Berkowitz's 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 Sciences Henry Rosovsky offered a final internal appeal option for Berkowitz.

Rosovsky told The Crimson that the associate professor might go to the Joint Committee on Appointments, a body composed of members of both the Harvard Corporation and the Board of Overseers.

The Joint Committee, however, is where Berkowitz began his appeal.

According to Berkowitz, its members have received numerous letters from him and have declined to reply to any of them.

If he were to file a lawsuit, Berkowitz said he would contend that the University failed to follow its own procedures in the course of evaluating him for tenure. Berkowitz and his lawyer, Matthew Feinberg of the Boston firm Feinberg & Kamholtz, said the suit would be filed in Middlesex Superior Court.

Reply and Rebut

Berkowitz's bid for a spot on Harvard's senior Faculty ended in the spring of 1997, when Harvard President Neil L. Rudenstine decided not to promote him.

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

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

The elected members, in dismissing Berkowitz's grievance, rejected his principal charges against the University. His complaint centered on allegations that his tenure review was contaminated both by the ad hoc committee of scholars convened to assess him and by the intervention of Associate Provost Dennis F. Thompson, a member of Berkowitz's department and a University official.

Berkowitz has written a reply to the Docket Committee. In this latest missive, which Berkowitz said he planned to send today, he challenged the authority of the elected members to engage in a lengthy investigation.

Berkowitz's response contains citations from the FAS Guidelines, which authorize the committee only to conduct a "preliminary screening" of a formal grievance filing like the one he submitted in January.

"I would have thought that an inquiry of nearly five months, which involved consultation with outside legal counsel; the examination of several witnesses; an extensive review of Harvard rules; and a hearing in which I responded to questions from the elected members for more than an hour and a half would together establish that my grievances could by definition not be clearly without merit," Berkowitz wrote.

Berkowitz claimed in his grievance that four of the five professors who served on his ad hoc committee "showed bias, conflict of interest, or lack of relevant expertise."

Harvard's tenure procedures dictate that an ad hoc committee be formed after a candidate has received his or her department's recommendation.

According to University rules, Rudenstine, as president, is free to disregard the advice of either or both the relevant department and the ad hoc committee in making his decision about tenure.

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

To Berkowitz's charge that his ad hoc committee was poorly constituted, the Docket Committee responded with a counter-charge, suggesting Berkowitz misinterpreted the Appointment Handbook's guidelines for convening an ad hoc committee.

In their letter to Berkowitz, which he provided to The Crimson, the Docket Committee imputed to Berkowitz the belief that he was entitled to an ad hoc committee of specialists in his particular field--the history of political philosophy. The elected members then suggested that this was a faulty expectation.

Citing Berkowitz's reference to

"recognized experts" in his complaint, the elected members wrote they could find no "requirement that any member of an ad hoc tenure review committee, much less the committee as a whole, be expert in the narrow subject-matter areas of the tenure candidate."

Berkowitz, in his retort, denied the premise of the Docket Committee's argument. He said he never asserted that Harvard policy required the formation of an ad hoc committee of scholars whose specialties exactly matched his own.

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

Friend, the official spokesperson for the elected members, refused to elaborate further on the decision.

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

The Docket Committee also addressed Berkowitz's allegation that Thompson, with whom Berkowitz has clashed on matters of scholarship, might have exercised undue influence in his tenure review. This claim is based on two conditions of Thompson's position at the University.

First, according to Berkowitz, the potential for procedural impropriety in his tenure review arose from Thompson's serving both as a government department Faculty member--and thus as a collegial reviewer of Berkowitz's candidacy--and in an administrative capacity at the University.

Second, Berkowitz stated in his grievance, Thompson compromised his review because he is the husband of Associate Dean for Academic Affairs Carol J. Thompson, whose duties include administrative functions related to Faculty appointments.

"We are not aware of any published rule that requires a member of a departmental faculty who also holds an official position in the University to excuse himself or herself from the obligation imposed on members of a department to express their views regarding tenure candidates in their department," the elected members said in their letter.

They also rejected Berkowitz's claim that Thompson's spousal relationship with the associate dean--someone over whom the associate provost could exercise authority, according to Berkowitz--violates the University's published Sexual Harassment and Unprofessional Conduct Guidelines in FAS.

In his response, Berkowitz reiterated the charge stated in his original grievance filing that the associate provost's "multiple and far-ranging tasks" created a conflict of interest for Thompson in the tenure review of a colleague whose promotion he opposed.

In addition to providing Berkowitz with an explanation of their dismissal of his complaint, the elected members stated in their letter that they had conducted an investigation of the function and jurisdiction of their committee.

"We are told that your written formal grievance appears to be the first one ever presented to the Elected Members under the Guidelines," the elected members said.

They said they therefore relied on "independent legal counsel."

Berkowitz first learned that the Docket Committee had retained an outside attorney when Secretary of the Faculty John B. Fox Jr. '69 sent him an e-mail message in early May. Berkowitz said he was surprised to see that the message had been "c.c.ed" to Jeffrey P. Swope '67 of the Boston law firm Palmer & Dodge.

Some members of the Berkowitz camp said they believe attorneys produced the Docket Committee's letter.

"It is clearly a document that was long in preparation, and it was prepared with a high degree of professionalism," Nesson said. "It was written by a lawyer."

Nesson, a lawyer himself, also expressed concern about the precedent set by the Docket Committee in their dismissal. He and another Faculty member who wished to remain anonymous both suggested that the committee might block future grievances from receiving a fair hearing.

Fox, however, offered a different interpretation. Explaining why this was the first time a Docket Committee had evaluated a formal complaint under the FAS Guidelines, the secretary called the procedures that Berkowitz followed "a last resort."

"Within the Faculty," Fox said, "there are so many ways to discuss these things that they ordinarily get resolved long before anybody looks up these procedures, much less actually uses them."