The Wrong Questions

PRESIDENT Bok called a seven-hour meeting last week and decided to hand a pink slip to one of his employees. The denial of tenure to Assistant Professor of Law Clare Dalton may present many complicated and controversial issues--about standards for tenure and the direction of legal scholarship--but mostly it was a personal statement on the work of one scholar at one school. A verdict on whether a woman hired nine years ago with the near guarantee of a permanent position had met the standards of Harvard Law School.

Inevitably, administrators make such a personal evaluation in any tenure case--which mixes the political and the personal, ideology with research. This week's action on the Dalton case--which was based on the written opinions of more than a dozen scholars in her specialty, the personal testimony of four Harvard law professors and the critical judgement of five preeminent legal authorities--is no different.

Last week's decision came from on high designed to correct a gnawing controversy--over the legitimacy of Critical Legal Studies (CLS)--among the dwellers of Langdell Hall below. Case closed, controversy ended, next case please.

BUT unfortunately for Bok and company, Dalton is entitled to another hearing--this time before a government court. Dalton will announce today whether or not she will pursue a suit she filed in November against Harvard; if she does, her case will be the second active gender discrimination case based on a University tenure decision. Hardly something any institution would highlight on its resume.

Alas, all of Bok's deliberations will provide scant help during the trial. The president ignored the most important question he was asked to adjudicate: whether the law faculty discriminated against Dalton on the basis of politics and gender.

Such an examination by Bok, however, would have required a look at the quality of the other tenure candidates--male or female--and most taboo of all, an honest appraisal of the ideological battles that have long divided the law faculty. Bok's expertise, as a former law dean and current University president, could have aided in such an effort.

The president, who for better or worse has the ultimate authority over tenure disputes, could have helped forge the way by addressing such relevant policy questions as: Should ideology matter in tenure decisions? Could the Law School have enough scholars in CLS--the radical field of legal thought that has divided the faculty into fueding factions--or should each scholar be evaluated independently? What does it mean that many young scholars choose to employ the analytical tools of CLS in their research, and will the Law School be trapped in the past if it turns its back on CLS? Should tenure-tracked candidates--who until two years ago had been routinely promoted to permanent posts for 17 straight years--be scrutinized more closely, or less?

And there are the specific questions about the Law School and Dalton's case: Has there been an agreement--"horse-trading" in the words of one law professor--to accept alternately left-leaning and right-leaning scholars? Did the fact that Dalton was a woman affect her chances of winning tenure from a faculty that is more than 90 percent male? The facts need to be unearthed before everyone involved can trust the objectivity of promotion decisions.

NO one thinks that a stroke of a president's pen could heal the wounds that have developed at the Law School over the years. But a few choice words from Bok could have dealt realistically with the factors that went into the Dalton decision and spurred a long-overdue faculty discussion on tenure and CLS.

Instead Bok's decision skirted most of the controversy. Rest assured, though, such questions will not be so easily swept under the rug in the court case. As one professor said after Bok's decision was announced. "I would expect a large percentage of the faculty to testify on [Dalton's] behalf against the University, well over 50 percent."

Bok hoped only to examine whether Dalton merited tenure--and he went about composing the most impressive panel of legal scholars he could think of to do the job. Ultimately this method of review begs the question. As an assistant professor requesting a promotion after nine years of service, Dalton didn't ask that the most prestigious panel be convened to judge her work, only that she be treated by the same standards of scrutiny that all other candidates received.

And as Professor of Law David Kennedy observed. "The case is over. It was over last spring as far as the faculty was concerned. But the issue of discrimination for students and faculty members is as live as it ever was."

Bok's panel didn't deal with discrimination on the faculty, the only question in Dalton's case that really matters. As an employer of thousands, when Bok enters a name on a pink slip, he might as well be sure it's the right one.