| Document 48 6 January 1999 Jeremy R. Knowles Dean of the Faculty of Arts and Sciences (Chair of the Docket Committee) University Hall 5 Harvard University Cambridge, MA 02138 Members of the Docket Committee Professor David Cutler Department of Economics Harvard University Professor Cynthia Friend Department of Chemistry and Chemical Biology Harvard University Professor Warren Goldfarb Department of Philosophy Harvard University Dear Dean Knowles and Members of the Docket Committee: I wish to file a formal grievance in accordance with section 3 of the Harvard University "Guidelines for the Resolution of Faculty Grievances" in the Faculty of Arts and Sciences.1 In accordance with section 1 of the "Guidelines," I, along with my advisor, Professor Charles Nesson of Harvard Law School, tried to resolve my grievances with Professor Roderick MacFarquhar, chair of the Department of Government.2 This effort proved unsuccessful. 1See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. All enclosures can be found in the bound collection, "Selected Documents concerning the Case of Peter Berkowitz," included with this letter. 2See <http://cyber.harvard.edu/eon/evidence/rm1016pbcn.html> and Document 36 in the enclosed materials; and <http://cyber.harvard.edu/eon/evidence/pbcn1021rm.html> and |
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2 in accordance with section 2 of the "Guidelines," I sought to consult with Associate Dean for Academic Affairs Carol J. Thompson.3 This effort too proved unsuccessful. Having exhausted the informal mechanisms for the resolution of grievances provided by the "Guidelines," I now turn to you. 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."4 In two fundamental ways, Harvard failed to follow its own procedures in the process that culminated in President Rudenstine's decision in April 1997 to reject the Department of Government's recommendation of February 1997 that I be promoted and awarded tenure: I. Four of the five members on the ad hoc committee assembled and approved by the Office of the Dean for the purpose of advising President Rudenstine on my tenure showed bias, conflict of interest, or lack of relevant expertise. II. Associate Provost of the University,5 Director of the Program in Ethics and the Professions,6 and Professor of Government7 Dennis F. Thompson compromised the integrity of the tenure review process in my case by taking part in deliberations in the Department of Government and by participating by means of his confidential letter to the Dean in the deliberations of the Office of the Dean, the ad hoc committee, and the president. Professor Thompson's involvement in my tenure review compromised the process in four ways: A) Professor Thompson, a member of both the Office of the Provost and the Office of the President in his role as associate provost of the University, inherently and unavoidably exercised unfair influence in my tenure review Document 37 in the enclosed materials. 3 See <http://cyber.harvard.edu/eon/evidence/ct119pb.html> and Document 40 in the enclosed materials. 4 See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. 5 See "Staff, Office of the Provost, Harvard University," at <http://www.provost.harvard.edu/bios> and Document 8 in the enclosed materials. 6 See "Program in Ethics and the Professions, Harvard University," at <http://www.ethics.harvard.edu> and Document 11a in the enclosed materials. 7 See Harvard University Department of Government Faculty Directory, at |
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3 by introducing the power and prestige of a high university official and member of the Central Administration into departmental deliberations. B) Professor Thompson, in my tenure review, violated a fundamental norm of procedural fairness embodied in many of Harvard's formal procedures and established practices by serving as both judge and party to the case. He was a judge in the case inasmuch as he was employed, as associate provost of the University, as an official advisor to President Rudenstine in connection to academic issues inextricably related to my tenure. And he was a party to the case inasmuch as he opposed my tenure as a professor in the Department of Government. By participating in my tenure review at the level of the department, the level of the dean, and the level of the ad hoc committee hearing, Professor Thompson exposed President Rudenstine, the final judge in tenure decisions at Harvard, to deciding a case in which a member of the Office of the President was involved as an interested party. C) Professor Thompson's participation in my tenure review created a conflict of interest for the dean of the Faculty of Arts and Sciences and the deans who serve under him. The Office of the Dean is responsible for forming ad hoc committees and ensuring that procedures have been fairly administered in tenure review. Professor Thompson, in his role as associate provost of the University, holds a major position in the Office of the President, which oversees the Office of the Dean. Thus Dean Knowles and the associate deans were asked to impartially administer a tenure review in which a prominent member of the office that supervises them was involved as a faculty member and an interested party. D) Professor Thompson's role as associate provost of the University and his participation in my tenure review as an interested party give rise to appearances of abuse of power because his spouse is Associate Dean for Academic Affairs Carol J. Thompson, who was administratively connected to my tenure review in a variety of potentially decisive ways. This offends the stated policy of the Faculty of Arts and Sciences, which provides 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.8 And according to Harvard's published policy statement, distributed to the faculty by the Office of the Dean, the standard in such situations is an appearance standard: 8See "Harvard University Sexual Harassment and Unprofessional Conduct: Guidelines in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/hushuc.html> and Document 5 in enclosed materials. |
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4 Implicit in the idea of professionalism is the recognition by those in positions of authority that in their relationships with students or staff there is always an element of power. It is incumbent upon those with authority not to abuse, nor to seem to abuse, the power with which they are entrusted.9 I wish to emphasize that these grievances--both concerning the composition of the ad hoc committee and concerning Professor Thompson's participation in my tenure review--focus on procedural flaws and do not address the motives or character of those involved. At the same time, Professor Nesson and I believe that the flaws I have enumerated, separately and together, fatally compromise the process by which President Rudenstine reached his decision to deny my tenure. Section 3 of the "Guidelines for the Resolution of Faculty Grievances" directs the grievant to provide "a detailed account of the circumstances and grounds on which the grievance is based."10 I will be glad to do so, first by reviewing the circumstances of my appeal and then by elaborating the grounds of my grievances. * * * Circumstances of the Appeal11 On December 5, 1997, attorney Matthew Feinberg sent a letter on my behalf to the Joint Committee on Appointments.12 In his letter to the Joint Committee, Mr. Feinberg asserted fundamental defects in the process that culminated in President Rudenstine's decision to deny my tenure. Mr. Feinberg requested that the Joint Committee review the entire process, set aside President Rudenstine's decision, and establish a new process for fairly considering my tenure. 9 Ibid. 10 See <http://cyber.harvard.edu/eon/evidence/grfg.html and Document 4 in the enclosed materials. 11 For a chronology of the tenure review and appeal, see <http://cyber.harvard.edu/eon/ evidence/berkowitz.html>. 12 See <http://cyber.harvard.edu/eon/evidence/jca125mf.html> and Document 23 in the enclosed materials. The Joint Committee is recently established and little known. It is composed of members drawn from the Corporation and the Board of Overseers and chaired by President |
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5 Mr. Feinberg never received a reply to his letter from the Joint Committee. Instead, Harvard Vice President and General Counsel Anne Taylor summarily rejected Mr. Feinberg's request, notwithstanding that she also represents the president whose decision the Joint Committee was asked to review. In her letter of December 29, 1997, Ms. Taylor explained that she "made inquiry" but could find "no evidence" to support any of the allegations that the tenure review process in my case was unfair.13 Therefore, she had "no basis for recommending to the Joint Appointments Committee that the matter be reconsidered."14 Ms. Taylor made no assertion that fairness is not required in tenure review at Harvard. And she indicated that but for her finding of lack of evidence, the Joint Committee was prepared to review my complaint and consider the fairness of the tenure review process in my case. Subsequently, Mr. Feinberg arranged a meeting with Ms. Taylor to discuss the character and quality of her "inquiry." To help focus the discussion for a meeting on January 30, 1998, he wrote to Ms. Taylor to share his concerns about the tenure review process at Harvard and her review of the process in my case: . . . I would be interested in the nature, scope, and content of your inquiry. Your review led you to conclude that there was no evidence of a denial of due process and no evidence of hostility, bias, or conflict of interest and, therefore, no basis for recommending that the Joint Committee on Appointments reconsider Peter's case. I would not expect you to provide details of your fact finding in your letter to me, but I do think that Peter and I are entitled to know the fact-finding process you went through -- with whom you spoke, what was reported to you, etc. -- so that we are satisfied (not unlike a litigant in the appellate process) that your inquiry was a thorough and objective one and that your conclusion that the procedures were fully complied with was justified by the record you created.15 At the meeting on January 30th, Ms. Taylor refused to provide any information about her fact- finding process. At the same time, she assured Mr. Feinberg that her investigation had been thorough and objective. We now know through our own investigation that Ms. Taylor's "inquiry" was at best 13 See <http://cyber.harvard.edu/eon/evidence/mf1229at.html> and Document 24 in the enclosed materials. 14 Ibid. |
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6 perfunctory and yielded judgments that do not withstand scrutiny. Ms. Taylor failed to interview several key figures in the review process, including witnesses at the ad hoc committee hearing who testified on my behalf, such as Professor Harvey C. Mansfield and Professor Roderick MacFarquhar. Indeed, Ms. Taylor did not even contact me, the grievant, as part of her "inquiry." These omissions are sharply at odds with principles of fair process embodied in the Harvard University Faculty of Arts and Sciences "Guidelines for the Resolution of Faculty Grievances.16 The fundamental flaws in Ms. Taylor's "inquiry" have had serious consequences. By her own account in her letter of December 29, 1997, but for her finding of lack of evidence the Joint Committee on Appointments would have reviewed my case. Thus, Ms. Taylor's quick and incomplete inquiry blocked my access to a body whose authority over my appeal she herself affirmed. And Ms. Taylor's flawed inquiry has delayed my appeal for over a year. In her December 29th letter, Ms. Taylor invited Mr. Feinberg to make available any evidence we had of unfair process in my tenure review. Accordingly, four month later, after uncovering on the basis of our own investigation serious and substantial evidence of procedural improprieties, I, along with Mr. Feinberg and Professor Nesson, prepared a second letter to the Joint Committee on Appointments. In response to a draft of our letter, which we had posted on our web site, Michael Roberts, then secretary of the University and assistant to the president, wrote to Professor Nesson in a letter of May 22, 1998.17 Mr. Roberts suggested that we turn to the dean of the Faculty of Arts and Sciences, since the issues that we raised in our draft letter "involve a faculty member of the Faculty of Arts and Sciences." Then, contradicting Vice President and General Counsel Anne Taylor, Mr. Roberts declared, without explanation, that the Joint Committee on Appointments was "not an available or appropriate forum" for my appeal of President Rudenstine's decision. However, both Mr. Robert's suggestion and his declaration seemed to betray a misunderstanding of our appeal and our reasons for addressing it to the Joint Committee on Appointments. First, although one of the fundamental flaws in my tenure review process did "involve a member of the Faculty of Arts and Sciences," one of the fundamental flaws did not. Our complaint about the composition of the ad hoc committee made no mention of a member of the 16 See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. 17 See <http://cyber.harvard.edu/eon/evidence/cn522mr.html> and Document 28 in the enclosed materials. For Professor Nesson's reply by e-mail on May 28, 1998, see <http://cyber.harvard.edu/eon/evidence/mr528cn.html> and Document 30 in the enclosed materials. |
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7 Dean responsible for assembling and approving the ad hoc committee and from the action of the president, who, because of the flawed composition of the ad hoc committee, was prevented from complying with the procedural requirement that he consult with scholars who are impartial and recognized experts in the candidate's field at the ad hoc committee hearing over which he presides. Second, the member of the Faculty of Arts and Sciences involved in our appeal, Professor Dennis Thompson, was no ordinary faculty member but was also associate provost of the University and, by virtue of this position, the sole member of the Faculty of Arts and Sciences who at the same time was a member of the Office of the President. Third, it is doubtful whether the dean of the Faculty of Arts and Sciences, who sits at the president's pleasure, has authority to review a decision of the president.18 In contrast, the members of the Joint Committee on Appointments, drawn as they are from the Corporation and the Board of Overseers, are independent of the president and he, in important respects, serves at their pleasure.19 Fourth, the dean of the Faculty of Arts and Sciences and the members of his office appeared to be biased in my case since the appeal calls into question actions on the part of the Office of the Dean. Fifth, Mr. Roberts provided no explanation in his May 1998 letter as to what had changed such that the Joint Committee on Appointments, whose availability and appropriateness for my appeal had been affirmed five months before by Vice President and General Counsel Anne Taylor in her letter to Matthew Feinberg of December 29, 1997, had ceased to be "an available or appropriate forum." Accordingly, in a letter of May 26, 1998, we wrote for a second time to the Joint Committee on Appointments.20 In that letter we explained in detail our reasons for believing that members of the ad hoc committee that advised President Rudenstine about my tenure showed 18 For the relation between the Office of the Dean and the Office of the President in the governing structure of Harvard University, see <http://vpf-web.harvard.edu/factbook/96-97/ page3.htm> and The Harvard Guide, pp.78-79, and for both Document 7 in the enclosed materials. 19 For the governing structure of the Harvard University Central Administration, see <http://vpf-web.harvard.edu/factbook/95-96/page2.htm> and The Harvard Guide, pp. 80-81, and for both Document 6 in the enclosed materials. 20 See <http://cyber.harvard.edu/eon/evidence/jca526pbmfcn.html> and Document 29 in the enclosed materials. |
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8 bias, conflict of interest, or lack of relevant expertise.21 Also, citing the memo on tenure review in the Faculty of Arts and Sciences issued on March 27, 1998, by Associate Dean for Academic Affairs Carol J. Thompson (addressed to "Department Chairs in the Natural and Social Sciences" with instructions "to make it available to your junior faculty members"),22 and appealing to the practice of former Provost Jerry Green (now professor in the Department of Economics and at the Business School), we argued that participation in my tenure review by Associate Provost of the University and Professor of Government Dennis Thompson impaired the integrity of the process. And we attached to our letter 37 questions surrounding my tenure review that were We have yet to receive answers to our questions or a reply to our May 26th letter. Indeed, no member of the Harvard administration has to date formally acknowledged the letter: not the members of the Joint Committee on Appointments to whom it was addressed; not Vice President 21 In our May 26th letter we misidentified one member of the ad hoc committee. We wrongly asserted that Jerome Bruner, a Professor of Psychology at New York University, was a member. In fact the figure whom we mistook for Professor Bruner was Jerome Kagan, Professor of Psychology at Harvard and, as co-director of the Program in Mind, Brain, Behavior, a member of the Office of the Provost. In a letter to Professor Bruner of September 17, 1998, we expressed our regret for the error. We also expressed regret that Harvard, which has known since February of our mistaken belief, chose not to inform us of our error. Indeed, in May of 1998 Professor Nesson wrote to both Associate Provost and Professor of Government Dennis Thompson and to General Counsel Anne Taylor requesting that they correct errors of fact in our account of the ad hoc committee review. Both, however, chose not to respond. For our letter to Professor Bruner, see <http://cyber.harvard.edu/eon/evidence/ jb917pbmfcn.html> and Document 34 in the enclosed materials. For Professor Nesson's e-mails to Professor Thompson and Vice President and General Counsel Anne Taylor, see <http://cyber.harvard.edu/eon/evidence/dt57cn.html> and Document 26 in the enclosed materials; and <http://cyber.harvard.edu/eon/evidence/dtat59cn.html> and Document 27 in the enclosed materials. It should be emphasized that the mistake in our May 26th letter does not weaken our complaint about the ad hoc committee because, as I argue below, Professor Kagan's participation in the ad hoc committee review itself raises serious questions about bias, conflict of interest, and lack of relevant expertise. 22 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. |
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9 and General Counsel Anne Taylor who in her response of December 29, 1997, to our first letter of December 5, 1997, to the Joint Committee on Appointments invited us to show our evidence; nor Dean Knowles, to whom we have twice sent a copy of our May 26th letter.23 Toward the end of summer, at the suggestion of then Secretary of the University Michael Roberts, Provost Harvey Fineberg, and Vice President and General Counsel Anne Taylor, all of whom communicated with Professor Nesson, I wrote to Dean Knowles. In a letter of August 27, 1998 (in which I enclosed the May 26th letter to the Joint Committee on Appointments), 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.24 In a letter of September 17, 1998, John Fox, secretary of the Faculty of Arts and Sciences, writing on behalf of Dean Knowles, sent me a copy of the "Guidelines for the Resolution of Faculty Grievances."25 Mr. Fox asked whether my August 27th letter to Dean Knowles was "intended to be a formal complaint pursuant" to the "Guidelines." In a letter of October 14, 1998 (copies of which were sent to Dean Knowles and President Rudenstine), I explained to Mr. Fox that my August 27th letter was not so intended.26 In fact, Mr. Feinberg, Professor Nesson, and I have always doubted the authority of the Office of the Dean to review a decision of the president at whose behest the dean sits, as Mr. Feinberg indicated in his as yet unanswered letter to Dean Knowles of September 17, 1998, concerning several problems connected to the manner in which Harvard has handled my appeal.27 And the "Guidelines" to which we were directed by Mr. Fox give no indication that the Office of the Dean is authorized to review, much less alter or overturn, a decision of the president. 23 I included a copy of our May 26th letter to the Joint Committee on Appointments in my letter of August 27, 1998, to Dean Knowles. See <http://cyber.harvard.edu/eon/evidence/ jk827pb.html> and Document 31 in the enclosed materials. I also included the May 26th letter in my letter of November 9, 1998, to Dean Carol Thompson, a copy of which I sent to Dean Knowles. See <http://cyber.harvard.edu/eon/evidence/ct119pb.html> and Document 40 in the enclosed materials. 24 See <http://cyber.harvard.edu/eon/evidence/jk827pb.html> and Document 31 in the enclosed materials. 25 See <http://cyber.harvard.edu/eon/evidence/pb917jf.html> and Document 33 in the enclosed materials. 26 See <http://cyber.harvard.edu/eon/evidence/jf1014pb.html> and Document 35 in the enclosed materials. 27 See <http://cyber.harvard.edu/eon/evidence/jk917mf.html> and Document 32 in the enclosed materials. |
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10 Moreover, since my appeal calls into question the manner in which the Office of the Dean administered my tenure review, we thought that the Office of the Dean might feel itself incapacitated to review the matter by the principle embodied in section 4 of its own "Guidelines for the Resolution of Faculty Grievances," 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.28 Despite the shortcomings of the procedures set forth in the FAS "Guidelines" and our doubts about their applicability to my appeal, 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, on October 14, 1998, in accordance with section 1 of the "Guidelines," I, along with Professor Nesson, met with Professor Roderick MacFarquhar, chair of the Department of Government, to seek a mutually satisfactory resolution. Professor MacFarquhar explained that it was not within his power, as chair, to set aside the president's decision, and so recommended that we proceed to the next stage in the "Guidelines." He also suggested that Professor Nesson and I write him a letter summarizing our reasons for believing that several wrongs, both in connection to the formation of the ad hoc committee and in connection to the involvement of Professor Thompson in departmental deliberations, were committed in my tenure review at the departmental level. In a letter of October 16, 1998, we wrote to Professor MacFarquhar as he requested.29 And Professor MacFarquhar replied promptly and courteously reiterating that he was not in a 28See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. For an analysis of the inherent conflict of interest when members of an institution are called upon to judge whether colleagues have complied with formal procedure or codes of professional ethics, see Dennis F. Thompson, "Both Judge and Party," in The Brookings Review, Fall 1995, pp. 44-48, at <http://cyber.harvard.edu/eon/evidence/bjp.html> and Document 13 in the enclosed materials. According to Thompson, allowing members of an institution or profession to judge their own violates the fundamental norm of procedural ethics against serving as both judge and party in the same cause. Thompson argues that colleagues who have worked together in the past and must work together in the future will find it hard to be objective in judging members of their institution or profession. And Thompson contends that in reviewing colleagues, personal and professional interests are likely to impair one's judgment because finding against a colleague may implicate one's own conduct within the institution. Both considerations apply to the review of my appeal by the Office of the Dean. Thompson notes approvingly that many professionals, including academics, have begun to incorporate into their institutional arrangements the principle that "one should not judge in one's own cause." See "Both Judge and Party," p. 46. 29See <http://cyber.harvard.edu/eon/evidence/rm1016pbcn.html> and Document 36 in the enclosed materials. |
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11 position to resolve our grievances.30 The next stage in the grievance procedure, according to section 2 of the "Guidelines," is 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.31 On November 3rd, Professor Nesson announced in an e-mail sent to all faculty membersin the Department of Government our intention to consult with Associate Dean for Academic Affairs Carol J. Thompson.32 On November 4th, I found a letter of November 3rd from John Fox, secretary of the Faculty of Arts and Sciences, under the door of my office.33 Noting my intention to consult with the associate dean for academic affairs (but declining to identify her by name), Mr. Fox, on behalf of the Office of the Dean, identified by name other deans with whom I might instead consult: 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.34 But Mr. Fox provided no reasons or explanation for his surprising suggestion. After Professor Nesson and I considered Mr. Fox's suggestion, we decided that since our complaint concerned the administration of FAS procedures, Dean Thompson was the officer, 30 See <http://cyber.harvard.edu/eon/evidence/pbcn1021rm.html> and Document 37 in the enclosed materials. 31 See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. 32 See <http://cyber.harvard.edu/eon/evidence/govfac113cn.html> and Document 38 in the enclosed materials. 33 See <http://cyber.harvard.edu/eon/evidence/pb113jf.html> and Document 39 in the enclosed materials. 34 Ibid. |
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12 was appropriate for me to turn.35 As Dean Thompson herself pointed out in her 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.36 In my letter to Dean Thompson of November 9, 1998 (which contained an Addendum from Professor Nesson as well as a copy of our May 26th letter to the Joint Committee on Appointments and our correspondence with Professor MacFarquhar), I restated our view that the composition of the ad hoc committee and the participation, both at the departmental level and ad hoc committee level, by Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson impaired the process in my tenure review.37 I pointed out that both fundamental flaws in the process involved wrongs committed at the level of the dean because the Office of the Dean has responsibility for forming ad hoc committees and for ensuring fair process at the departmental level. I also noted that given Harvard's published policy statement, which provides 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, Dean Thompson might feel herself unable to review a matter in which her husband was so intimately involved. In a letter marked "Personal and Confidential," which I received on November 17, 1998,38 35 In a letter of November 24, 1998, Professor Nesson and I notified Dean Knowles that it had come to our attention that a member of the Office of the Dean, on or before November 6th, may have communicated confidentially by e-mail (without informing me) with the senior faculty in the Department of Government about Dean Thompson's role in my appeal. See <http://cyber.harvard.edu/eon/evidence/jk1124pbcn.html> and Document 43 in the enclosed materials. In our letter we asked Dean Knowles to look into this matter and reply promptly, for if the communication had occurred it would seem to be a breach of the confidentiality promised to the grievant in section 2 of the "Guidelines for the Resolution of Faculty Grievances." As of the writing of this letter, Dean Knowles has not replied to our November 24th letter. 36 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials; and also Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1994 revisions, p. 13, at <http://cyber.harvard.edu/eon/evidence/ tenrevprocedures.html> and Document 1 in the enclosed materials. 37 See <http://cyber.harvard.edu/eon/evidence/ct119pb.html> and Document 40 in the enclosed materials. 38 See <http://cyber.harvard.edu/eon/evidence/pb11ct.html> and Document 41 in the enclosed materials. Since Dean Thompson marked her letter "Personal and Confidential," Professor Nesson wrote to her before we posted it on our web page. See |
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13 Dean Thompson replied briefly to my letter of November 9th. She did not address my grievances. Instead, she stated "unequivocally" that she had and would have nothing to do with my tenure review. However, she did not give her reasons, which would have been appropriate since her official duties require her to be involved in both my tenure review and my appeal. Nor did she state whether she had officially recused herself during the tenure review process itself, and if she had how she made this known to other key figures--such as the members of the Department of Government--in the tenure review. In a letter of November 19, 1998, Dean Knowles also responded to my letter to Dean Thompson, a copy of which I had sent to him.39 Like Dean Thompson, Dean Knowles did not address my grievances. His purpose in writing was to correct "several statements that indicate some misunderstanding of the tenure review process in the Faculty of Arts and Sciences."40 Yet, as I explained at length in my reply to him of November 25, 1998, the "misunderstandings" his letter was meant to dispel did not appear in mine.41 And, as I argued in detail, his letter raised several troubling new issues in connection to my tenure review and appeal. At the end of my November 25th letter I asked Dean Knowles to correct any misunderstandings he thought I might still have concerning tenure review at Harvard and the particular facts of my case. I also explained that if I did not hear from him by December 4th, I would proceed to file a formal grievance. In a brief letter of December 2, 1998, Dean Knowles noted my intention to file a formal grievance but declined to offer corrections of either the understanding that I presented in my November 25th letter of the tenure review process at Harvard or of the account I put forward of the particulars of my case. Therefore, with this letter, and in accordance with the section 3 of the "Guidelines for the Resolution of Faculty Grievances," I am filing a formal grievance. <http://cyber.harvard.edu/eon/evidence/ct1127cn.html> and Document 45 in the enclosed materials. Professor Nesson explained that it was our customary practice to post on our web page all official correspondence with Harvard pertaining to my appeal. We also pointed out that the "confidentiality" promised in section 2 of the "Guidelines for the Resolution of Faculty Grievances" was for the benefit of the grievant. And we noted that the Office of the Dean had apparently already breached confidentiality by communicating by e-mail to my senior colleagues (without informing me) that Dean Thompson would not be playing her official role in the resolution of my grievances. After waiting several weeks for her reply, which still has not come, we posted her letter. 39 See <http://cyber.harvard.edu/eon/evidence/pb1119jk.html> and Document 42 in the enclosed materials 40 Ibid. 41 See <http://cyber.harvard.edu/eon/evidence/jk1125pb.html> and Document 44 in the enclosed materials. |
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14 * * * Grounds of the Grievances Now that I have outlined the circumstances surrounding my appeal, I will clarify the grounds of my grievances. The Harvard University "Guidelines for the Resolution of Faculty Grievances" cover cases in the Faculty of Arts and Sciences in which "proper procedures have not been followed in decisions regarding promotion or reappointment."42 Harvard failed to follow its own procedures in my case in two fundamental ways. The first set of procedural improprieties concerns the composition of the ad hoc committee that advised President Rudenstine on my tenure. The second set of procedural improprieties concerns the involvement in the tenure review process of Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson. The ad hoc committee I. Four of the five members on the ad hoc committee assembled and approved by the Office of the Dean for the purpose of advising President Rudenstine on my tenure showed bias, conflict of interest, or lack of relevant expertise. According to the Harvard University procedures for tenure review in the faculty of Arts and Sciences The purpose of the ad hoc committee review is to assure that the University takes the broadest possible view of opportunities to recruit the ablest people and to make certain that nominees are judged strictly on their merits as scientists, scholars, and teachers.43 To achieve this purpose, the scholars that compose the ad hoc committee are chosen for their objectivity and competence to judge whether the proposed appointment represents the best direction of development for the department, as well as for their ability to appraise the 42 See <http://cyber.harvard.edu/eon/evidence/grfg.html> and Document 4 in the enclosed materials. 43 See the Harvard University tenure review procedures in the Faculty of Arts and Scientists, 1994 revisions, p. 13, at <http://cyber.harvard.edu/eon/evidence/ tenrevprocedures.html> and Document 1 in the enclosed materials. |
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15 qualifications of the nominee.44 In my case, the composition of the ad hoc committee assembled and approved by the Office of the Dean to advise President Rudenstine frustrated the very purpose of ad hoc committee review. As attorney Matthew Feinberg, Professor Nesson, and I have explained in several of our letters, four of the five members on the ad hoc committee that advised the president on my tenure were not drawn from the list of scholars the Department of Government was asked to submit to the dean of the Faculty of Arts and Sciences. All four of these members opposed my tenure. All four of these members show evidence of bias, conflict of interest, or lack of relevant expertise. Please understand that "bias" is a legal concept, not a character defect. We make no allegation of bad faith, on the evidence we have gathered so far. "Bias" refers to elements of a person's history that give appearance of partiality. "Lack of relevant expertise" places equal emphasis on relevance and expertise. Assertion of irrelevance is no disparagement of expertise, but merely its relation to the two key issues that Harvard University tenure review procedures require ad hoc committees to address: 1) the importance of the field to the long-term development of the department; and 2) the quality of the proposed nominee.45 Moreover, according to former member of the Corporation and former Dean of the Faculty of Arts and Sciences Henry Rosovsky, the purpose of the ad hoc committee is to obtain for the president, who has sole responsibility for making the final decision in tenure cases, "the 44 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 16, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials; and also Dean Carol Thompson's memo of March 27, 1998, clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 45 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1994 revisions, p. 13, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials; and also Dean Thompson's memo of March 27, 1998, clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. |
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16 most neutral advice possible, unaffected by local friendships or prejudices."46 And the Office of the Dean of the Faculty, according to Dean Rosovsky, has the responsibility to make certain that every ad hoc committee contain[s] recognized, impartial and wise experts; no simple task. No effort or expense is spared in luring the right arbiters to Cambridge."47 The membership of the ad hoc committee assembled by the Office of the Dean to advise President Rudenstine on my tenure departed dramatically from this description and these standards. And the failure in my case on the part of the Office of the Dean to form an ad hoc committee consistent with Harvard's written procedures and well-known traditions deprived President Rudenstine of the impartial and expert advice that Harvard University tenure review procedures require him to hear as part of his deliberations over tenure. Professor Nesson and I believe that the following evidence of unfairness in the composition of the ad hoc committee that advised President Rudenstine on my tenure constitutes a fundamental flaw in the tenure review process. Please keep in mind that my primary field is the history of political philosophy and that at the time of my tenure review I had written a widely-reviewed, controversial, and prize-winning book, Nietzsche: The Ethics of an Immoralist (Harvard University Press, 1995); I had completed the manuscript and signed a contract for a second book, Virtue and the Making of Modern Liberalism (Princeton University Press, 1999), which received enthusiastic support from four scholarly referees, two at Harvard University Press and two at Princeton University Press; and I had published in scholarly journals as well as in national opinion magazines more than 200 pages of articles, essays, and reviews on a broad spectrum of issues, in many cases taking on the leading figures and the dominant ideas in my field.48 The ad hoc committee that was formed to assess the quality of my work and to evaluate the importance to the Department of Government of my field comprised three outside experts from other universities and two faculty members from the Harvard University Faculty of Arts and Sciences: 1) Ellen Kennedy, Professor of Political Science, University of Pennsylvania Co-editor of a volume on women and political philosophy (Women in Western Political Philosophy: Kant to Nietzsche, ed. Ellen Kennedy and 46 See The University: An Owner's Manual (New York: Norton, 1990), p. 200, at <http://cyber.harvard.edu/eon/evidence/tuaom.html> and Document 3 in the enclosed materials. 47 Ibid., p. 201. 48 See my C.V. at <http://cyber.harvard.edu/eon/evidence/pberkcv.html> and Document 22 in the enclosed materials. |
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17 Susan Mendus (New York: St. Martin's Press, 1987)), translator of a work by Carl Schmitt (The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985)), and most recently the author of a book on Germany's central bank (The Bundesbank: Germany's Central Bank in the International Monetary System (New York City: Council on Foreign Relations Press, 1991)), Professor Kennedy is not a recognized expert in the history of political philosophy. 2) Isaac Kramnick, Professor of Government, Cornell University The author of many books dealing with the history of Anglo- American political thought from the eighteenth century to the present, Professor Kramnick brings relevant expertise to bear on my work on liberalism but not on my work on Nietzsche. Moreover, problems of bias and conflict of interest arise in connection to Professor Kramnick's participation as member of the ad hoc committee that advised President Rudenstine on my tenure. I had published a lengthy and highly critical review ("Liberal Zealotry," in The Yale Law Journal, March 1994) of a book by Stephen Holmes, at the time a professor at the University of Chicago, and now a professor of politics at Princeton and an adjunct professor of law at NYU. And in Virtue and the Making of Modern Liberalism, I presented my approach to defending liberalism as diametrically opposed to that of Holmes. Yet Professor Kramnick had proclaimed on the back of Holmes's book, Passions and Constraint, that it "is a brilliantly focused defense of liberalism. Indeed, it will quickly become the 'manifesto' for what is a rapidly growing movement to reclaim liberalism as a truly progressive and humane ideology after decades of political and academic assault." The very features Professor Kramnick praised in Holmes were just those I had criticized sharply in both "Liberal Zealotry" and Virtue and the Making of Modern Liberalism, namely Holmes's propensity to treat liberalism's critics as enemies that one must dispose of rather than as resources from whom one can learn. Having so publicly backed Holmes and linked his own name and reputation to Holmes's approach, Kramnick had an appearance of a personal and professional stake in opposing a vocal critic of Holmes's work. In addition, since Professor Kramnick (who received his Ph.D. from the Harvard Department of Government in 1965) was a graduate school colleague of Professor Thompson (who received his Ph.D. from the |
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18 Harvard Department of Government in 1968), and since in graduate school Professor Kramnick shared teachers and advisors with Professor Thompson, Professor Kramnick had a long standing personal and professional relationship to both a partisan inside the Harvard Department of Government in the debate over my tenure and to a key member on the staff of President Rudenstine (who received his Ph.D. from the Harvard Department of English Literature in 1965). Therefore, Professor Kramnick's participation contravened one of the major purposes of ad hoc committee review, which is to provide the president with outside expert judgment that is "unaffected by local prejudices or friendships." 3) Leon Kass, Professor of Social Thought, University of Chicago A leading scholar of ethics and biology, Professor Kass was the only member of the ad hoc committee drawn from the Department of Government's list of recommendations. 4) Jerome Kagan, Professor of Psychology, Harvard University A distinguished scholar of psychology, Professor Kagan's laboratory is currently "devoted to the study of temperamental qualities in young children with a focus on two specific groups called inhibited and uninhibited respectively."49 Professor Kagan is not recognized as an expert in the history of political philosophy and lacks expertise in the needs of political science departments. Moreover, as co-director of the Program in Mind, Brain, and Behavior, one of President Rudenstine's five "Inter-Faculty Initiatives," Professor Kagan is a member of the Office of the Provost and the Office of the President and a colleague in those offices of Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson.50 Because Professor 49 See Harvard University Department of Psychology Faculty Directory, at <http://www.wjh.harvard.edu/psych/deptoff/fackagan.html> and Document 10b in the enclosed materials. 50 For the university-wide scope of the Program in Mind, Brain, and Behavior, see <http://www.mbb.harvard.edu/http/facultyguide.html> and Document 11b in the enclosed materials. For the university-wide-scope of the Program in Ethics and the Professions, see <http://www.ethics.harvard.edu/> and Document 11a in the enclosed materials. For the place of |
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19 Kagan brought to the ad hoc committee the interests attached to his office in the Central Administration and a strong official tie to Professor Thompson, a party to the case, Professor Kagan's participation was inconsistent with the purpose of ad hoc committee review, which is to provide the president with judgment that is "unaffected by local friendships or prejudices." 5) Maria Tatar, Professor of German, Harvard University According to the short biography in the Harvard University Department of Germanic Languages and Literatures web page, Professor Tatar is the author of books on the Brothers Grimm, on fairy tales (The Hard Facts of the Grimms' Fairy Tales and Off with Their Heads!), and on the cultural impact of mesmerist theories and practices of nineteenth- and twentieth-century literature, [and] she has also authored Lustmord, which explores the theme of sexual violence in the literature, film, and art of the Weimar period in Germany. She is currently at work on a book about the Bluebeard tale. In addition, she has edited an anthology of fairy tales published as a Norton Critical Edition.51 Professor Tatar is not recognized as an expert in the history of political philosophy, and her own work is only tenuously in a field "related" to mine. Moreover, Professor Tatar's approach to literature clashes with my approach to, and emphases in, the study of political theory. Professor Tatar stresses contemporary literary theory as well as the relation between literature and gender and literature and culture. In contrast, in my book on Nietzsche, I criticize approaches that read Nietzsche primarily as a literary theorist, stress Nietzsche's own both programs and President Rudenstine's other "Inter-Faculty Initiatives" in the university administration, see <http://vpf-web.harvard.edu/factbook/96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materialhttp://vpf-web.harvard.edu/factbook/96-97/page3.htms. Also, see President Rudenstine's discussion of his "Inter-Faculty Initiatives" in "The President's Report 1991-1993," pp. 48, 52-59, at <http://cyber.harvard.edu/eon/evidence/presrep9193.html> and Document 11 in the enclosed materials. 51 See <http://www.fas.harvard.edu/~german/faculty.html> and Document 10c in the enclosed materials. |
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20 intentions, analyze the moral and political dimensions of Nietzsche's thinking, and emphasize the links between Nietzsche's thought and classical political philosophy. Furthermore, Professor Tatar was a strong supporter of Professor Peter Burgard,52 a colleague in the Department of German who had been recommended for promotion and tenure by his department in the same season that I was recommended by the Department of Government. In the spring of 1997, President Rudenstine rejected the Department of Government's recommendation that I be awarded tenure and approved the Department of German's recommendation that Professor Burgard be awarded tenure. A scholar of modern German literature, Professor Burgard published an edited volume on Nietzsche (Nietzsche and the Feminine (Charlottesville: University Press of Virginia, 1994)) and in the Department of German teaches courses that deal with Nietzsche. Moreover, Professor Burgard's wife was appointed to the Department of German shortly after he received tenure and now also teaches courses that deal with Nietzsche.53 Since I had written a book on Nietzsche, since the president considers the needs of the University as a whole, and since tenured positions at Harvard are scarce, it would have been reasonable for Professor Tatar to think that promotion and tenure for me would have diminished the chances for promotion and tenure for her colleague Professor Burgard, a candidate for tenure whom she had vigorously backed in her own department and whose scholarly interests overlapped with mine. Hence, Professor Tatar had the appearance of both a personal and departmental stake in opposing my tenure. Finally, Professor Tatar had another untenured colleague in the Department of German, Professor Beatrice Hanssen, whose teaching and scholarship deal with Nietzsche.54 It would also have been reasonable for Professor Tatar to think, for the same reasons I outlined in connection to Professor Burgard, that promotion and tenure for me would have diminished the chances for promotion and tenure for her colleague Professor Hanssen. Thus, in another respect Professor Tatar had the appearance of both a personal and departmental stake in opposing my tenure. 52 Ibid. 53 Ibid. 54 Ibid. |
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21 In her letter to Mr. Feinberg of December 29, 1997, Vice President and General Counsel Anne Taylor asserted in connection to my tenure review that "Ad hoc committee members are selected, and were selected in this case, to bring substantive expertise and a variety of perspectives to bear on the deliberations."55 Yet in my case the ad hoc committee was markedly deficient in regard to both the "substantive expertise" and the "variety of perspectives" which, according to Ms. Taylor, were its main purpose to provide. First, although my first book is on the moral and political significance of Nietzsche's thought, not a single member of the ad hoc committee in my case is a recognized expert on either Nietzsche or nineteenth century German political philosophy. Therefore, the ad hoc committee lacked the "substantive expertise" Ms. Taylor asserted to Mr. Feinberg it was supposed to and did in fact possess. Second, although my second book is on the history of modern liberalism and its relation to debates in contemporary political theory, at best only one member of the ad hoc committee (Kramnick) could be said to be a expert in the history of modern liberalism. Therefore, and in a second crucial respect, the ad hoc committee was deficient in the "substantive expertise" that Ms. Taylor affirmed it was formally required to and did in fact possess. Third, although nearly all of my work deals with the relation between modern political philosophy and ancient and medieval political philosophy, not a single member of the ad hoc committee is a recognized expert on the history of political philosophy as a whole. In a third important respect, the ad hoc committee lacked, contrary to Ms. Taylor's assurances, "substantive expertise." Fourth, although I am widely considered to be to the right of center on questions of method, theoretical premises, and political presuppositions in the contentious and deeply divided field of academic political theory, only one member of the ad hoc committee, Leon Kass, could be considered to be to the right of center in these areas. In this sensitive matter, the ad hoc committee was overwhelmingly of a single mind and heavily weighted against my methodological, theoretical, and political viewpoints. Hence, the ad hoc committee lacked, in a highly relevant respect, the "variety of perspectives" that Ms. Taylor, speaking on behalf of Harvard, had insisted in her letter of December 29, 1997, it brought to bear, in accordance with its formal purpose, on deliberations about my tenure. I should make clear that I have always understood that Harvard University procedures grant President Rudenstine final say in tenure decisions.56 And I fully recognize that under those 55 See <http://cyber.harvard.edu/eon/evidence/mf1229at.html> and Document 24 in the enclosed materials. 56 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1994 revisions, p. 13, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and |
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22 procedures President Rudenstine is free to accept or reject the advice of the scholars on the ad hoc committee over which he presides. However, President Rudenstine is not free to disregard the formal requirement set forth in the Harvard University tenure review procedures that he consult at the ad hoc committee hearing with scholars who are recognized and impartial and bring to bear on the deliberations relevant expertise.57 In my case, the ad hoc committee that the Office of the Dean assembled and approved for the purpose of advising President Rudenstine prevented him from complying with this formal requirement of Harvard University tenure review in the Faculty of Arts and Sciences. This violation of Harvard University procedures denied me the fair consideration that the formal procedures are meant to secure. Involvement in the tenure review process by Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson II. Associate Provost of the University,58 Director of the Program in Ethics and the Professions,59 and Professor of Government 60 Dennis F. Thompson compromised the integrity of the tenure review process in my case by taking part in deliberations in the Department of Government and by participating by means of his Document 1 in the enclosed materials; and also Dean Thompson's memo of March 27, 1998, clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 57 See the Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 16, at <http://cyber.harvard.edu/eon/evidence/ tenrevprocedures.html> and Document 1 in the enclosed materials; and Dean Carol Thompson's memo of March 27, 1998, clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. See also Dean Henry Rosovsky's statement on the purpose of the ad hoc committee, in The University: An Owner's Manual (New York: Norton, 1990), pp. 200-201, at <http://cyber.harvard.edu/eon/evidence/tuaom.html> and Document 3 in the enclosed materials. 58 See "Staff, Office of the Provost, Harvard University," at <http://www.provost.harvard.edu/bios> and Document 8 in the enclosed materials. 59 See "Program in Ethics and the Professions, Harvard University," at <http://www.ethics.harvard.edu> and Document 11a in the enclosed materials. 60 See Harvard University Department of Government Faculty Directory, at <http://www.gov.harvard.edu/> and Document 10a in the enclosed materials. |
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23 confidential letter to the dean in the deliberations of the Office of the Dean, the ad hoc committee, and the president. Professor Thompson's involvement in my tenure review compromised the process in four ways: The first way in which Professor Thompson's involvement in my tenure review compromised the integrity of the process concerns the kind of influence, as a result of his multiple positions in the Harvard University Central Administration, he inevitably exercised in deliberations in the Department of Government: A) Professor Thompson, a member of both the Office of the Provost and the Office of the President in his role as associate provost of the University, inherently and unavoidably exercised unfair influence in my tenure review by introducing the power and prestige of a high university official and member of the Central Administration into departmental deliberations. In September 1996, shortly before the Department began to consider my case, Thompson, already professor of government in the Faculty of Arts and Sciences and director of the Program in Ethics and the Professions (which made him a member of the Office of the Provost and the Office of the President), assumed the new office, created by President Rudenstine, of associate provost of the University.61 When asked by the Crimson about his role in my tenure review, Professor Thompson stated, my actions in this case were limited to the usual role I play as a member of the government department as a part of the departmental discussion. I wrote a customary letter to the Dean [of FAS Knowles]. I don't normally [as a part-time University administrator] have any other role in FAS tenure decision and I did not do anything other, in this case either.62 It is, however, precisely by playing his "usual role" in his own department's tenure deliberations after having become associate provost of the University that Professor Thompson impaired the integrity of the tenure review process. The associate provost works with the president and provost as "one of only three 61 For the governing structure of the Harvard University Central Administration, see <http://vpf-web.harvard.edu/factbook/95-96/page2.htm> and The Harvard Guide, pp. 80-81, and for both Document 6 in the enclosed materials. 62 See "Berkowitz v. Harvard," in the Harvard Crimson, January 12, 1998, p. 3, at <http://www.thecrimson.harvard.edu/pubcgi/makearticle.pl?id=3F4AB591A4> and Document 18 in the enclosed materials. The words in brackets appear in the Crimson article. |
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24 academic officers based in the University's Central Administration."63 In his role as associate provost, Professor Thompson advises the president on "substantial academic issues" and "broader issues of University-wide concern."64 Consequently, through his routine participation as a faculty member in tenure review, the associate provost unavoidably introduces the president's power and the influence of his office into departmental deliberations. Professor Thompson's participation in my tenure review, and the failure on the part of the Office of the Dean to prevent his participation, inescapably introduced into the formal process a bias to the judgment of his colleagues in the Department of Government. Moreover, Harvard's past practices and the norms built into its established procedures suggest the wrongness of Professor Thompson's involvement. For example, former Provost Jerry Green, now professor of economics and business, routinely recused himself from tenure deliberations in the Department of Economics (his only faculty appointment at the time) while serving as provost: Even if I agreed with the majority in my department, as I probably would have, there would be a perception that I had . . . [exercised disproportionate] influence.65 It might be said that whereas Professor Green was a full-time provost, Professor Thompson serves as a part-time associate provost. Yet whereas Professor Green as provost gave a substantial part of his time to financial matters, Professor Thompson as associate provost gives the bulk of his time to advising and assisting the president on academic issues, many of which touch on questions connected to tenure in the Faculty of Arts and Sciences. In contrast to Professor Green and his concerns about the appearance of impropriety, Professor Thompson, according to the Harvard Crimson, rejects "any suggestion that his status as a University official inflates his influence with other faculty members."66 Professor Thompson argues that it is false and insulting to suggest that my colleagues in the government department would defer to me or anybody else in that 63 See "Thompson Named Associate Provost," in the Harvard University Gazette, September 19, 1996, pp. 1, 6, at <http:/cyber.harvard.edu/eon/evidence/tnap91996.html> and Document 14 in the enclosed materials. 64 Ibid., p. 6. 65 See "Berkowitz Prepares to File Formal Grievance over Tenure Denial," in the Harvard Crimson, December 14, 1998, pp. A-1, A-9, at <bpffgtdcrimson121498.html> and Document 21 in the enclosed materials. 66 Ibid., p. A-9. |
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25 way. Tenured faculty don't bow to anyone.67 Yet Professor Thompson's objection betrays a misunderstanding of my grievance, a misconception about Harvard's own procedures for tenure review, and more generally a failure to appreciate the importance of the ethics of fair process. As I pointed out in my letter of November 9th to Associate Dean for Academic Affairs Carol Thompson, the good character of my colleagues does not obviate the need for fair process in tenure review.68 Indeed, procedural safeguards to protect against the distorting effects of personal and professional interests are already, in a variety of ways, built in to Harvard's tenure review system. We question no one's character, but we know from Dean Thompson's own March 27th memo that regardless of individual character, faculty associate deans routinely recuse themselves from matters touching on tenure review in their own departments.69 We understand from Professor MacFarquhar's October 21st 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."70 We learn from Harvard's own tenure review procedures 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 of development for the department, as well as for their ability to appraise the qualifications of the nominee."71 And after declaring their votes on a candidate's tenure in front of their colleagues in the department, tenured faculty are asked by the Office of the Dean to write confidential letters for the eyes only of the deans, the ad hoc committee, and the president.72 The 67 Ibid., p. A-9. 68 See <http://cyber.harvard.edu/eon/evidence/ct119pb.html> and Document 40 in the enclosed materials. 69 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 70 See <http://cyber.harvard.edu/eon/evidence/pbcn1021rm.html> and Document 37 in the enclosed materials. 71 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 16, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials; and Dean Carol Thompson's memo of March 27, 1998, clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 72 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 16, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials; and Dean Carol Thompson's memo of March 27, 1998, |
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26 need for these confidential letters seems to stem from the fear that otherwise tenured faculty will bow to pressures from their colleagues and fail to express their candid opinions to officers of the administration. In short, the purpose of these procedural safeguards in Harvard's tenure review system and others like them is to shield professors and administrators from situations in which their private interests or the interests that attach to their offices might skew their judgment. In this context, it is curious to hear the associate provost of Harvard University downplay the reach and significance of his administrative position. It is odd to witness the director of the Program in Ethics and the Professions depreciate the importance of fair process. And it is false and insulting for Professor Thompson to imply that asking Harvard to respect its own procedures and the worthy principles embodied in them presents an affront to him or his colleagues. In his public comments on my case, Professor Thompson has referred to himself, in defense of his involvement in my tenure review, as a "part-time administrator."73 Professor Thompson's self-description, however, hides his actual role as well as the scope and content of the duties attached to his office in the Harvard University Central Administration. According to a statement issued by the Harvard University Office of the Provost, Professor Thompson's responsibilities as associate provost of the University are complex and sprawling: Dr. Thompson advises and assists the Provost and President on academic and faculty related matters, chiefly those that affect more than one School. Responsibilities include: academic planning, physical planning, interfaculty initiatives, research policy, intellectual property, institutional review boards, and university-wide centers and initiatives. He serves as a member of the Academic Advisory Group, and the Academic Council.74 Whatever part of his time Professor Thompson spends on these many, varied, and far-ranging responsibilities, that part is substantial. Moreover, the responsibilities that attach to the Office of the Associate Provost give Professor Thompson an integral role in the provost's and president's business and involve Professor Thompson as an advisor and decision maker in a host of matters clarifying the "The Tenure Appointment Process in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 73 See "Behind the Crimson Curtain," in Lingua Franca, October 1998, p. 38, at <http://www.linguafranca.com/9810/greenberg.html> and Document 20 in the enclosed materials. 74 See <http://www.provost.harvard.edu/bios/> and Document 8 in the enclosed materials. |
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27 inextricably related to promotion and tenure in the Faculty of Arts and Sciences. President Rudenstine, who decides as many as thirty tenure cases a year, has stated that I spend a tremendous amount of time on the ad hoc cases. For me, the only fundamental reason to be in a job like this is to be on the academic end of it as much as possible. I think that appointing tenured faculty and appointing deans are the two most important things I do.75 If judging tenure is one of the two most important things that President Rudenstine does, and if, as associate provost, Professor Thompson "advises and assists the provost and president on academic and faculty related matters," and if President Rudenstine's decisions about tenure include departmental-wide, faculty-wide, and university-wide considerations, then President Rudenstine's decisions in any tenure case are inseparable from the routine performance by Associate Provost Thompson of his official tasks and responsibilities. In his letter to me of November 19th, Dean Knowles also sought to defend Professor Thompson's involvement in my tenure review on the grounds that Professor Thompson was a part-time administrator: it is established practice in the FAS that tenured colleagues who serve in part-time administrative capacities (for example, the Dean of the Graduate School, the Dean for Affirmative Action, or the Associate Provost) are expected fully to participate in tenure deliberations in their home departments.76 But it is as misleading for Dean Knowles as it was for Professor Thompson to focus on the part-time character of Professor Thompson's duties in the Central Administration in abstraction from the specific duties Professor Thompson discharges as associate provost and the cluster of interests attached to his role in the Office of the President. And it is wrong for several reasons for Dean Knowles to lump the associate provost of the University with the dean of the Graduate School and the dean for affirmative action. First, Dean Knowles refers to "established practice in the FAS," but the position of 75 See "Behind the Crimson Curtain," in Lingua Franca, October 1998, p. 32, at <http://www.linguafranca.com/9810/greenberg.html> and Document 20 in the enclosed materials. http://www.linguafranca.com/9810/greenberg.html 76 See <http://cyber.harvard.edu/eon/evidence/pb1119jk.html> and Document 42 in the enclosed materials. |
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28 associate provost was only created in 1996, the year my tenure review began. The question in connection to whether the associate provost of the University should participate in the tenure review process in his home department is not the abstract one of whether established practices apply. Rather, the question is which established practices and procedural norms apply to the new position of associate provost and in what manner. Second, the administrative responsibilities of the deans mentioned by Dean Knowles are decidedly narrower than those of the associate provost. Indeed, these deans, like Dean Knowles himself, answer to the Office of the President and so in effect serve under Professor Thompson in his role as associate provost of the University.77 Furthermore, the administrative responsibilities of the dean of the Graduate School and of the dean for affirmative action are confined to the Faculty of Arts and Sciences. In contrast, the associate provost is associate provost of the University and, as a member of the Central Administration, has considerably more power and influence than either of the deans. For example, Professor Thompson, as associate provost of the University, is the only member of the Central Administration Strategic Team (CAST) who also is a faculty member in FAS. The Central Administration Strategic Team is the important committee whose purpose is "to provide a forum for senior administrators in the central administration to work together to develop a plan and three-year budget for the core central administration. Membership consists of the Provost, Vice Presidents, and other senior officers in the central administration"78 Third, unlike the FAS deans mentioned by Dean Knowles, the primary responsibility of the associate provost of the University is to advise the president, the final judge in all tenure decisions at Harvard, on "substantial academic issues."79 The condition of the Moral Reasoning Division of Harvard's Core Curriculum, in which I have taught and would have been expected to teach regularly as a tenured member of the Department of Government, is but one of the "substantial academic issues" that both touches upon the question of my tenure and concerns the 77 For the relation between the Office of the Provost, the Office of the President, and the Office of the Dean of the Faculty of Arts and Sciences, see <http://vpf-web.harvard.edu/ factbook/96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materials. 78 See "Harvard University Office of the Provost - Central Administration Strategic Team (CAST)," at <http://www.provost.harvard.edu/ca_reports/ca_plan/castmembers.html> and Document 9 in the enclosed materials. 79 See "Thompson Named Associate Provost," in the Harvard University Gazette, September 19, 1996, p. 6, at <http://cyber.harvard.edu/eon/evidence/tnap91996.html> and Document 14 in the enclosed materials. |
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29 associate provost in his official capacity as a member of the president's staff.80 Furthermore, as director of the Program in Ethics and the Professions, one of President Rudenstine's five "Inter-Faculty Initiatives," Professor Thompson is also a member of the Office of the Provost and the Office of the President.81 This not only means that his two provost-level positions together occupy considerably more of his time than his obligations in the Department of Government (where he taught no more than a single course--a normal load is four courses--in the 1996-1997 academic year). It also means that in his multiple administrative roles he has control of or significant influence over the distribution of substantial funds that touch the interests of 80 One week before President Rudenstine presided over the ad hoc committee hearing on my tenure, the Core Review Committee, which had met for a year and a half, reported to a regular meeting of the full Faculty of Arts and Sciences (over which President Rudenstine presides) that Harvard had a need to increase the number of professors who teach in the Moral Reasoning division of the Core. According to the Minutes of the Meeting of the Faculty on Tuesday, April 8, 1997, the Core Review Committee recommended, among other things, that it be the Dean's priority in recruiting new faculty to see whether they would teach in the Core, and Chairs of Core committees searched diligently for Core Courses. Yet more needed to be done. The core produced a large number of courses; it needed more, especially in certain fields such as Moral Reasoning. The Dean should consider all possible carrots that could be offered to faculty members to teach in the Core. Core courses were much more difficult to teach; perhaps they should be given additional teaching credits. The Dean should work with departments and with faculty to try to increase the number of Core courses. (Minutes of the Faculty of Arts and Sciences, April, 8, 1997, p. 23, at <http://cyber.harvard.edu/ eon/evidence/minutes48.html> and Document 12 in the enclosed materials.) I had taught in the Core in the past and, after the department's vote to promote me in February 1997, on the advice of Professor Kenneth Shepsle, then chair of the Department of Government, I consulted with Professor Michael Sandel, chair of Moral Reasoning. Professor Sandel and I enthusiastically agreed that if my tenure were approved by President Rudenstine, I would teach regularly in the Core. In the fall of 1997, six months after President Rudenstine's decision to deny my tenure, Professor Thompson, in his capacity as associate provost, circulated a letter to the tenured members of the Faculty of Arts and Sciences stating the need for more professors to teach classes in Moral Reasoning. (This document was not available.) Less than a year later, by fall of 1998, the Office of the Dean had granted to the Department of Government a special new senior position for a political theorist who would teach classes in Moral Reasoning. 81 For the relation between the Office of the Provost and the Office of the President and President Rudenstine's "Inter-Faculty Initiatives," see <http://vpf-web.harvard.edu/factbook/ 96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materials. |
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30 many of his colleagues in the Department of Government.82 In this way too, Professor Thompson's involvement in departmental deliberations about my tenure introduced in to the formal process a bias to the judgment of his colleagues in the Department of Government. The second way in which Professor Thompson's involvement in my tenure review compromised the integrity of the process concerns the kind of influence his simultaneous appointments as administrator in the Office of the Provost and the Office of the President and faculty member in the Department of Government allowed him to exercise on President Rudenstine, the final judge in tenure decisions at Harvard: B) Professor Thompson, in my tenure review, violated a fundamental norm of procedural fairness embodied in many of Harvard's formal procedures and established practices by serving as both judge and party to the case. He was a judge in the case inasmuch as he was employed, as associate provost of the University, as an official advisor to President Rudenstine in connection to academic issues inextricably related to my tenure. And he was a party to the case inasmuch as he opposed my tenure as a professor in the Department of Government. By participating in my tenure review at the level of the department, the level of the dean, and the level of the ad hoc committee hearing, Professor Thompson exposed President Rudenstine, the final judge in tenure decisions at Harvard, to deciding a case in which a member of the Office of the President was involved as an interested party. Since his "customary letter to the Dean," which he refers to in the January 12, 1998, article in the Crimson,83 became part of the dossier that the dean assembled for the ad hoc committee hearing, Professor Thompson conveyed his views about my tenure not only to the dean of the Faculty of Arts and Sciences and the members of his staff, but also to members of the 82 For the university-wide scope of the Program in Ethics and the Professions, see <http://www.ethics.harvard.edu/> and Document 11a in the enclosed materials. See also "Finding a Way through the Moral Haze: Program in Ethics and the Professions Marks First Decade," in the Harvard Gazette, April 17, 1997, pp.3-4, at <http://cyber.harvard.edu/eon/evidence/fwmhgazette41797.html> and Document 16 in the enclosed materials. For the source of the funds that support the Program in Ethics and the Professions, see "Ethics and the Professions Celebrates 10th Anniversary," in the Harvard Crimson, April 26, 1997, p. 5, at <http://cyber.harvard.edu/eon/evidence/epctacrimson42697.html> and Document 17 in the enclosed materials. 83 See "Berkowitz v. Harvard," in the Harvard Crimson, January 12, 1998, p. 3, at <http://www.thecrimson.harvard.edu/ pubcgi/makearticle.pl?id=3F4AB591A4> and Document 18 in the enclosed materials. |
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31 ad hoc committee and to the president. Indeed, the letter to the dean, which Professor Thompson refers to as "customary," is in fact a formal requirement of Harvard University tenure procedures in the Faculty of Arts and Sciences. For as the rules state, after a departmental vote in favor of a candidate for tenure, a confidential letter from each voting member of the department should be sent directly to the Dean, giving the writer's view of the appointment and of the department's nominee. These will be distributed to the ad hoc committee.84 And Dean Carol Thompson, in her memo of March 27, 1998, clarifying "The Tenure Appointment Process in the Faculty of Arts and Sciences," restates this requirement: Senior members of the department are asked to write confidential letters to the Dean, giving an explanation of their votes and their views of the recommendation. These confidential letters become part of the dossier.85 Because he was at the same time a prominent member of the Office of the President, Professor Thompson's participation as a faculty member in my tenure review by means of his confidential letter to the dean--and the failure on the part of the Office of the Dean to prevent his participation--introduced into the formal process a bias to the president's judgment. In his recent December 14, 1998, statement to the Crimson, Professor Thompson contradicts his statement of January 12, 1998. According to the December 14th Crimson article, 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.86 And Professor Thompson himself declares, "I participated in the department as I normally do, 84 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 16, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials. 85 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 86 See "Berkowitz Prepares to File Formal Grievance over Tenure Denial," in the Harvard Crimson, December 14, 1998, p. A-9, at <http://cyber.harvard.edu/eon/evidence/bpffgtdcrimson121498> and Document 21 in the enclosed materials. |
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32 and I didn't play a role after [deliberations in] the department."87 Yet the fact that he was out of town on the day that the ad hoc committee met to consider my tenure hardly settles the question of whether Professor Thompson participated in my tenure review after deliberations in the department. For his absence at the ad hoc committee hearing certainly does not preclude Professor Thompson from having exercised his influence, in the normal operation of tenure review at Harvard, beyond the Department of Government. Indeed, his absence at the ad hoc committee hearing by no means prevents his voice from being heard at the level of the ad hoc committee. This is because the very purpose of the confidential letter to the dean, which, in his January 12th statement to the Crimson, Professor Thompson acknowledged having written, is, as I have pointed out, to enable all tenured faculty members to play a role in tenure review beyond departmental deliberations and have their candid opinions, unconstrained by pressures exerted by their colleagues, heard by the deans, the ad hoc committee, and the president. Because Professor Thompson did not recuse himself from my tenure review and because the Office of the Dean did not require that he recuse himself, President Rudenstine was exposed to deciding a case in which the Associate Provost of the University, a key member of his official staff, played a partisan role.88 And in so exposing President Rudenstine, Professor Thompson violated the fundamental norm of procedural fairness that prohibits an individual from serving as both judge and party to a case.89 The third way in which Professor Thompson's involvement in my tenure review compromised the integrity of the process concerns the supervisory relationship in which the Office of the President, of which Professor Thompson is a leading member, stands to the Office of the Dean. C) Professor Thompson's participation in my tenure review created a conflict of interest for the dean of the Faculty of Arts and Sciences and the deans who serve under him. The Office of the Dean is responsible for forming ad hoc committees and ensuring that procedures have been fairly administered in 87 Ibid. 88 For differences of opinion between Professor Thompson and me on major questions in the field of political theory, see my essay, "The Debating Society," a review of Democracy and Disagreement, by Amy Gutmann and Dennis Thompson, in THE NEW REPUBLIC, November 25, 1996, pp. 36-42, at <http://cyber.harvard.edu/eon/evidence/ds.html> and Document 15 in the enclosed materials. 89 See Dennis F. Thompson, "Both Judge and Party," in The Brookings Review, Fall 1995, pp. 44-48, at <http://cyber.harvard.edu/eon/evidence/bjp.html> and Document 13 in the enclosed materials. |
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33 tenure review. Professor Thompson, in his role as associate provost of the University, holds a major position in the Office of the President, which oversees the Office of the Dean. Thus Dean Knowles and the associate deans were asked to impartially administer a tenure review in which a prominent member of the office that supervises them was involved as a faculty member and an interested party. As I have pointed out already in this and in several previous letters, the dean of the Faculty of Arts and Sciences and the members of his staff cannot be expected to fairly review the actions of the president at whose behest they serve. Similarly, the dean and the members of his staff cannot be expected to administer in an unbiased fashion the tenure review of a candidate who is opposed by a faculty member who is also a member of the Office of the President, for the Office of the President is responsible for hiring and firing deans.90 Indeed, as I have noted in a slightly different context, President Rudenstine himself has declared that choosing deans lies at the center of his understanding of his responsibilities as president: appointing tenured faculty and appointing deans are the two most important things I do.91 Precisely because appointing tenured faculty and appointing deans are, by President Rudenstine's own account, among his fundamental duties as president, the participation in tenure review at the departmental level by an official member of his staff and chief academic advisor unavoidably and inherently compromises the independence and impartiality of the Office of the Dean in its administration of tenure review. The fourth way in which Professor Thompson's involvement in my tenure review compromised the integrity of the process concerns the relation between his own multiple roles at Harvard and the administrative role of his wife, Dean Thompson: D) Professor Thompson's role as associate provost of the University and his participation in my tenure review as an interested party give rise to 90 For the relation between the Office of the Provost, the Office of the President, and the Office of the Dean of the Faculty of Arts and Sciences, see <http://vpf-web.harvard.edu/ factbook/96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materials. 91 For the relation between the Office of the Provost, the Office of the President, and the Office of the Dean of the Faculty of Arts and Sciences, see <http://vpf-web.harvard.edu/ factbook/96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materials. |
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34 appearances of abuse of power because his spouse is Associate Dean for Academic Affairs Carol J. Thompson, who was administratively connected to my tenure review in a variety of potentially decisive ways. This offends the stated policy of the Faculty of Arts and Sciences, which provides 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.92 And according to Harvard's published policy statement, distributed to the faculty by the Office of the Dean, the standard in such situations is an appearance standard: Implicit in the idea of professionalism is the recognition by those in positions of authority that in their relationships with students or staff there is always an element of power. It is incumbent upon those with authority not to abuse, nor to seem to abuse, the power with which they are entrusted.93 In the December 14th Crimson, Dean Carol Thompson declares in response to the charge that her husband, as associate provost of the University and a member of the Office of the President, stands in a supervisory relation to her in her official position in the Office of the Dean, "None of his functions in any way relate to my job."94 It is easy to see, however, that Dean Thompson is mistaken. Indeed, the formal problem is twofold. As associate provost, Professor Thompson is an integral part of the Office of the President, which supervise the Office of the Dean of the Faculty of Arts and Sciences where his wife works on tenure and other academic matters concerning which Professor Thompson in his official role advises the president.95 At the same time, as associate dean for academic affairs, Carol Thompson is an integral part of the Office of the Dean 92See "Harvard University Sexual Harassment and Unprofessional Conduct: Guidelines in the Faculty of Arts and Sciences," at <http://cyber.harvard.edu/eon/evidence/hushuc.html> and Document 5 in the enclosed materials. 93 Ibid. 94 See "Berkowitz Prepares to File Formal Grievance over Tenure Denial," in the Harvard Crimson, December 14, 1998, p. A-9, at <http://cyber.harvard.edu/eon/evidence/bpffgtdcrmson121498.html> and Document 21 in the enclosed materials. 95 For the relation between the Office of the Provost, the Office of the President, and the Office of the Dean of the Faculty of Arts and Sciences, see <http://vpf-web.harvard.edu/factbook/ 96-97/page3.htm> and The Harvard Guide, pp. 78-79, and for both Document 7 in the enclosed materials. |
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35 administers the tenure review process in which her husband participates as a senior faculty member. Thus, in his official administrative role at Harvard, Associate Provost Dennis Thompson stands in a supervisory capacity toward his wife in her professional role at Harvard. And in her official administrative role at Harvard, Associate Dean for Academic Affairs Carol Thompson stands in a supervisory capacity toward her husband in his professional role as a professor in the Harvard Department of Government. In the letter which I received on November 17, 1998, Dean Thompson declared "unequivocally" that she has not had and will not have any role in my tenure review or my appeal.96 And Dean Knowles, in his letter of November 19th, has written the same about Dean Thompson's role.97 Yet the issues involved are more complicated than the assurances provided by Dean Thompson and Dean Knowles suggest. When we consulted Harvard University's web page we learned that Carol Thompson's duties, as associate dean for academic affairs, concern both faculty appointment and "departmental and academic policies."98 The Harvard web page also suggests that the associate dean for academic affairs belongs to the dean's "cabinet." And the Boston Globe explains that, "The Harvard faculty of the future takes shape every Wednesday morning in a conference room in University Hall. . . [where] Knowles and his staff take stock of their courtships of the world's best minds."99 Is it wrong to suppose that Dean Thompson, as associate dean for academic affairs, took part in these meetings? Or to assume that during the academic year 1996-1997 Dean Thompson was involved in other tenure review cases in FAS concurrent with mine? Or to think that a tenure decision is always not only about the merits of a particular candidate but also always concerns the direction of the department, the needs of FAS, and the academic mission of the University as a whole? If all this is so, it seems reasonable to suppose that in the routine discharge of the duties of her office--participation in tenure reviews of competitors for scarce positions on the senior faculty, formation of academic policy, and recruitment of faculty--Dean Thompson, even if she played no direct role in my case, could have played an indirect but significant and potentially decisive role in the outcome of my tenure review. 96 See <http://cyber.harvard.edu/eon/evidence/pb11ct.html> and Document 41 in the enclosed materials. 97 See <http://cyber.harvard.edu/eon/evidence/pb11ct.html> and Document 41 in the enclosed materials. 98 For the responsibilities of the Office of the Dean in general and the Office of the Associate Dean for Academic Affairs in particular, see "Harvard University Faculty of Arts and Sciences, Administration," at <http://www.fas.harvard.edu/ administration/faculty-wide.html> and Document 10 in the enclosed materials. 99 See "Tenure System Comes under Fire," in the Boston Globe, June 2, 1998, p. A14, at <http://cyber.harvard.edu/eon/evidence/tscf.html> and Document 19 in the enclosed materials. |
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36 The question of Dean Thompson's involvement in my case is still more complicated. In his letter to me of November 19th, immediately after assuring me that Dean Thompson did not "participate in" my tenure review and had "recused herself" from my appeal, Dean Knowles quoted as authority "the document describing the FAS tenure process."100 However, in his letter he did not mention the author of the document or the date of the document's release. In fact, the document he quoted and to whose authority he appealed is Dean Thompson's memo of March 27, 1998, the purpose of which is to describe "The Tenure Appointment Process in the Faculty of Arts and Sciences."101 My advisor, Professor Nesson, and I believe that drafting and issuing a restatement of the Harvard University tenure review procedures in the Faculty of Arts and Sciences while a decision governed by those procedures is under appeal on the grounds that the procedures, in a variety of ways, were violated constitutes involvement in the appeal. In other words, contrary to Dean Knowles's assurance to me in his letter of November 19th and contrary to Dean Thompson's assurance, which she stated "unequivocally" in her letter to me which I received on November 17th, we believe that by virtue of her March 27th memo Dean Thompson played and continues to play a role in my appeal of President Rudenstine's decision to deny my tenure. Moreover, Dean Thompson's own March 27th memo is what suggested to us that she was involved in my tenure review before the ad hoc committee stage, for her memo states that after a candidate has been recommended for tenure by his department (but before the ad hoc committee stage) The complete dossier is reviewed by the Dean and the Academic Deans, who concern themselves mainly with the procedural aspects of the search [i.e., tenure review].102 Similarly, the Harvard University tenure review procedures in the Faculty of Arts and Sciences provide that after a departmental vote in favor of a candidate The dossier is reviewed by the Academic Deans to advise the Dean on whether the appropriate procedures have been followed and whether the case is sufficiently developed to warrant a request to 100 See <http://cyber.harvard.edu/eon/evidence/pb1119jk.html> and Document 42 in the enclosed materials. 101 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. 102 See <http://cyber.harvard.edu/eon/evidence/327cjtmemo.html> and Document 2 in the enclosed materials. The words in brackets are added. |
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37 the President to convene an ad hoc committee.103 If not Dean Thompson, then which members of the Office of the Dean would have been responsible for ensuring that "appropriate procedures" had been followed in my tenure review? Which dean or deans would have concerned themselves with "the procedural aspects of the search"? Which dean or deans would have been responsible for considering the appropriateness of the participation in departmental deliberations about my tenure by Professor Thompson, who in the late summer of 1996 was appointed associate provost of the University?104 Which dean or deans would have been responsible for determining whether faculty Associate Dean Peter Ellison, a Professor of Anthropology whose scholarly expertise concerns the biological bases of behavior,105 acted reasonably in rejecting the preponderance of the Department of Government's recommendations when he formed the ad hoc committee that advised President Rudenstine on my tenure? Which dean or deans would have been responsible for ensuring that the ad hoc committee composed to advise President Rudenstine on my tenure contained members who were impartial and brought to the deliberations relevant expertise? Finally, we have noticed a curious discrepancy between Harvard's written procedures concerning promotion and tenure in the Faculty of Arts and Sciences and Dean Thompson's description in her memo of March 27th. In Harvard's written procedures, Dean Thompson and Dean Laura Gordon Fisher are explicitly mentioned as having responsibility for approving the "blind letter."106 This early stage in the tenure review process is important because it determines the precise field for which a candidate is being considered, the appropriate "comparison list of scholars," and to whom among a range of "outside scholars" the "blind letter" will be sent. Since the responses by outside scholars to the "blind letter" go into the dossier that is reviewed first by the candidate's department and then, if he is recommended for tenure, by the Office of the Dean, the ad hoc committee, and the president, participation by members of the Office of the Dean in the process at this early stage influences the outcome at all stages. In contrast to the 1996 103 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1994 revisions, p. 13, at <http://cyber.harvard.edu/eon/evidence/tenrevprocedures.html> and Document 1 in the enclosed materials. 104 See "Thompson Named Associate Provost," in the Harvard University Gazette, September 19, 1996, pp. 1, 6, at <http://cyber.harvard.edu/eon/evidence/tnap91996.html> and Document 14 in the enclosed materials. 105 See the Harvard University Department of Anthropology Faculty Directory, at <http://www.wjh.harvard.edu/anthro/faculty/bio/ellison.html#interests> and Document 10d in the enclosed materials. 106 See Harvard University tenure review procedures in the Faculty of Arts and Sciences, 1996 revisions, p. 12, at <http://cyber.harvard.edu/tenrevprocedures.html> and Document 1 in the enclosed materials. |
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38 revision of Harvard's published procedures, Dean Thompson's memo of March 27, 1998, not only does not mention her own formal role in approving the "blind letter" but altogether omits reference to the role of the Office of the Dean in this crucial early stage of the tenure review. Professor Nesson and I believe that this discrepancy further contributes to the appearance of procedural impropriety in my tenure review. In sum, the involvement in my tenure review by Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson introduced bias into departmental deliberations, introduced bias into President Rudenstine's deliberations, created a conflict of interest for the dean of the Faculty of Arts and Sciences and the associate deans, and gave the appearance of abuse of power both in connection to the supervisory position Professor Thompsons occupies, as associate provost, in relation to his wife's official role as associate dean for academic affairs and in connection to the supervisory position his wife in her official role as associate dean occupies in relation to his role as professor in the Department of Government. Harvard's formal tenure review procedures, established practices, and the principles embodied in them require high officials in the university's Central Administration and the Office of the President to recuse themselves from tenure deliberations in their home departments, especially when their spouses serve in positions that are, in a variety of direct and indirect ways, administratively connected to the tenure review process. In my case, Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson failed to recuse himself; the Department of Government failed to require that he recuse himself; and the Office of the Dean failed to require that Professor Thompson recuse himself. As a result, Harvard denied me the fair consideration in tenure review that its formal procedures oblige it to provide. * * * I reiterate what I said at the outset. My grievances--both concerning the composition of the ad hoc committee and concerning Professor Thompson's participation in my tenure review--focus on procedural wrongs and do not address the motives or character of those involved. While I have of course never believed that tenure at Harvard is a right, Harvard's written procedures, established practices, and the principles embodied in them promise to all candidates for tenure that Harvard will adhere to and fairly administer its own review process. Based on the reasons outlined in this letter, I hope you will agree that serious and substantial flaws, separately and together, fatally compromised the process by which President Rudenstine reached his decision to reject the recommendation of the Department of Government that I be awarded tenure. I hope you will agree as well that it is the responsibility of the Office of the Dean to prevent the wrongs that I have outlined. And I hope you will now assist in setting aside President Rudenstine's decision and establishing a new process for the fair consideration of my tenure. |
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39 Sincerely, Peter Berkowitz Associate Professor of Government |