Berkowitz Claim Found 'Clearly Without Merit'

After nearly five months of deliberation, the elected members of the Faculty's Docket Committee have issued their judgment in the case of Associate Professor of Government Peter Berkowitz.

On May 28, 1999, the last day of spring term, Berkowitz received a letter from Richards Professor of Chemistry Cynthia M. Friend notifying him that the elected members had found his complaint to be "clearly without merit."

This most recent repudiation marks the end of Berkowitz's two-year campaign within the Faculty of Arts and Sciences (FAS) to win a rehearing for tenure.

"With the finding by the elected members of the Docket Committee that Professor Berkowitz's grievance is 'clearly without merit,' the complaint has been dismissed, and the processes of the Faculty of Arts and Sciences are complete," said Dean of the Faculty Jeremy R. Knowles upon hearing news of the verdict.

According to FAS's published "Guidelines for the Resolution of Faculty Grievances," when confronted with a grievance filing, the elected members of the Docket Committee may or may not decide to pass it on for consideration by an ad hoc grievance panel.

As far as the University is concerned, when the elected members-Friend, Professor of Economics David M. Cutler and Pearson Professor of Modern Mathematics and Mathematical Logic Warren D. Goldfarb '69-reject a complaint, the grievance is laid to rest.

Final Options

But now that he appears to have exhausted the University's internal mechanisms for resolving Faculty disputes, Berkowitz said he finds himself "forced to contemplate seriously" taking outside legal action against the University.

Former Dean of the Faculty of Arts and SciencesHenry D. Rosovsky offered a final internal appealoption for Berkowitz.

Rosovsky told The Crimson that the associateprofessor might go to the Joint Committee onAppointments, a body composed of members of boththe Harvard Corporation and the Board ofOverseers.

The Joint Committee, however, is whereBerkowitz began his appeal.

According to Berkowitz, its members havereceived numerous letters from him and havedeclined to reply to any of them.

If he were to file a lawsuit, Berkowitz said hewould contend that the University failed to followits own procedures in the course of evaluating himfor tenure. Berkowitz and his lawyer, MatthewFeinberg of the Boston firm Feinberg & Kamholtz,said the suit would be filed in Middlesex SuperiorCourt.

Reply and Rebut

Berkowitz's bid for a spot on Harvard's seniorFaculty ended in the spring of 1997, when HarvardPresident Neil L. Rudenstine decided not topromote him.

In an effort to win reconsideration for tenure,Berkowitz has teamed up with Weld Professor of LawCharles R. Nesson '60, a vocal critic of theentire appointment process.

Nesson, who said he would like to see"openness" replace the secrecy embedded in theUniversity's current tenure review practices,called the Docket Committee proceedings "loadedagainst Peter from the get-go."

The elected members, in dismissing Berkowitz'sgrievance, rejected his principal charges againstthe University. His complaint centered onallegations that his tenure review wascontaminated both by the ad hoc committee ofscholars convened to assess him and by theintervention of Associate Provost Dennis F.Thompson, a member of Berkowitz's department and aUniversity official.

Berkowitz has written a reply to the DocketCommittee. In this latest missive, which Berkowitzsaid he planned to send today, he challenged theauthority of the elected members to engage in alengthy investigation.

Berkowitz's response contains citations fromthe FAS Guidelines, which authorize the committeeonly to conduct a "preliminary screening" of aformal grievance filing like the one he submittedin January.

"I would have thought that an inquiry of nearlyfive months, which involved consultation withoutside legal counsel; the examination of severalwitnesses; an extensive review of Harvard rules;and a hearing in which I responded to questionsfrom the elected members for more than an hour anda half would together establish that my grievancescould by definition not be clearly without merit,"Berkowitz wrote.

Berkowitz claimed in his grievance that four ofthe five professors who served on his ad hoccommittee "showed bias, conflict of interest, orlack of relevant expertise."

Harvard's tenure procedures dictate that an adhoc committee be formed after a candidate hasreceived his or her department's recommendation.

According to University rules, Rudenstine, aspresident, is free to disregard the advice ofeither or both the relevant department and the adhoc committee in making his decision about tenure.

Endorsed by the Department of Government,Berkowitz did not receive the backing of amajority of the ad hoc committee members.

To Berkowitz's charge that his ad hoc committeewas poorly constituted, the Docket Committeeresponded with a counter-charge, suggestingBerkowitz misinterpreted the AppointmentHandbook's guidelines for convening an ad hoccommittee.

In their letter to Berkowitz, which he providedto The Crimson, the Docket Committee imputed toBerkowitz the belief that he was entitled to an adhoc committee of specialists in his particularfield-the history of political philosophy. Theelected members then suggested that this was afaulty expectation.

Citing Berkowitz's reference to "recognizedexperts" in his complaint, the elected memberswrote they could find no "requirement that anymember of an ad hoc tenure review committee, muchless the committee as a whole, be expert in thenarrow subject-matter areas of the tenurecandidate."

Berkowitz, in his retort, denied the premise ofthe Docket Committee's argument. He said he neverasserted that Harvard policy required theformation of an ad hoc committee of scholars whosespecialties exactly matched his own.

"Professor Friend's letter puts in my mouth,and then proceeds to refute, a claim nowhere foundin my formal grievance," Berkowitz said.

Friend, the official spokesperson for theelected members, refused to elaborate further onthe decision.

"All the details of our deliberations are inthe letter," she said.

The Docket Committee also addressed Berkowitz'sallegation that Thompson, with whom Berkowitz hasclashed on matters of scholarship, might haveexercised undue influence in his tenure review.This claim is based on two conditions ofThompson's position at the University.

First, according to Berkowitz, the potentialfor procedural impropriety in his tenure reviewarose from Thompson's serving both as a governmentdepartment Faculty member-and thus as a collegialreviewer of Berkowitz's candidacy-and in anadministrative capacity at the University.

Second, Berkowitz stated in his grievance,Thompson compromised his review because he is thehusband of Associate Dean for Academic AffairsCarol J. Thompson, whose duties includeadministrative functions related to Facultyappointments.

"We are not aware of any published rule thatrequires a member of a departmental faculty whoalso holds an official position in the Universityto excuse himself or herself from the obligationimposed on members of a department to expresstheir views regarding tenure candidates in theirdepartment," the elected members said in theirletter.

They also rejected Berkowitz's claim thatThompson's spousal relationship with the associatedean-someone over whom the associate provost couldexercise authority, according toBerkowitz-violates the University's publishedSexual Harassment and Unprofessional ConductGuidelines in FAS.

In his response, Berkowitz reiterated thecharge stated in his original grievance filingthat the associate provost's "multiple andfar-ranging tasks" created a conflict of interestfor Thompson in the tenure review of a colleaguewhose promotion he opposed.

In addition to providing Berkowitz with anexplanation of their dismissal of his complaint,the elected members stated in their letter thatthey had conducted an investigation of thefunction and jurisdiction of their committee.

"We are told that your written formal grievanceappears to be the first one ever presented to theelected members under the Guidelines," the electedmembers said.

They said they therefore relied on "independentlegal counsel."

Berkowitz first learned that the DocketCommittee had retained an outside attorney whenSecretary of the Faculty John B. Fox Jr. '59 senthim an e-mail message in early May. Berkowitz saidhe was surprised to see that the message had been"c.ed" to Jeffrey P. Swope '67 of the Boston lawfirm Palmer & Dodge.

Some members of the Berkowitz camp said theybelieve attorneys produced the Docket Committee'sletter.

"It is clearly a document that was long inpreparation, and it was prepared with a highdegree of professionalism," Nesson said. "It waswritten by a lawyer."

Nesson, a lawyer himself, also expressedconcern about the precedent set by the DocketCommittee in their dismissal. He and anotherFaculty member who wished to remain anonymous bothsuggested that the committee might block futuregrievances from receiving a fair hearing.

Fox, however, offered a differentinterpretation. Explaining why this was the firsttime a Docket Committee had evaluated a formalcomplaint under the FAS Guidelines, the secretarycalled the procedures that Berkowitz followed "alast resort."

"Within the Faculty," Fox said, "there are somany ways to discuss these things that theyordinarily get resolved long before anybody looksup these procedures, much less actually usesthem.

Former Dean of the Faculty of Arts and SciencesHenry D. Rosovsky offered a final internal appealoption for Berkowitz.

Rosovsky told The Crimson that the associateprofessor might go to the Joint Committee onAppointments, a body composed of members of boththe Harvard Corporation and the Board ofOverseers.

The Joint Committee, however, is whereBerkowitz began his appeal.

According to Berkowitz, its members havereceived numerous letters from him and havedeclined to reply to any of them.

If he were to file a lawsuit, Berkowitz said hewould contend that the University failed to followits own procedures in the course of evaluating himfor tenure. Berkowitz and his lawyer, MatthewFeinberg of the Boston firm Feinberg & Kamholtz,said the suit would be filed in Middlesex SuperiorCourt.

Reply and Rebut

Berkowitz's bid for a spot on Harvard's seniorFaculty ended in the spring of 1997, when HarvardPresident Neil L. Rudenstine decided not topromote him.

In an effort to win reconsideration for tenure,Berkowitz has teamed up with Weld Professor of LawCharles R. Nesson '60, a vocal critic of theentire appointment process.

Nesson, who said he would like to see"openness" replace the secrecy embedded in theUniversity's current tenure review practices,called the Docket Committee proceedings "loadedagainst Peter from the get-go."

The elected members, in dismissing Berkowitz'sgrievance, rejected his principal charges againstthe University. His complaint centered onallegations that his tenure review wascontaminated both by the ad hoc committee ofscholars convened to assess him and by theintervention of Associate Provost Dennis F.Thompson, a member of Berkowitz's department and aUniversity official.

Berkowitz has written a reply to the DocketCommittee. In this latest missive, which Berkowitzsaid he planned to send today, he challenged theauthority of the elected members to engage in alengthy investigation.

Berkowitz's response contains citations fromthe FAS Guidelines, which authorize the committeeonly to conduct a "preliminary screening" of aformal grievance filing like the one he submittedin January.

"I would have thought that an inquiry of nearlyfive months, which involved consultation withoutside legal counsel; the examination of severalwitnesses; an extensive review of Harvard rules;and a hearing in which I responded to questionsfrom the elected members for more than an hour anda half would together establish that my grievancescould by definition not be clearly without merit,"Berkowitz wrote.

Berkowitz claimed in his grievance that four ofthe five professors who served on his ad hoccommittee "showed bias, conflict of interest, orlack of relevant expertise."

Harvard's tenure procedures dictate that an adhoc committee be formed after a candidate hasreceived his or her department's recommendation.

According to University rules, Rudenstine, aspresident, is free to disregard the advice ofeither or both the relevant department and the adhoc committee in making his decision about tenure.

Endorsed by the Department of Government,Berkowitz did not receive the backing of amajority of the ad hoc committee members.

To Berkowitz's charge that his ad hoc committeewas poorly constituted, the Docket Committeeresponded with a counter-charge, suggestingBerkowitz misinterpreted the AppointmentHandbook's guidelines for convening an ad hoccommittee.

In their letter to Berkowitz, which he providedto The Crimson, the Docket Committee imputed toBerkowitz the belief that he was entitled to an adhoc committee of specialists in his particularfield-the history of political philosophy. Theelected members then suggested that this was afaulty expectation.

Citing Berkowitz's reference to "recognizedexperts" in his complaint, the elected memberswrote they could find no "requirement that anymember of an ad hoc tenure review committee, muchless the committee as a whole, be expert in thenarrow subject-matter areas of the tenurecandidate."

Berkowitz, in his retort, denied the premise ofthe Docket Committee's argument. He said he neverasserted that Harvard policy required theformation of an ad hoc committee of scholars whosespecialties exactly matched his own.

"Professor Friend's letter puts in my mouth,and then proceeds to refute, a claim nowhere foundin my formal grievance," Berkowitz said.

Friend, the official spokesperson for theelected members, refused to elaborate further onthe decision.

"All the details of our deliberations are inthe letter," she said.

The Docket Committee also addressed Berkowitz'sallegation that Thompson, with whom Berkowitz hasclashed on matters of scholarship, might haveexercised undue influence in his tenure review.This claim is based on two conditions ofThompson's position at the University.

First, according to Berkowitz, the potentialfor procedural impropriety in his tenure reviewarose from Thompson's serving both as a governmentdepartment Faculty member-and thus as a collegialreviewer of Berkowitz's candidacy-and in anadministrative capacity at the University.

Second, Berkowitz stated in his grievance,Thompson compromised his review because he is thehusband of Associate Dean for Academic AffairsCarol J. Thompson, whose duties includeadministrative functions related to Facultyappointments.

"We are not aware of any published rule thatrequires a member of a departmental faculty whoalso holds an official position in the Universityto excuse himself or herself from the obligationimposed on members of a department to expresstheir views regarding tenure candidates in theirdepartment," the elected members said in theirletter.

They also rejected Berkowitz's claim thatThompson's spousal relationship with the associatedean-someone over whom the associate provost couldexercise authority, according toBerkowitz-violates the University's publishedSexual Harassment and Unprofessional ConductGuidelines in FAS.

In his response, Berkowitz reiterated thecharge stated in his original grievance filingthat the associate provost's "multiple andfar-ranging tasks" created a conflict of interestfor Thompson in the tenure review of a colleaguewhose promotion he opposed.

In addition to providing Berkowitz with anexplanation of their dismissal of his complaint,the elected members stated in their letter thatthey had conducted an investigation of thefunction and jurisdiction of their committee.

"We are told that your written formal grievanceappears to be the first one ever presented to theelected members under the Guidelines," the electedmembers said.

They said they therefore relied on "independentlegal counsel."

Berkowitz first learned that the DocketCommittee had retained an outside attorney whenSecretary of the Faculty John B. Fox Jr. '59 senthim an e-mail message in early May. Berkowitz saidhe was surprised to see that the message had been"c.ed" to Jeffrey P. Swope '67 of the Boston lawfirm Palmer & Dodge.

Some members of the Berkowitz camp said theybelieve attorneys produced the Docket Committee'sletter.

"It is clearly a document that was long inpreparation, and it was prepared with a highdegree of professionalism," Nesson said. "It waswritten by a lawyer."

Nesson, a lawyer himself, also expressedconcern about the precedent set by the DocketCommittee in their dismissal. He and anotherFaculty member who wished to remain anonymous bothsuggested that the committee might block futuregrievances from receiving a fair hearing.

Fox, however, offered a differentinterpretation. Explaining why this was the firsttime a Docket Committee had evaluated a formalcomplaint under the FAS Guidelines, the secretarycalled the procedures that Berkowitz followed "alast resort."

"Within the Faculty," Fox said, "there are somany ways to discuss these things that theyordinarily get resolved long before anybody looksup these procedures, much less actually usesthem.