Berkowitz Prepares to File Formal Grievance Over Tenure Denial

Peter Berkowitz, the associate professor of government who was denied a tenure appointment in April 1997, said he expects to file a formal grievance with the Faculty's Docket Committee in the next week.

The Docket Committee, made up of three Faculty members, may either dismiss Berkowitz's petition or convene an ad hoc grievance panel to consider his complaint.

In his grievance, Berkowitz states that "in two fundamental ways, Harvard failed to follow its own procedures" in the process of reviewing him for tenure, and his appeal to the Docket Committee culminates in a demand for a new hearing.

Longtime University observers said Berkowitz's decision to protest his tenure denial on procedural grounds--rather than on the basis of discrimination--is unprecedented.

"I don't know of a situation where there's been this kind of appeal," said former Dean of the Faculty Henry Rosovsky, who is also a member of the Corporation, the University's chief governing board.

Berkowitz's raises two broad procedural objections in his grievance. First, he alleges that the ad hoc committee convened to discuss his appointment was not well-constituted; some of its members lacked expertise in his field, while others were predictably antipathetic to his cause.

Second, Berkowitz charges that a colleague in the government department compromised the tenure review proceedings because he was able to exercise inordinate influence over other Faculty members.

In the year-and-a-half since Harvard President Neil L. Rudenstine elected not to grant Berkowitz tenure, the associate professor has enlisted the aid of campus heavyweights Martin H. Peretz, the publisher of the New Republic magazine and a social studies lecturer, and Charles R. Nesson '60, Weld professor of law at Harvard Law School (HLS).

Details of Berkowitz's appeal have been broadcast to the world over the Internet since Nesson included the case in his "Winter Evidence" course last year at HLS and his students created a Berkowitz Web site, which includes an exchange of letters between the professor and Harvard administrators.

Most controversially, the Web site lists the names of the members of Berkowitz's ad hoc tenure review committee, names that had been confidential.

With Peretz's financial assistance, Berkowitz said he has also engaged a Boston attorney, Matthew Feinberg, of Feinberg & Kamholtz.

"The thrust of the whole thing is a judgment on our part that we have not been fairly dealt with," Feinberg said.

The lawyer conceded that "outside legal action is a possibility" once Berkowitz has exhausted Harvard's internal avenues for appeal.

According to the University's "Guidelines for the Resolution of Faculty Grievances," the submission of a complaint to the Docket Committee constitutes the final step in an intracollegiate appeal.

Berkowitz said the Board of Overseers and the Joint Committee on Appointments remain possible authorities to whom he might direct his complaint. He has also not ruled out the option of suing the University if the Docket Committee finds against him, he said.

The Tenure Denial

By all accounts, Berkowitz was a controversial tenure candidate from the beginning.

At Harvard he was known as a conservative voice among his liberal colleagues, and he had become associated with an outspoken Straussian and conservative in the department, Keenan Professor of Government Harvey C. Mansfield Jr. '53.

When Markham Professor of Government Kenneth A. Shepsle, then chair of the government department, approached him about pursuing tenure in July 1996,Berkowitz said he believed he "had a fightingchance," though he recognized there would besignificant opposition.

Berkowitz had been teaching at Harvard for sixyears, the standard term before a junior professoris considered for tenure.

According to Rosovsky, who devoted a chapter ofhis 1990 book The University: An Owner'sManual to Harvard's procedure for tenurereview, the process begins at the departmentallevel with an "executive committee" of tenuredfaculty.

These professors compile a list of possiblecandidates for promotion and then send out a"blind letter" to colleagues worldwide, requestingfeedback on the merits of those underconsideration.

On the basis of responses to the blind letterand personal opinions about the candidates, thedepartment then votes to endorse one of them forfurther tenure consideration.

According to a number of government professors,Berkowitz was endorsed by a majority of thedepartment. He was not, however, endorsedunanimously.

At this stage, the tenure decision moves to thedean's office: "The dean and his principalacademic advisors study the candidate's file,"Rosovsky explains.

When the file has been approved, a tenuredFaculty member appointed by the dean of theFaculty convenes an ad hoc committee of fivescholars to consider the candidate. Theseacademics meet with the president to consider anappointment, and they hear testimony about thecandidate from both friendly and hostilewitnesses.

According to Rosovsky, although the invitationssent out to prospective ad hoc committeemembers--three experts in the candidate's fieldfrom outside the University and two generalistsfrom Harvard--bear the president's name, thepresident is not really involved in theirselection.

"It would be very rare for the president tomake any changes in the list of those invited toserve on the ad hoc committee," Rosovsky said.

But Jeffrey Hazard, a professor at theUniversity of Pennsylvania's law school and aspecialist in ethics, expressed a different senseof who is responsible for committee'sconstitution.

Hazard, who has served on a Harvard ad hoccommittee, said they "are convened by PresidentRudenstine, and he can invite whomever he wants."

Professor of Anthropology Peter T. Ellison, whowas in 1997 one of two associate deans appointedby Dean of the Faculty Jeremy R. Knowles toconvene ad hoc tenure committees, was responsiblefor Berkowitz's committee. Ellison refused tocomment for this article; his choice of scholarsis one of Berkowitz's grievances.

Though Rosovsky writes, "the composition of thecommittee, and especially the choice of outsiders,can affect the outcome" of a tenure review, theformer dean also states that it is the presidentwho has final authority.

"De facto, the final decision rests with thepresident," Rosovsky writes.

Berkowitz's ad hoc committee included LeonKass, an ethics and biology expert from theUniversity of Chicago; University of Pennsylvaniapolitical scientist Ellen Kennedy; and IsaacKramnick from Cornell University's politicalscience department. The Harvard members of thecommittee were Starch Professor of PsychologyJerome Kagan and Professor of German Maria M.Tatar.

According to several sources, four of the fivecommittee members advised Rudenstine not to grantBerkowitz tenure.

The Tenure Appeal

Berkowitz said he plans to allege Harvardviolated its own standards for tenure review inthe course of deliberations over his promotion.

"In this appeal we ask Harvard to respect itsprocedures and honor the worthy principlesembodied in them," Berkowitz said.

He stressed that his complaint does notconstitute a character assassination on any of theprincipals in his case, but his grievance dwellson the role of Professor of Government andAssociate Provost Dennis F. Thompson in thedeliberations over his appointment.

In an article that ran in the Nov. 26, 1996,issue of the New Republic, Berkowitz had harshlycriticized a book Thompson co-authored. Thereview, titled "The Debating Society," was part ofBerkowitz's dossier considered by the ad hoccommittee.

Berkowitz's complaint about the composition ofthe ad hoc committee centers on the fact that onlyone of its members was on an original list ofrecommended scholars submitted by the governmentdepartment when it endorsed Berkowitz for tenure.

The dean's office is under no compulsion toadhere to departmental suggestions in appointingcommittee members. But the University's"Guidelines for Tenure Review" stipulate that thead hoc committee should be composed of "the ablestpeople" who will ensure that "nominees are judgedstrictly on their merits."

In his appeal, Berkowitz states that Kennedy,Kramnick and Kagan do not possess relevantexpertise in his field. He also suggests that themajority of the committee would have been inclinedto rule against him because of ideologicaldifferences, and so the membership failed toexhibit diversity of opinion.

None of the five panelists was willing tocomment for this article.

But Professor of Law Richard D. Parker, anexpert in procedural ethics, expressed hisconcerns about the composition of the deliberativeteam.

"It strikes me as a strange committee at bestand probably unfair," he said.

Rosovsky outlines the goal of the ad hoc stagein his book, writing that the body is convened "togive the president the most neutral advicepossible, unaffected by local friendships orprejudices."

Mansfield explained that "at different stagesof consideration, outside advisors are brought into give their opinions," as a way of reducing"biases to a minimum."

Mansfield said that in the Berkowitz case, thesystem broke down because partisanship infiltratedthe deliberative process.

The ad hoc committee does not have a monopolyon influencing the ultimate decision-maker,Rudenstine. Specifically, Mansfield said, "thosein the chain of command" are in a position toaffect the president's tenure verdicts.

According to Mansfield, this reality can work"either for good or for ill."

He offered that in spite of the potentialpitfalls of the current tenure review process, he"wouldn't want a system of officials who werenever in a position to take informal advice."

Berkowitz's second major complaint, however,relates to the possibility that back-channelinfluence corrupted the process of his tenurereview.

Because Thompson has a part-time administrativerole in the provost's office, Berkowitz said hisparticipation introduced "the power and theprestige of a high University official" intodiscussions at the departmental level.

Thompson rejected any suggestion that hisstatus as a University official inflates hisinfluence with other faculty members.

"It is false and insulting to suggest that mycolleagues in the government department woulddefer to me or anybody else in that way," Thompsonsaid. "Tenured faculty don't bow to anyone."

Berkowitz also said Thompson could have undulyaffected Rudenstine--beyond asserting his opinionas a government professor--because his duties asassociate provost include advising the presidenton curricular matters.

Thompson insisted, however, that his role indeliberations over granting Berkowitz tenure didnot extend beyond the government department. Hedid not appear before the ad hoc committee, as hewas out of town on the day it met.

"I participated in the department as I normallydo, and I didn't play any role after thedepartment," Thompson said.

But according to Rosovsky, every tenuredFaculty member in the department of a candidatefor tenure is obliged to send a confidentialletter to the ad hoc committee explaining his orher vote at the departmental level.

Although he was under no compulsion topublicize his opinion, Thompson sent Berkowitz aletter explaining why he voted against him at thedepartmental level. The letter, which was markedconfidential, entered the public domain when itwas exhibited in Nesson's "Evidence" course.

Several of Thompson's colleagues were willingto assert--not for attribution--that his negativeassessment had nothing to do with Berkowitz'scritical book review.

"One can only hope that those who are givenhigh-level decision-making authority know theperils involved and avoid the temptation to letother aspects of their jobs, or personalconsiderations, influence the decisions theytake," said Wells Professor of Political EconomyJerry R. Green, a former Harvard provost.

Green said when he was provost, he recusedhimself from tenure reviews involving candidatesfrom his own economics department.

"Even if I agreed with the majority in mydepartment, as I probably would have," he said,"there would be a perception that Ihad...[exercised disproportionate] influence."

In addition to the allegations about theimmoderate extent of Thompson's departmental andofficial influence, Berkowitz states in hisgrievance that Thompson's status as the husband ofCarol Thompson, associate dean for academicaffairs, constitutes a further invitation toimpropriety.

Berkowitz sets forth in his grievance hisconcern that because Dennis Thompson is a memberof the central administration and Carol Thompsonserves in the dean's office, he might beconsidered her superior within the administration.

Carol Thompson, however, denied in an interviewwith The Crimson both of Berkowitz's charges.

She said that although in her capacity asassociate dean she would normally be part of thegroup that reviews departmental blind letters andcandidate dossiers before they are submitted to adhoc committees, she "wasn't involved at all in thereview of the Berkowitz recommendation [from thegovernment department]."

"I just felt it was my husband's own field, andI shouldn't be involved," Thompson said.

To Berkowitz's assertion about the improprietyof her husband's potentially serving as hersuperior, Thompson offered an equally succinctresponse.

"None of his functions in any way relate to myjob," she said.

Berkowitz's Future

Many University faculty and administrators wereunwilling to comment on Berkowitz's case--not onlybecause it is confidential, but also because theysaid did not want to divulge the reasons for histenure denial.

One high-ranking official expressed concernthat Berkowitz "has become obsessed with this[case]" and is "discrediting himself" by harpingon the Harvard setback rather than moving on toanother institution.

Others, including students in Nesson's"Evidence" course, said they believed the lawprofessor's involvement in the case has turned itinto a media spectacle.

"Your apparent enthusiasm for structural changein Harvard's tenure review process is at odds withBerkowitz's goal," one student addressed Nesson ina posting on the course Web site.

Feinberg said Nesson had both his own andBerkowitz's permission to use the case in hisclass because he said he thinks the case haddidactic potential.

But another University source said he believes"Berkowitz might have been encouraged by ProfessorNesson, who's enjoying this."

"Charlie has tenure," the source added. "I wishhe would consider the reputation and future of theyoung person he's supposed to be helping."

Most people close to the case were veryskeptical about Berkowitz's chances for winning anew tenure hearing.

Mansfield said the appeal procedure "is rarelyinvoked" and that "essentially the president hasthe last word."

Rosovsky echoed this sentiment, acknowledgingthat "at some point, there is no more appeal."

"In our system, the president is the finalauthority even though technically, one can appealto the governing board and the overseers,"Rosovsky said.

"If the docket committee decides it was unfair,what then?" asked the highranking administrator,seemingly exacerbated with talk of Berkowitz'sappeal.

"If the grievance committee decides there wasbias, what then?" he added. "If you disagree witha decision of the Supreme Court, what do you do?

Berkowitz had been teaching at Harvard for sixyears, the standard term before a junior professoris considered for tenure.

According to Rosovsky, who devoted a chapter ofhis 1990 book The University: An Owner'sManual to Harvard's procedure for tenurereview, the process begins at the departmentallevel with an "executive committee" of tenuredfaculty.

These professors compile a list of possiblecandidates for promotion and then send out a"blind letter" to colleagues worldwide, requestingfeedback on the merits of those underconsideration.

On the basis of responses to the blind letterand personal opinions about the candidates, thedepartment then votes to endorse one of them forfurther tenure consideration.

According to a number of government professors,Berkowitz was endorsed by a majority of thedepartment. He was not, however, endorsedunanimously.

At this stage, the tenure decision moves to thedean's office: "The dean and his principalacademic advisors study the candidate's file,"Rosovsky explains.

When the file has been approved, a tenuredFaculty member appointed by the dean of theFaculty convenes an ad hoc committee of fivescholars to consider the candidate. Theseacademics meet with the president to consider anappointment, and they hear testimony about thecandidate from both friendly and hostilewitnesses.

According to Rosovsky, although the invitationssent out to prospective ad hoc committeemembers--three experts in the candidate's fieldfrom outside the University and two generalistsfrom Harvard--bear the president's name, thepresident is not really involved in theirselection.

"It would be very rare for the president tomake any changes in the list of those invited toserve on the ad hoc committee," Rosovsky said.

But Jeffrey Hazard, a professor at theUniversity of Pennsylvania's law school and aspecialist in ethics, expressed a different senseof who is responsible for committee'sconstitution.

Hazard, who has served on a Harvard ad hoccommittee, said they "are convened by PresidentRudenstine, and he can invite whomever he wants."

Professor of Anthropology Peter T. Ellison, whowas in 1997 one of two associate deans appointedby Dean of the Faculty Jeremy R. Knowles toconvene ad hoc tenure committees, was responsiblefor Berkowitz's committee. Ellison refused tocomment for this article; his choice of scholarsis one of Berkowitz's grievances.

Though Rosovsky writes, "the composition of thecommittee, and especially the choice of outsiders,can affect the outcome" of a tenure review, theformer dean also states that it is the presidentwho has final authority.

"De facto, the final decision rests with thepresident," Rosovsky writes.

Berkowitz's ad hoc committee included LeonKass, an ethics and biology expert from theUniversity of Chicago; University of Pennsylvaniapolitical scientist Ellen Kennedy; and IsaacKramnick from Cornell University's politicalscience department. The Harvard members of thecommittee were Starch Professor of PsychologyJerome Kagan and Professor of German Maria M.Tatar.

According to several sources, four of the fivecommittee members advised Rudenstine not to grantBerkowitz tenure.

The Tenure Appeal

Berkowitz said he plans to allege Harvardviolated its own standards for tenure review inthe course of deliberations over his promotion.

"In this appeal we ask Harvard to respect itsprocedures and honor the worthy principlesembodied in them," Berkowitz said.

He stressed that his complaint does notconstitute a character assassination on any of theprincipals in his case, but his grievance dwellson the role of Professor of Government andAssociate Provost Dennis F. Thompson in thedeliberations over his appointment.

In an article that ran in the Nov. 26, 1996,issue of the New Republic, Berkowitz had harshlycriticized a book Thompson co-authored. Thereview, titled "The Debating Society," was part ofBerkowitz's dossier considered by the ad hoccommittee.

Berkowitz's complaint about the composition ofthe ad hoc committee centers on the fact that onlyone of its members was on an original list ofrecommended scholars submitted by the governmentdepartment when it endorsed Berkowitz for tenure.

The dean's office is under no compulsion toadhere to departmental suggestions in appointingcommittee members. But the University's"Guidelines for Tenure Review" stipulate that thead hoc committee should be composed of "the ablestpeople" who will ensure that "nominees are judgedstrictly on their merits."

In his appeal, Berkowitz states that Kennedy,Kramnick and Kagan do not possess relevantexpertise in his field. He also suggests that themajority of the committee would have been inclinedto rule against him because of ideologicaldifferences, and so the membership failed toexhibit diversity of opinion.

None of the five panelists was willing tocomment for this article.

But Professor of Law Richard D. Parker, anexpert in procedural ethics, expressed hisconcerns about the composition of the deliberativeteam.

"It strikes me as a strange committee at bestand probably unfair," he said.

Rosovsky outlines the goal of the ad hoc stagein his book, writing that the body is convened "togive the president the most neutral advicepossible, unaffected by local friendships orprejudices."

Mansfield explained that "at different stagesof consideration, outside advisors are brought into give their opinions," as a way of reducing"biases to a minimum."

Mansfield said that in the Berkowitz case, thesystem broke down because partisanship infiltratedthe deliberative process.

The ad hoc committee does not have a monopolyon influencing the ultimate decision-maker,Rudenstine. Specifically, Mansfield said, "thosein the chain of command" are in a position toaffect the president's tenure verdicts.

According to Mansfield, this reality can work"either for good or for ill."

He offered that in spite of the potentialpitfalls of the current tenure review process, he"wouldn't want a system of officials who werenever in a position to take informal advice."

Berkowitz's second major complaint, however,relates to the possibility that back-channelinfluence corrupted the process of his tenurereview.

Because Thompson has a part-time administrativerole in the provost's office, Berkowitz said hisparticipation introduced "the power and theprestige of a high University official" intodiscussions at the departmental level.

Thompson rejected any suggestion that hisstatus as a University official inflates hisinfluence with other faculty members.

"It is false and insulting to suggest that mycolleagues in the government department woulddefer to me or anybody else in that way," Thompsonsaid. "Tenured faculty don't bow to anyone."

Berkowitz also said Thompson could have undulyaffected Rudenstine--beyond asserting his opinionas a government professor--because his duties asassociate provost include advising the presidenton curricular matters.

Thompson insisted, however, that his role indeliberations over granting Berkowitz tenure didnot extend beyond the government department. Hedid not appear before the ad hoc committee, as hewas out of town on the day it met.

"I participated in the department as I normallydo, and I didn't play any role after thedepartment," Thompson said.

But according to Rosovsky, every tenuredFaculty member in the department of a candidatefor tenure is obliged to send a confidentialletter to the ad hoc committee explaining his orher vote at the departmental level.

Although he was under no compulsion topublicize his opinion, Thompson sent Berkowitz aletter explaining why he voted against him at thedepartmental level. The letter, which was markedconfidential, entered the public domain when itwas exhibited in Nesson's "Evidence" course.

Several of Thompson's colleagues were willingto assert--not for attribution--that his negativeassessment had nothing to do with Berkowitz'scritical book review.

"One can only hope that those who are givenhigh-level decision-making authority know theperils involved and avoid the temptation to letother aspects of their jobs, or personalconsiderations, influence the decisions theytake," said Wells Professor of Political EconomyJerry R. Green, a former Harvard provost.

Green said when he was provost, he recusedhimself from tenure reviews involving candidatesfrom his own economics department.

"Even if I agreed with the majority in mydepartment, as I probably would have," he said,"there would be a perception that Ihad...[exercised disproportionate] influence."

In addition to the allegations about theimmoderate extent of Thompson's departmental andofficial influence, Berkowitz states in hisgrievance that Thompson's status as the husband ofCarol Thompson, associate dean for academicaffairs, constitutes a further invitation toimpropriety.

Berkowitz sets forth in his grievance hisconcern that because Dennis Thompson is a memberof the central administration and Carol Thompsonserves in the dean's office, he might beconsidered her superior within the administration.

Carol Thompson, however, denied in an interviewwith The Crimson both of Berkowitz's charges.

She said that although in her capacity asassociate dean she would normally be part of thegroup that reviews departmental blind letters andcandidate dossiers before they are submitted to adhoc committees, she "wasn't involved at all in thereview of the Berkowitz recommendation [from thegovernment department]."

"I just felt it was my husband's own field, andI shouldn't be involved," Thompson said.

To Berkowitz's assertion about the improprietyof her husband's potentially serving as hersuperior, Thompson offered an equally succinctresponse.

"None of his functions in any way relate to myjob," she said.

Berkowitz's Future

Many University faculty and administrators wereunwilling to comment on Berkowitz's case--not onlybecause it is confidential, but also because theysaid did not want to divulge the reasons for histenure denial.

One high-ranking official expressed concernthat Berkowitz "has become obsessed with this[case]" and is "discrediting himself" by harpingon the Harvard setback rather than moving on toanother institution.

Others, including students in Nesson's"Evidence" course, said they believed the lawprofessor's involvement in the case has turned itinto a media spectacle.

"Your apparent enthusiasm for structural changein Harvard's tenure review process is at odds withBerkowitz's goal," one student addressed Nesson ina posting on the course Web site.

Feinberg said Nesson had both his own andBerkowitz's permission to use the case in hisclass because he said he thinks the case haddidactic potential.

But another University source said he believes"Berkowitz might have been encouraged by ProfessorNesson, who's enjoying this."

"Charlie has tenure," the source added. "I wishhe would consider the reputation and future of theyoung person he's supposed to be helping."

Most people close to the case were veryskeptical about Berkowitz's chances for winning anew tenure hearing.

Mansfield said the appeal procedure "is rarelyinvoked" and that "essentially the president hasthe last word."

Rosovsky echoed this sentiment, acknowledgingthat "at some point, there is no more appeal."

"In our system, the president is the finalauthority even though technically, one can appealto the governing board and the overseers,"Rosovsky said.

"If the docket committee decides it was unfair,what then?" asked the highranking administrator,seemingly exacerbated with talk of Berkowitz'sappeal.

"If the grievance committee decides there wasbias, what then?" he added. "If you disagree witha decision of the Supreme Court, what do you do?