Tenure in the Courts

It is referred to, by those who watch such things, as the $1 million decision-whether to grant tenure to an academic notable. But tenure, obviously, is more than just another thing for the book keepers to worry about. Inevitably, decisions on who will teach and who will not affect the very prestige and direction of an academic institution.

Considering what's at stake, then, it's not surprising that Harvard has evolved elaborate mechanisms for making sure it tenures the right people.

For the most part, the particulars of a tenure decision are strictly, a closed-door matter, intensely private and rarely a topic of open conversation. But in the wake of two recent charges of discrimination, outsiders are, for the first time in years, getting a rare close-up look.

"I think it will survive this scrutiny," asserts Phyllis C. Keller, associate dean for academic planning.

But others are not so sure.

Federal District Court Judge Walter J. Skinner '48 appeared positively enthusiastic to try the case of Ephraim Isaacs, a former associate professor of Afro-American Studies who claimed he was denied tenure in 1975 because he is Black and Ethiopian.

In dismissing the case of procedural grounds a week ago Friday, skinner expressed what appeared to be regret: "The substance of plaintiff's case is potentially interesting and for a while it looked as if the chance at least to try the issues on the merits could be preserved."

But if Skinner bent over backward to keep the Isaacs case in the courts. Harvard is bending over backwards to keep another case out of the courts.

Four years ago, the Sociology Department refused to recommend Associate Professor of Sociology Theda R. Skocpol for tenure; Skocpol claimed gender discrimination, and a Harvard grievance committee found merit to her claim.

Now, three years after Skocpol's departure for the University of Chicago--where she recently gained a full professorship--President Bok is assembling an ad hoc committee of scholars to reconsider her tenure. And, according to sources close to the process, the president is stepping very carefully to avoid a lawsuit.

If either of these cases gets to trial on the merits, Harvard is going to have a problem.

Harvard officials maintain that the overall tenure process is no secret, that it is written down in pamphlets and available to all.

Many who criticize the system simply don't know the procedures, they say. In Keller's words, "Misinformation loves to fill a vacuum."

What's not recorded, however, are the specifics of particular cases, and that's going to cause a confidentiality headache for the University.

How much politicking goes into a departmental recommendation? Who picks members of the ad hoc committees that advise Bok on who to choose? Which candidates are set off against each other?

The University needs to maintain secrecy in these matters, officials argue, to avoid hurting candidates' feelings. A person rejected by Harvard should not be subjected to public scorn, they say, and a person who does get tenure should be made to think that the vote was unanimous.

In addition, says Professor of Philosophy Burton S. Dreben '49, the man who organizes the ad hoc committee that review all departmental nominations for tenure, "You're not going to get individual professors from other schools to participate without the promise of secrecy."

Isaacs' lawyers have filed a number of subpoenas to obtain information about these confidential matters.

"You are not able to prove that someone is discriminated against unless you can compare them with other candidates," says Elizabeth Rodgers, Isaacs' chief lawyer.

Harvard's arguments of confidentiality cannot "shield an employer from sitting around in a meeting and saying "We don't want women' or 'We don't want Blacks" 'Rodgers adds. "We think the tenure system should be open to scrutiny by the courts."

Harvard has fought these subpoenas and the reasoning they represent.

The tenure system, officials report, includes a plethora of internal checks and balances designed to insures its fairness. "It's very much like the ideals of the American Constitution. That's the theory to it," says Dreben.

The internal checks include the review of departmental recommendations by top Faculty administrators before they are sent to Bok, who has the final say on all appointments. And, officials say, the Harvard perspective is balanced by the professors and experts from other schools who sit on the ad hoc committees.

Despite appearance, however, that outside scrutiny within the process supposedly guaranteed by the ad hoc groups does not preclude insider politicking.

"Any process that is not very rigid, which would probably be unhealthy, is going to be affected by a certain amount of politics," says Secretary to the Faculty John R. Marquand.

Also, not all department recommendations receive scrutiny. Only the positive recommendations do. If a department gives thumbs down, there are no internal checks or balances.

"How do you review the rest of the world that didn't get an offer?" asks Nathan Glazer, professor of Education and Social Structure, who teaches a course on the sociology of higher education.

"You can't force a department to bring up a name," adds David Riesman, Ford Professor of Social Sciences, Emeritus, who has written extensively on higher education.

So what it comes down to is trust. "How else can you operate?" Dreben implores. "I Fundamentally, if you're asking can you trust a department, the answer is yes."

And the proof, he says, is the fact that Harvard department consistently rate among the best in the country, and have done so for a long period of time.

Other argue, though, that the Harvard Faculty could be even better.

Smith College President Jil Conway, speaking this week at the Cambridge Forum, said that qulaified women are still excluded because of the sexist hiring practices of major universities.

Skocpol echoes this belief, and lays the blame on the secretive tenure process. "It is administratively irresponsible to remain ambiguous on such basic issues as the number and definition of positions, because the whole point is that men and women have a chance to compete equally for the same positions," she says.

Keller, who serves as the Faculty's affirmative action officer, agrees that women are "under-utilized" at Harvard relative to their proportions in the academic community. Her figures show a dozen departments with too few women.

But she also points to the rapid rise of women Ph.D.'s in the last two decades as an explanation. "You can't get representation overnight because you have to have vacancies in the various fields," she says.

In addition, according to Keller, "The departments are required to document the steps they took to identify women and minority group members in the search," and to explain why the best of these candidates were not selected.

If the department has a rational explanation, presumably it won't get in trouble. But, Harvard has learned, it may have to stop presuming.

In the Isaacs case, for instance, the dean of the Faculty expressed a preference for Americanists rather than Africanists in the Afro-American Studies Department. Isaacs, whose field is Ethiopian languages and civilization, was thus excluded.

In the Skocpol case, Bok has decided that Skocpol's field, broadly described as comparative-historical sociology, is no more important than any other field for the Sociology Department.

Skocpol has accordingly been compared on a short list with leading sociologists from a variety of sub-fields. Perhaps, observers say, this has reduced her chances for tenure.

Were there instances of discrimination in either case? The answer may end up being decided in federal court. Also subject to debate there is the notion of the University as a self-regulating institution.

Secrecy at the University, it seems, is fine--if you can trust Harvard's system of internal checks and balances.

The question arises--and there does not appear to be an answer--as to who is better qualified than the University to shape the University's Faculty.

"You have to let those closest to the subject make the decisions," says Dreben.

"If you begin with the view that no system is perfect," Keller adds, "I think this one has done pretty well by us."

Right or not, Harvard may have to let someone else do the judging this time.