Harvard Argues For Dismissal Of Tenure Case

Lawyers claim University’s tenure process should be secret

BOSTON—Harvard made one last effort to keep its tenure process secret yesterday, arguing before a Massachusetts state appeals court that the tenure lawsuit of former Assistant Professor of Government Peter Berkowitz should be dismissed.

Berkowitz, who was denied tenure in 1997, is suing the University for breach of contract.

Yesterday’s hearing at the Suffolk County Courthouse was the result of an appeal filed by Harvard in February 2001 to prevent Berkowitz’s suit from reaching the “discovery of evidence” phase.

That phase would allow Berkowitz to demand confidential documents and correspondence from his tenure review, bringing to light aspects of Harvard’s tenure process that have never before been made public.

That was a frightening possibility for the University, said Boston attorney Harvey A. Silverglate, who co-founded the Foundation for Individual Rights in Education and has long taken interest in Harvard’s internal politics.

“Any trial which threatens to take the veil off [the tenure] process would probably be very damaging to Harvard’s credibility,” Silverglate said.

But the discovery phase—and the entire civil suit—is on hold pending the appellate court ruling.

Yesterday, both parties presented their cases to the appellate court’s three-judge panel.

Attorneys for Harvard argued that the court should stick to its tradition of not interfering in the academic affairs of universities.

“This case is at the far academic end of the spectrum where the degree of reluctance [by the court to interfere] should be at its highest,” said Harvard’s attorney G. Marshall Moriarty.

Berkowitz’s lawyer, however, urged the judges to enforce state contract law.

“It is equally clear that where Harvard has chosen to enter into contract, that contract is subject to court intervention even if that means the court must intervene in academic affairs,” said David A. Handzo, an attorney for Berkowitz.

The proceedings took less than an hour.

Handzo said he expected the court would deliver its ruling in about four months.

Berkowitz appeared upbeat after yesterday’s proceedings.

“I’m hoping for the best out of this lawsuit,” he said.

Berkowitz is currently an associate professor of law at George Mason University Law School. He also serves as a fellow at Stanford University’s Hoover Institution and directs a program on constitutional government in Israel.

A Five-Year Battle

Yesterday was the latest development in what has been a five-year standoff between Berkowitz and the University.

Berkowitz alleges shortly after he was denied tenure in April 1997, he learned of improprieties in the composition and actions of the official University committee that reviewed his case.

The following winter, he began his grievance proceedings, first lodging informal complaints with University and Faculty administrators, then filing a formal grievance with the Faculty of Arts and Sciences.

The Docket Committee, which normally tends to minor administrative duties, found Berkowitz’s claim “clearly without merit”—closing off any further options for appeal.

But Berkowitz claims the Docket Committee overstepped its mandate, calling witnesses and essentially launching an investigation when it was only charged with deciding whether Berkowitz’s grievance warranted further examination.

That alleged misconduct forms the basis of Berkowitz’s original suit, which he filed in spring 2000.

Silverglate said Berkowitz stands a good chance of winning his trial.

“He has focused this very narrowly as a contract dispute between him and Harvard in a way that does not attempt to compromise Harvard’s academic freedom,” Silverglate said.

But the University’s attorneys expressed confidence in the strength of their arguments yesterday.

“We think we have a compelling argument about why this case is without merit legally,” said University spokesperson Joe Wrinn.

If Harvard does, however, lose its appeal, the University’s attorney say it will grant Berkowitz’s initial request—that the Faculty form an ad hoc committee to fully investigate his tenure proceedings.

“The cost of going forward with litigation is not worth the battle and could potentially require us to produce confidential tenure documents,” Deputy General Counsel Robert W. Iuliano said last year.

Wrinn confirmed yesterday that the University still plans to follow that plan.

—Staff writer Kate L. Rakoczy can be reached at rakoczy@fas.harvard.edu.