November 3 from John B. Fox, Secretary of the Faculty, which I found
under the door of my office on November 4. Noting my intention to contact the Associate Dean for Academic Affairs,
Mr. Fox wrote:
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In this case we would like to suggest that you consider raising the matter with Professor Marjorie Garber or Dean
Elizabeth Doherty, both designated affirmative action officers in FAS. |
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But Mr. Fox provided no reasons or explanation for his recommendation. After Professor Nesson and I considered
Mr. Fox's suggestion, we decided that since our complaint concerns the administration of FAS procedures, you were
the officer, among those provided by FAS "Guidelines," to whom it was appropriate for me to turn. As
you yourself pointed out in your memo of March 27, 1998 concerning the tenure review process in the Faculty of
Arts and Sciences, the Associate Dean for Academic Affairs shares responsibility for ensuring the integrity of
the procedural aspects of tenure review. If either Secretary Fox or Dean Knowles considers you inappropriate as
a mediator of my complaint, let him state the reason and refer the matter appropriately.
Allow me now to inform you of the recent history of my appeal.
Toward the end of summer, at the suggestion of former Secretary of the University Michael Roberts, Provost Harvey
Fineberg, and Vice President and General Counsel Anne Taylor, I wrote to Dean Knowles. In a letter of August 27,
1998, I asked Dean Knowles whether the Office of the Dean of the Faculty of Arts and Sciences had procedures applicable
to my appeal of President Rudenstine's decision. Constructed with the aid of Professor Charles Nesson and attorney
Matthew Feinberg, the appeal was addressed to the Joint Committee on Appointments. I have enclosed a copy of our
as yet unanswered letter of May 26 to the Joint Committee.
In a letter of September 17, John Fox, Secretary of the Faculty, writing on behalf of Dean Knowles, sent me a copy
of the "Guidelines for the Resolution of Faculty Grievances." Mr. Fox asked whether my letter to Dean
Knowles was "intended to be a formal complaint pursuant" to the "Guidelines."
In a letter of October 14, I explained to Mr. Fox that my August 27 letter was not so intended. In fact Professor
Nesson, Mr. Feinberg, and I have always doubted the authority of the Dean's Office to review a decision of the
President at whose behest the Dean sits (as Mr. Feinberg indicates in his as yet unanswered letter of September
17 to Dean Knowles). And the "Guidelines" to which we were directed by Mr. Fox give no indication that
the Dean is so authorized.
Moreover, since our appeal calls into question the manner in which the Dean's Office administered my tenure review,
the Dean's Office may feel itself incapacitated to review the matter by the principle embodied in section of 4
its own "Guidelines," which requires that only those "who have had no conflict of interest or involvement
of significance in the issue" may sit on the "ad hoc grievance panel" appointed by the Dean. In
addition, the stated policy of the Faculty of Arts and Sciences is that it is unprofessional conduct for one individual,
involved in an "amorous relationship," to exercise power, whether to the detriment or benefit, over his
or her partner ("Harvard University Sexual Harassment and Unprofessional Conduct: Guidelines in the Faculty
of Arts and Sciences"), which might seem to encompass your review of a matter in which your husband is so
intimately involved.
Despite the shortcomings of the procedures set forth in the FAS "Guidelines," Mr. Feinberg, Professor
Nesson, and I concluded that I should take advantage of all opportunities that Harvard makes available to have
my grievances heard. So, in accordance with stage 1 of the "Guidelines," I, along with Professor Nesson,
met with Professor Roderick MacFarquhar, Chair of the Government Department, to seek a mutually satisfactory resolution.
Professor MacFarquhar explained that it was not within his power, as Chair, to reverse the President's decision,
and so recommended that we proceed to the next stage in the "Guidelines."
I have enclosed our letter of October 16, 1998 to Professor MacFarquhar. In it we summarize our reasons for believing
that wrongs were committed in my tenure review at the level of the Department.
In his letter to us of October 21, which I have also enclosed, Professor MacFarquhar, while insisting that he is
unable as Chair to redress our grievances, does not dispute our allegations concerning defects in the composition
of the ad hoc committee. Nor does he dispute our claims about procedural impropriety connected to Professor Thompson's
involvement in my tenure review. Rather, Professor MacFarquhar argues that the character of his colleagues is too
good and the rewards that the Central Administration can confer are too small for votes to be affected and opinions
to be shaped by the presence in departmental deliberations of a high ranking member of the University administration.
But surely the principle that "it is incumbent upon those with authority not to abuse, nor to seem to abuse,
the power with which they are entrusted" ("Harvard University Sexual Harassment and Unprofessional Conduct:
Guidelines in the Faculty of Arts and Sciences") applies to the Government Department.
Professor MacFarquhar's appeal to the good character of his colleagues and his downplaying of the temptations Professor
Thompson introduced into departmental deliberations do not obviate the need for fair process. Indeed, recognition
of the necessity for fair process is already, in a variety of ways, built in to Harvard's tenure review system.
We question no one's character, but we know from your memo of March 27 that regardless of individual character,
Associate Deans routinely recuse themselves from matters touching on tenure review in their own departments. We
understand from Professor MacFarquhar's letter that in the composition of the ad hoc committee, "The Dean
has the final word, presumably to ensure that no Department can pack the committee to ensure success." And
we learn from Harvard's own tenure review guidelines that the President, so far from relying on the objectivity
of department members, is obliged to consult with scholars from other departments and from outside the university
who are "chosen for their objectivity and competence to judge whether the proposed appointment represents
the best direction for the development for the department, as well as for their ability to appraise the qualifications
of the nominee."
The good character in his colleagues to which Professor MacFarquhar refers is crucial, but in a large institution
with much power and prestige on the line, it is, as Harvard's own practices and principles in a variety of ways
proclaim, no substitute for fair process. Indeed recent scholarship on ethics and the professions reaffirms the
old truth that good character is manifest in respect for fair process and in such acts as recusing oneself when
otherwise one would introduce bias, or conflict of interest, or the appearance of abuse of power into formal deliberations
and administrative procedures.
In our letter to Professor MacFarquhar, we suggested that Harvard's University Professors, as a body, be asked
to review the process of my tenure as well as the merits. Although he doubts "that a collective of the University
Professors would be the best body to review my case," we are heartened by Professor MacFarquhar's belief that
the group of University Professors "would be a very appropriate body for the President to consult if he decided
that the process of the review should be looked at again." We hereby amplify our suggestion to include in
the reviewing group University Professors emeriti and past University presidents, thereby adding even greater credibility
and balance.
The wrongs that were committed at the level of the Department in my tenure review are also wrongs committed at
the Dean's level because, as your memo of March 27 points out, the Dean's Office has responsibility for ensuring
fair process in tenure review.
In his letter, in connection to the composition of the ad hoc committee, Professor MacFarquhar states that
"the department's recommendations are simply that, recommendations." He also explains, as I have mentioned,
that "The Dean has the final word, presumably to ensure that no Department can pack the committee to ensure
success." Surely, however, it is an abuse for the Dean's Office to use its power, deliberately or unwittingly,
to ensure a candidate's failure at the Presidential level. Yet in constructing my ad hoc committee, the
Dean's Office produced a committee that was heavily weighted against my political and theoretical viewpoints. Four
of the five member on the ad hoc committee that advised President Rudenstine about my tenure were not drawn from
the list the Government Department was asked to submit to the Dean of the Faculty. All four of the members of the
ad hoc committee not drawn from the Department's list opposed my tenure. All four show evidence of bias or lack
of relevant expertise. And the Dean's Office passed over and failed to even consult with or invite to sit on the
ad hoc committee many widely-acknowledged experts in my field.
Professor MacFarquhar also states that President Rudenstine "can, and doubtless does, consult anyone he wants
in the ad hoc process, and not just the formal committee, and he can attribute whatever weight he chooses to whatever
opinion he hears." This is not quite right. As I have already indicated in passing, Harvard's formal guidelines
require that the President consult at the ad hoc hearing with a formal committee of a particular sort: the
ad hoc committee must be composed of experts who are impartial and bring to the committee relevant expertise. For
reasons we spelled out at length in our May 26 letter, the defects in the ad hoc committee assembled by
the Dean's Office in my case prevented President Rudenstine from discharging this formal obligation
And while we believe that it was wrong for the Government Department to permit Associate Provost and Professor
of Government Dennis Thompson to participate in my tenure review at the departmental level, we also believe that
the Dean's Office has responsibility for ensuring that such wrongs do not occur.
In sum, we believe that wrongs in my tenure review were committed at the level of the Department, that wrongs were
committed at the Dean's level, and that the Dean's Office failed in its obligation to ensure a fair and unbiased
tenure review.
Sincerely,
Peter Berkowitz
Associate Professor of Government
cc: Jeremy R. Knowles, Dean of the Faculty of Arts and Sciences
John B. Fox, Jr., Secretary of the Faculty and Secretary to the Faculty Council
____________________________________________________________________________________________
ADDENDUM
Dear Dean Thompson:
Let me clearly state the focus of Peter's complaint. We believe the Dean's Office failed in its obligation to Harvard,
to President Rudenstine, to Associate Provost, Director of the Program in Ethics and the Professions, and Professor
Thompson, to the Faculty of Arts and Sciences, to the Government Department, to Professor Bonnie Honig, and to
Professor Peter Berkowitz to insure a fair and unbiased tenure review. Instead, the Dean's Office structured an
ad hoccommittee that appears to have been jimmied, and allowed a review to go forward in which the President of
the University was exposed to deciding the tenure of a candidate who had intellectually attacked and was vigorously
opposed by his oldest and best friend, long term supporter, close advisor, and member of his own staff.
Sincerely,
Charles Nesson
Weld Professor of Law
Director, Berkman Center