University, Berkowitz Discuss Settlement

With the threat of litigation looming, lawyers for the University and Associate Professor of Government Peter Berkowitz met this week to discuss the terms of a possible out-of-court settlement of the professor's tenure appeal.

"We came to a better understanding of where they stand, and we hope they came to a better understanding of where we stand," Berkowitz said of Wednesday's meeting between Anne Taylor, Harvard's general counsel, and his own attorney, Matthew Feinberg of the Boston firm Feinberg & Kamholtz.

In addition to the meeting with Feinberg, Taylor had a separate conversation on Tuesday with Weld Professor of Law Charles R. Nesson '60. Nesson has served as an informal adviser to Berkowitz since 1997, when the associate professor began his appeal of President Neil L. Rudenstine's decision not to award him tenure.

Nesson said he had several reasons for speaking with Taylor, including his desire to inform her that Berkowitz, whose Harvard employment contract expires at the end of this term, has accepted a job at George Mason University Law School in Arlington, Va.

Nesson also said he wanted to communicate his desire "to see this case end in a way that would be the best story for everybody."

Taylor said she was unable to comment on any subject related to Berkowitz's case.

Asked to give his sense of how productive the discussion was, Nesson expressed tempered optimism.

"It's hard to say at this point what progress is, but I think there was some in terms of understanding," Nesson said. "It remains to be seen what will come of it."

Nesson said he has detected no change in tone on the part of the University since Berkowitz made public his consideration of outside legal action in February.

"What surprises me is that [the University's] approach from the beginning has been on the assumption of litigation," Nesson said.

Even as the legal representatives met, an elected, three-member Docket Committee of the Faculty continued its consideration of Berkowitz's formal grievance with the University, which was filed Jan. 6.

According to the University's "Guidelines for the Resolution of Faculty Grievances," unless the Docket Committee finds the grievance to be "clearly without merit," Berkowitz's appeal must be passed on to an ad hoc committee, which would be responsible for investigating and resolving the complaint.

Berkowitz said the last official word he has received on the subject of the Docket Committee's review came in a Feb. 16 letter from Secretary of the Faculty John B. Fox Jr. '59.

According to Berkowitz, Fox wrote that the committee had begun its consideration, which would "take a little time." Fox told The Crimson yesterday that he was unable to speak about anything related to the Berkowitz matter.

Berkowitz said his attorney expressed "concern about the amount of time the Docket Committee has taken with its deliberations" at this week's meeting with Taylor. Nesson said "about a week-and-a-half ago," Fox told him that he could expect a result from the committee "this term."

"We're anxiously awaiting the results of the Docket Committee," Nesson said. "It's taking a long time."

But, he added, the prolonged duration of the review comes as no surprise.

"Various people told us it might take close to forever," Nesson said.

While Berkowitz's grievance remains in the hands of the Docket Committee, Nesson has also introduced it to a class of Harvard Law School students he's teaching this semester. The Berkowitz case has been raised in Nesson's advanced civil procedure course, although Nesson said "it has not been a subject of continuing, week-to-week focus."

A potential conflict of interest emerged a few weeks ago when Nesson's co-instructor for the course, attorney Jerome Facher of the Boston firm Hale & Dorr, announced to the class that one of his partners had been approached by the University to handle litigation surrounding the Berkowitz case.

In what Facher calls "an interesting coincidence," he learned "about three weeks ago" that Harvard had asked Joan Lukey of Hale & Dorr to represent the University in the event of a court fight.

While no one from the University was available to confirm the engagement of Lukey, who was not present at this week's meetings, she served as Harvard's counsel in the Clare Dalton tenure case, which ended in a $260,000 settlement in 1992. Dalton, a former HLS professor, sued Harvard in the late 1980s claiming gender discrimination.