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Bok Rejects Dalton Tenure Appeal

By Emily M. Bernstein

President Bok announced yesterday that he did not grant tenure to Assistant Professor of Law Clare Dalton, who charged that she was discriminated against by the Law School faculty.

Bok's decision concludes a bitter three-year tenure dispute, which had pitted vocal camps at the Law School against each other and which may now result in a gender discrimination suit against the University.

In making a decision on tenure, Bok consulted with a panel of five prominent legal scholars this Sunday, who "reached a consensus" on the case, according to a memo the president sent to the school's faculty.

"Having reviewed the materials bearing on the appointment, participated in the discussion and considered the views of the committee, I arrived at my decision not to recommend a permanent appointment," Bok wrote in the memo, issued Wednesday.

Bok decided last summer to review Dalton's tenure bid--which received three votes fewer than the necessary two-thirds faculty support--after receiving a letter from 18 faculty members, which charged that the torts expert was discriminated against because of her gender and political views.

Dalton is an adherent of Critical Legal Studies (CLS), a radical school of legal thought which holds that the law is not based on abstract notions of justice, but rather upholds contemporary social and economic conditions.

"I'm very disappointed that President Bok wasn't able to correct the mistake that the faculty made," Dalton said yesterday. "I still feel that, based on the pattern of appointments here in the last few years, my work was tenure-worthy and that there was both political and gender discrimination involved in my tenure being denied."

Dalton's tenure case was delayed first for two years in the spring of 1985 because of insufficient scholarship. When her bid came up again in the spring of 1987, she was denied a lifetime post and became the second assistant professor in 17 years to be denied a promotion.

Dalton said after hearing of the decision that she had not yet decided whether to follow through on a gender discrimination suit she filed against the University in November. "We are considering our options. Obviously litigation remains a strong possibility," she said yesterday.

If Dalton were to continue her case, it would be the second active gender discrimination suit against the University. Former Business School professor Barbara Bund Jackson is currently suing the University on similar gender discrimination charges. A federal judge last week cleared the way for Jackson's tenure suit to go to trial in May.

In his public statement, Bok explained the procedures he used to come to a decision on the Dalton case. The president convened a committee of five prominent legal authorities who met with Bok, Dean of the Law School James Vorenberg '49 and two Harvard law professors for more that seven hours to review Dalton's works

Each of the five members of the committee has extensive ties to Harvard or Yale Law Schools, and all but one are scholars Bok knew from his tenureat Harvard Law School, as a law professor anddean.

The committee examined Dalton's two manuscriptson contract law, criticism from experts andstudent evaluations of the assistant professor'steaching. In addition, four Harvard law professorstestified before the committee, two in favor ofgiving Dalton tenure and two against.

The members of the advisory committee were:Archibald Cox '34, Loeb University ProfessorEmeritus and former solicitor general; Robert E.Keeton, Federal District Judge and former Harvardlaw professor; Anthony T. Kronman, chairman of theYale Law School appointments committee; Ellen A.Peters, Chief Justice of the Connecticut SupremeCourt and former Yale law professor; and Harry H.Wellington, Yale law professor and former Yaledean.

Dalton's lawyer Nancy Gertner yesterday saidshe objected to the composition of the advisory committee.She wrote a letter to Bok in December when heannounced that he would form such a committeeasking him to ensure that certain groups, such aswomen and adherents of CLS, would be represented.

"There was no one even conversant with CriticalLegal Studies on the ad hoc committee," she said.

Peters was the only member of the committee whocommented on the case. In a public statement thejudge said that she had recommended to Bok thatDalton not be reinstated to the faculty.

Peters refused to elaborate on her comments.Cox refused any comment. The other three committeemembers could not be reached yesterday.

In explaining the purpose of the committeereview, Bok said he thought the role of an outsideexamination is to assess academic merit, as if thecase had never been considered. "The committeeconducted its deliberations, and I arrived at mydecision without regard to the faculty vote oflast spring," he wrote in a press statement.

According to Dalton supporters, Bok's decisionto conduct the review in this way has left claimsof discrimination--which prompted the request fora review--unaddressed.

Law School Dean James Vorenberg '49 saidyesterday that Bok had made clear that he woulduse his review to determine whether Daltondeserved to receive tenure, not whether the LawSchool tenure process is flawed.

But Dalton's lawyer Nancy Gertner said that thedistinction between the two roles is an artificialone. "We're not talking about intergalacticstandards for tenure. We're asking 'Did she meetthe standards for tenure at Harvard Law School inthat year?'" Gertner said.

"Whether Clare Dalton deserved tenure isinextricably intertwined with what standards hadbeen imposed on men," she said. "It's impossibleto consider the question without looking at thediscrimination question."

The allegations of discrimination andpolitically-biased tenure votes in Dalton's caserepresent the latest in a series of politicalbattles between adherent of CLS and theiropponents, which have been fought in the tenurearena.

The other assistant professor to be deniedtenure in recent memory, Daniel K. Tarullo, andthe two visiting professors who have been deniedtenure in the past three years have all beenadherents of CLS.

The latest of the visiting professors,Wisconsin Law School Professor David Trubek, wasgranted tenure by the faculty last spring, but hisappointment was reversed by Bok after a minorityof opponents charged that the scholar was tenuredfor political reasons. The decision representedthe first time that a president had reversed thevote of the law faculty in recent memory.

Bok's decision to intervene in Trubek's casewas the first implementation of a policy,announced in 1985, that called for the presidentto intervene in Law School tenure cases if therewere charges of polical bias.

Opponents of CLS used this policy successfullyto convince Bok to review the Trubek case, andsupporters of the movement used the same tactic toask for Bok's second look at the Dalton case.

Dalton is scheduled to teach at NortheasternLaw School in Boston in the fall, where she wasoffered a position this fall pending the result ofBok's review.Law School Dean JAMES VORENBERG '49.

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