Tenure Suit Sent to Appellate Court

Harvard prevailed in a last-ditch effort to protect the secrecy of its tenure process when a Mass. superior court judge ruled on Friday to send former Assistant Professor of Government Peter Berkowitz's lawsuit against the University to an appeals court.

Judge Raymond J. Brassard's decision halted the "discovery of evidence" phase in the civil suit, in which Berkowitz had demanded that the University release internal tenure documents.

The interlocutory appeal was filed by Harvard two weeks ago, asking Brassard to send Berkowitz's case--which emerged after he was denied tenure in 1997--directly to an appeals court before the superior court trial began. Harvard also filed the case with the appeals court itself.

But the appeals court refused to take up the case before Brassard gave his decision. Brassard's ruling on Friday means the appeals court is now obligated to hear Berkowitz's case.

Deputy General Counsel Robert W. Iuliano, one of the University's attorneys, said Berkowitz's case was an ideal one to send to an appellate court, even though such a move is rare.

"I think the judge got it right. This is the sort of case that ought to be reported," Iuliano said.

Harvard has agreed to grant Berkowitz the relief he seeks if the case is not dismissed by the appellate court--a position that will enable the University to keep its tenure process secret.

"The cost of going forward with litigation is not worth the battle and could potentially require us to produce confidential tenure documents," Iuliano said.

If the appellate court does not dismiss the case, the University will convene an Ad Hoc Grievance panel to review Berkowitz's grievance with his tenure procedure.

"This is precisely the relief Plaintiff seeks, and will thus resolve this dispute in its entirety," Harvard's attorneys wrote in a brief submitted to the Middlesex Superior Court.

But as Berkowitz's lawyer David A. Handzo said in court on Friday, Berkowitz is also seeking monetary damages and another shot at tenure in addition to any findings the ad hoc panel makes.

"Harvard can't renege on its promise. All Harvard can argue about is what it promised," said Harvey A. Silverglate, a Boston attorney and co-founder of the Foundation for Individual Rights in Education (FIRE).

But haggling over what was promised is not a concern for Harvard's attorneys, who said they think the case has a very good chance of prevailing before the appeals court.

Silverglate speculates that Brassard's decision to report the case to the appellate court came partly because of Harvard attorneys' promise to end the litigation quickly if they lose.

"There's a very strong judicial policy against [interlocutory appeals], otherwise litigation could go on indefinitely," he said.

"It's avoiding the discovery process. They don't want their linen washed publicly," Silverglate added. "They would rather lose the lawsuit than let discovery proceed. Harvard has probably successfully blocked discovery into the Berkowitz tenure process."

Silverglate and Iuliano said an appeals court hearing should take place anytime between four months to a year from Judge Brassard's decision.