Harvard Appeals Court's Tenure Disputes Ruling

Harvard wants one more chance to keep its tenure procedures secret now that Peter Berkowitz--a former assistant professor denied tenure in the Government department--has convinced the Massachussetts superior court that his lawsuit against Harvard should go forward.

Harvard's attorneys have asked judge Raymond J. Brassard to send Berkowitz's lawsuit stemming from his tenure dispute straight to an appellate court, before the superior court trial even starts.

On Monday, Harvard asked the superior court to refer the question to the appellate court, and also asked the appellate court to begin considering the question.

If their motion is denied, Harvard may be forced to release internal documents on its tenure proceedings for the first time in the "discovery of evidence" phase of a civil suit.

A hearing on Harvard's latest motion will take place Feb. 16th in the Mass. Superior Court. Brassard already denied Harvard's motion to dismiss this case twice.

Berkowitz filed suit last spring, three years after he was denied tenure in the government department, alleging that Harvard misapplied its own grievance proceedures, resulting in a breach of contract.

Berkowitz is likely to seek the names of ad hoc tenure review committee members and depositions from administrators involved in the tenure procedure, all information which the University has never made public.

Harvard's filing in the case said the matter should move to an appellate court because Berkowitz's right to conduct "highly intrusive discovery into the very heart of the confidential tenure review process will be hotly contested, and may be entirely unnecessary."

At the heart of Harvard's argument is the fact that Berkowitz amended his complaint this fall, and included information about the list of scholars that he was compared to by his ad hoc tenure committee.

Berkowitz says the scholars were all farther along in their careers than he was, and thus should not have been on the list.

Harvard says that, because this matter was never pursued through its internal grievance system, the court should not rule on the matter--even though Berkowitz just learned of the names recently, well after the internal grievance review was completed.

"We believe that the court's decision is wrong in a fundamental way," said University spokesman Joe Wrinn. "And we think that the issues are so important in this case that it warrants the review we are seeking in an appellate court."

Legal experts familiar with the Massachusetts court system say Harvard's appeal--called an interlocutory appeal--is highly unlikely to be approved, especially by a judge who has ruled for Berkowitz twice before.

"Interlocutory appellate review is an extraordinary remedy. It's an extraordinary recourse to be used if the mere carrying forward of the lawsuit is going to inflict irreparable damage," said Harvey A. Silverglate, co-founder of the Foundation for Individual Rights in Education (FIRE).

"They're in desperation mode now. If they don't do something to stop discovery all their secrets will be out," he added.

"What Harvard is asking in this case is extraordinary," said William C. Newman, an attorney in Northampton, Mass. with extensive appellate court experience. "Interlocutory appeals are generally disfavored."

While experts say the move is unlikely to resolve in Harvard's favor, they agree that it was the logical next step.

"If I were representing Harvard, I would do the same thing," Silverglate said.