Trying to Fight Mass Hall

After an eight-year legal odyssey that has witnessed motions and counter-motions, destroyed documents and heated pre-trial debate, the case of Barbara Bund Jackson '66 vs. Harvard University reached the courtroom this spring.

The former Business School associate professor charges that she was denied tenure on the basis of her sex and that Harvard unfairly changed it standards for her promotion review. Harvard's legal team, led by Allan A. Ryan, said Jackson's scholarship simply did not meet the school's standards.

The judge in the Jackson suit, Douglas P. Woodlock, hasn't yet ruled on the merits of the case--the first such tenure suit against the University to come to trial. But Jackson, after eight years, still insists that she is glad she took Harvard to court and that tenure discrimination suits can be decided in the courts.

Would she do it again? "Yes, absolutely," said Jackson. "I know I'm right--I know it better than I did when I started it." Nonetheless, Jackson acknowledges that the decision to sue is a difficult one--Harvard, as she has learned, is a tough legal adversary.

"The fact that it's Harvard makes you think not just twice but three or four or five times. They have the resources--they are very rich and very arrogant," Jackson said.

Jackson's experience, combined with other highly-publicized discrimination suits against the University in recent years, may prove a model for helping women decide in the future whether to take their disputes with Harvard into the legal arena.

Clare Dalton, the former assistant professor at the Law School who was denied tenure by the law faculty and unsucessfully appealed that decision to President Bok, is currently weighing the merits of continuing a legal suit she filed last November. Her lawyer, Nancy Gertner, said the two will decide whether to pursue the law suit sometime this summer.

Such considerations are clearly difficult--the question is, as Jackson said, "Do I want to improve Harvard at the expense of my stomach lining?"

When asked what she would advise Dalton, Jackson said, "It has to be done on a person-by-person basis. It's not a fun thing to do--it's a very lonely thing to do. Harvard is big and powerful, and in my mind, it fights very unethically."

Dalton's lawyer, Gertner, said if it were up to her the law professor's case would be in court immediately. But Dalton, who was unavailable for comment, has to face the possibilities of a long and draining legal battle against Harvard that could, as in Jackson's case, take nearly a decade to resolve.

Professor of Sociology Theda R. Skocpol--who was initially denied tenure but was reinstated after she and her lawyer, Gertner, went through Harvard's internal grievance procedures--said "there are no holds barred" when a tenure discrimination case comes to court. She said that in a trial setting, the University will use all of its resourses to win the case.

Gertner cautions that the hardest choice when suing Harvard is to decide whether to file in state or federal court. "The federal bench has a large number of Harvard graduates," Gertner said. "What will someone educated at Harvard Law School and Harvard College feel about this case? You need to take that into account."

The impending Dalton decision on whether to sue and the Jackson case come at a time when other universities are facing more discrimination suits, Gertner said. She said the suits are the product of the decreasing number of senior-level openings for the women and minorities hired after the first wave of anti-discrimination hiring laws.

"There is a plethora of discrimination cases at this point in our history," Gertner said. "There have been revolving door accusations at most major universities."

And she adds that universities are likely to fight harder against charges of bias "because the accusation of discrimination is directly counter to what most universities stand for, and no university takes it lying down."

But Ryan, Harvard's lawyer in the Jackson case as well as a number of other University discrimination cases, said that Harvard considers such complaints very carefully and that they are resolved internally if they are found to have merit.

"Harvard looks at all these cases very carefully before they get into court," Ryan said. "Any employee gets a very close look within Harvard, and if there's merit to it, it's taken care of."

Discrimination can be particularly hard to prove in a legal sense because of the subtleties involved, Skocpol observed. "A lot of what happens in these situations are not even things people are conscious of doing, which is why a legal forum is not really a very sensitive place to deal with discrimination," said Skocpol, whose dispute with the University began when she was initially denied tenure in 1980.

Ryan disagrees: "Discrimination can be subtle, surely, but there's a difference between being subtle and being unreal. And that's where the courts draw the line."