Berkowitz Meets Docket Panel to Review Claim

As both sides appear ready for a court fight, the University and Associate Professor of Government Peter Berkowitz moved a step closer this week to exhausting the school's avenues for resolving disputes internally.

Meanwhile, a few new faces have entered the fray, with Buttenwieser University Professor Stanley H. Hoffmann joining Berkowitz's camp, and Jeffrey P. Swope '67 of the Boston law firm Palmer & Dodge signing on as counsel for the three Faculty members of the Docket Committee.

Wednesday morning Berkowitz met with the Docket Committee, which is in the midst of evaluating the formal grievance Berkowitz submitted to the University Jan. 6.

According to the University's formal Guidelines for the Resolution of Faculty Grievances, the Docket Committee must assess whether the complaint is or is not "clearly without merit."

Berkowitz and Weld Professor of Law Charles R. Nesson '60, who has been advising him since he was denied tenure in 1997, said Secretary of the Faculty John B. Fox Jr. '59 attended in addition to the members of the Docket Committee.

Fox, who refused to confirm that the meeting took place, said the Berkowitz tenure review remains an "entirely confidential matter" from the standpoint of the administration.

The Docket Committee is composed of Richards Professor of Chemistry Cynthia M. Friend, Pearson Professor of Modern Mathematics and Mathematical Logic Warren D. Goldfarb '69, and Professor of Economics David M. Cutler '87.

According to Berkowitz, Friend chaired Wednesday's meeting, which lasted about an hour and forty-five minutes.

Also present was Hoffmann, who appeared as a character witness for Berkowitz.

Hoffmann agreed to accompany him after Berkowitz received an e-mail message from Fox advising him that the Docket Committee would object to his bringing Nesson, who teaches at Harvard Law School and is not a member of the Faculty of Arts and Sciences (FAS).

"I was his original choice of faculty adviser," Nesson said. "But Peter was told I belong to the wrong faculty, which seemed pretty arbitrary."

"It was a silly mistake [on the part of the University] to deprive Peter of his chosen counsel," Nesson added.

Hoffmann, who had not played a role in the case until Wednesday, declined to comment, but Nesson suggested public support from a University professor was a significant boon for Berkowitz.

"All that [the decision to exclude me] resulted in was Peter's going in with Stanley Hoffmann, who, if anything, carries more weight than I do," Nesson said.

Nesson nonetheless appeared Wednesday at Friend's office in the Mallinckrodt Laboratory, where the meeting took place. Nesson said after introducing himself to Fox and Friend, he sat outside in the hall.

Hoffmann had to leave after about an hour, Berkowitz and Nesson said, and the meeting continued in his absence.

"They grilled Peter for an hour and forty minutes," Nesson said, stressing the legalistic approach of the Docket Committee members.

"They asked repeatedly about the applicable rules, relevant precedents, quality of evidence and coherence of my arguments," Berkowitz said.

In defending himself before the committee, Berkowitz said he mentioned that he submitted a list of 37 questions about his tenure evaluation to Dean of FAS Jeremy R. Knowles twice in the fall of 1998. He said he has received no response.

"Much of the information that we regard as relevant we don't have access to," Berkowitz said.

"I found their examination a rather labor-intensive effort for a committee that is not authorized to act as a deliberative body and which is obliged to pass on grievances to the next stage unless they are 'clearly without merit,'" Berkowitz added.

None of the members of the Docket Committee was available for comment, but Berkowitz reported they have notified him that they will reach a decision by the "end of the term."

If the Docket Committee determines that his complaint is not frivolous, the University's guidelines dictate that an Ad Hoc Grievance Panel be formed to investigate and resolve the matter.

Berkowitz called his meeting with the Docket Committee "unprecedented." The University's Guidelines for the Resolution of Faculty Grievances contains no language about a grievant's coming before this body.

In another apparently unprecedented move, the Faculty members of the Docket Committee have hired a lawyer--a development Berkowitz learned when he noticed an e-mail message from Fox concerning Wednesday's meeting had been forwarded to counselor Swope.

Nesson, who said it was "quite good of them to let us know he was representing them," speculated about why Friend, Cutler and Goldfarb sought outside legal counsel.

"In big-time litigation, sometimes there are lawyers for all participants," Nesson said. But, as Berkowitz's case has not yet entered the litigation stage, he suggested an alternative, "more positive," rationale.

"Maybe they hired Swope when there was a genuine recognition that members of the Docket Committee actually needed representation because they are in a conflicted position," Nesson said.

Calling all three "distinguished members of FAS," Nesson explained that they have been called upon to make a judgment in a matter of great import to Knowles, who was responsible for their appointment to the Docket Committee.

In an April 30 e-mail message to Swope, Nesson stressed the importance of maintaining collegiality despite the increasingly litigious aspects of Berkowitz's case.

"Jeff," he wrote, "we are dealing with the grievance of a young member of the Harvard Faculty... This is not and should not be an environment for cutthroat lawyering."