Bok Denies Tenure For Law Professor

President Bok yesterday, employing a veto power he has never before used, reversed a decision by the Law School faculty to grant tenure to a visiting scholar, professors said.

By withdrawing the offer of tenure to Visiting Professor David Trubek, Bok overruled more than two-thirds of the faculty and Dean of the Law School James Vorenberg '49, who voted earlier this year to tenure the legal expert, who is considered to be an ideologically left-leaning scholar.

Faculty members said yesterday that Bok's action threatens to decrease the historic independence of the Law School. In addition several professors said the decision was a blow to academic freedom because it was based on ideological rather than scholarly grounds.

"It's modern day McCarthyism," said Professor of Law Gerald Frug, who supported Trubek's appointment.

In the past few years the Law School has become increasingly split between conservative scholars and those who are broadly grouped under the heading of the liberal movement called Critical Legal Studies (CLS). Tenure decisions have seen the most public evidence of this division.

Bok, a former dean of the Law School, wrote in a memo to the faculty two years ago that in order to protect the tenure process from becoming a political battleground, he would consider reviewing tenure decisions if asked by either camp.

Each Law School decision--like every University tenure decision--technically requires the president's approval. Before writing the memo, Bok had never publicly indicated a predilection to use this power at the Law School.

In interviews yesterday, faculty members said that the decision by Bok to overturn the offer to Trubek, coupled with other tenure moves in the past two years, constituted a pattern of unfair scrutiny of the work of those professors considered to be members of CLS.

Members of CLS hold that the law is not founded on abstract principles of justice, but is necessarily intertwined with dominant social and economic norms.

Tyler Professor of Constitutional Law Laurence H. Tribe '62, who called Bok's decision "very disappointing,"said that the recent tenure decisions againstThayer Lecturer on Law Daniel Tarullo, AssistantProfessor Clare Dalton, and Trubek--all consideredaffiliates of the CLS school-were ideologicallymotivated.

"Anyone who believes that [those decisions] area coincidence has more faith in the neutrality ofthe tenure process than I can muster," said Tribe,who is a nationally--prominent expert on theConstitution.

"I think that Harvard has decided to establisha higher standard of scrutiny for those on theleft, which raises it above what is applied forthose on the right," Trubek said yesterday,shortly after being informed of the decision.

"I am disappointed in Harvard, and I amconvinced they have made a mistake," said Trubek,who plans to return to Wisconsin to teach nextyear.

Bok's unprecedented action may have influencethe case of Dalton, who was denied tenure thisspring. Dalton said yesterday that she has askedBok to reverse the decision to deny her tenure onthe basis of the president's two-year-old memo.

That memo detailed two possible scenarios inwhich Bok would intervene in a Law School tenurecase. The first would be if Vorenberg or otherfaculty members said that tenure had been blockedfor political reasons, as Dalton has claimed. Thesecond would be if the minority who opposed anappointment said that it had been approved becauseof political reasons, which was the standardapplied in the Trubek case.

In an interview earlier this week, Bok said hewas hesitant to intervene in the Dalton decision.

Bok yesterday refused to comment on eithercase.

Tribe said that Bok's decision to intervene onbehalf of a small vocal minority in the Trubekcase would necessitate a reappraisal of the Daltondecision.

"Now that Derek Bok has intervened to overrule,it would be particularly difficult to defend notintervening in the case of the denied promotion ofClare Dalton," Tribe said.

Those professors who asked Bok to review theTrubek case said that the president's interventionwas needed to maintain the scholarly standards ofthe Law School.

Professor of Law Robert Clark said that Bok'sdecision in the Trubek case "was a difficult one,but the correct decision."

Clark, one of the opponents to Trubek's tenure,said that there were questions about the qualityof his scholarship. Bok's decision "representswhat ought to be the primary value: scholarshiprather than administrative ability," he said.

Clark said that supporters of Trubek wereciting his administrative skills as much as hisscholarly talents. "I think Bok said, 'pay moreattention to scholarly merit," Clark said.

Supporters of Trubek said he was a superbscholar and worthy of tenure. The visitingprofessor is known for conducting a multi-milliondollar empirical study of the way justice isadministered in the United States. Supporters saidadministrative skills were vital to Trubek'sscholarship.

Professors on both sides of the politicalspectrum agreed that Bok's intervention in thiscase ended the traditionally assumed independenceof the Law School, although they differed on theimpact of this change.

"The Harvard [Law School] faculty is in a farbetter position to assess tenure decisions thanBok," said Tribe.

Bok made the decision after consulting with anad hoc committee of legal experts. Tribe said thecommittee convened by Bok was "distinguished," buthe added, "knowing the names I would havepredicted a negative vote."

Professor of Law Duncan M. Kennedy '64, who isconsidered to be one of the leaders of CLS, saidthat having Bok intervene was a bad precedent.

"The process is extraordinarily arbitrary, amockery of procedural fairness, and... Derek Bokjust doesn't have the intellectual and scholarlycapabilities to make a fair evaluation" of atenure candidate, Kennedy said.

Instead Kennedy said, "Bok has bought into theright wing view that diversity leads tomediocrity."

But Clark said that when he went before the adhoc committee that Bok convened, "he seemedextremely well prepared. I was amazed that he hadtaken such pains" in studying the case.

In general Clark said of the faculty at the LawSchool, "our perception is often too inbred."

"We need some outside reviewers to keep ushonest," he said.

Yale Law Professor Geoffrey Hazard, who was amember of Bok's ad hoc committee, said thatpresidential intervention "was uncommon" butlaudable.

"Yale would be helped by some such review. Weget so introverted we begin to lose touch," Hazardsaid