Berkowitz v. Harvard

Remember Bonnie Honig? She was the associate professor of government who's tenure denial last spring by President Neil L. Rudenstine created a furious uproar among female faculty members calling into question his commitment to diversity. It turns out that Honig, who has since become a tenured professor at Northwestern, was only half the story of that season of academic politics--the half that got reported.

Now, the case of Peter Berkowitz, also an associate professor of government denied tenure by the President last spring, is coming to light. And the forum is a most unexpected one: the Ames Courtroom at the Law School's Austin Hall. Berkowitz's tenure episode is one of two "cases" being played out before the intrigued Winter Evidence class of Weld Professor of Law Charles R. Nesson '60, who also serves as one of Berkowitz's lawyers in the matter.

The cases of Berkowitz and Honig were, in a matter of historical irony, inextricably intertwined. Both are political theorists: he is a Straussian, she a post-modernist. And by the fall of 1996 both had been teaching at Harvard for six years, the time when junior Faculty come up for tenure. Tenure, of course, is and never should be expected at a University where the official employment standard is "the best in the world." But a confluence of events--including the government department's approval of both candidates for tenured professorships at the same meeting--raised questions about why they were turned down at the presidential level.

The President is obligated to approve all tenured positions at the University. In order to do so he, through Dean of the Faculty Jeremy R. Knowles, requests letters from all senior Faculty in the candidate's departments and convenes an adhoc committee of "experts" from in and outside Harvard. Either or both of these factors were responsible for the President's actions last spring. In the Honig case, a letter from 15 female faculty members, including the government department's sole female political theorist Professor of Government Seyla Benhabib, raised questions as to the unduly critical nature of both the letter solicitations and the ad-hoc process. Now, Berkowitz is making many similar allegations in his own case.

In a letter to the recently formed Joint Committee on Appointments, which consists of the President and Provost, members of the Corporation and the Board of Overseers, Berkowitz alleges, through his lawyer Mathew H. Feinberg, that "The procedures applied at the Ad Hoc and Presidential Review violated fundamental due process and require your careful scrutiny." More specificially, Feinberg writes in the Dec. 5 letter, "Five of the six experts selected as Ad Hoc Committee members were not on the offical slate the Department [of Government] submitted to the Dean [of FAS Knowles]; all five 'new' members were people who were antipathetic to the published views of Professor Berkowitz, a fact that was known or should have been known to those selecting them; and some of the 'new' experts/panelists were of an age and academic station that should have disqualified them as competitors for the position Professor Berkowitz sought or at least presented the appearance of a conflict of interest in that regard."

In a Dec. 29 response to Feinberg, University General Counsel Anne Taylor writes, "I can find no evidence to support your allegation that Professor Berkowitz was denied due process in any aspect of the process; hence, I have no basis for recommending to the Joint Appointments Committee that the matter be reconsidered." Like the fine piece of litigation that it is, her rebuttal consists of a good dose of semantics("the Department submits no official slate of members," italics added) and denial ("I could find no evidence to support your assertion that...committee members were known to be antipathetic to Professor Berkowitz's published work.") But as the letter serves as the official legal response from the University in a case that may very well lead to a lawsuit seeking damages, it is not meant to be taken at face value; rather it is the defensive reply to an opening blast. When the lawyer Feinberg visited Nesson's class to discuss the potentials of the Berkowitz case, he intoned to this writer, "It hasn't even started."

What, then, do we know about the Berkowitz tenure denial in dealing with a University which (honorably) forbids its employees from discussion details of the case? This is one among many questions which Nesson has assigned to his Evidence class as homework, the sum of which is reaching a conclusion--as lawyers in training--as to the degree of proof they would need to act on behalf of a client, whether that action is writing a letter for your client (as Finberg has done), making an allegation, surviving a motion to dismiss in court or winning a law suit. Since Nesson's class is about the Laws of Evidence (federally-mandated regulations governing how courts may proceed, a.k.a. the basis for attorneys' cries of "objection"), the question then becomes, "What can we prove?"

Nesson encourages his class to formulate a possible or likely scenario in order to proceed with questions of the relevance of certain evidence. The available evidence so far consists of the two letters mentioned above(which can be found on the Web at the course's home page, http://cyber.harvard.edu/eon/evidence) and Berkowitz's testimony before the class. From this evidence--and, since Nesson seems to be sharing all his insights with the class, this alone--Nesson has posited three scenarios of what happened in the Berkowitz tenure denial:

* "A deal was made in the government department a year before the Berkowitz/Honig decision for two [other] people--a liberal and a conservative. It went to the ad hoc committee, and the deal went through. [At the time of the Berkowitz/Honig tenure decisions, which also were approved together], the President decides 'No more deals."

."Bonnie Honig has deep enemies. She is the focal point. She had her enemies and they took her down, and having done so, they don't have the political clout to push a conservative [Berkowitz] through."

."Peter [Berkowitz] is the one and, pricking the balloon, he goes down and she has to go down in his wake....Politics won't permit otherwise."

There are no obvious answers in this case, but there are a host of allegations and a great deal of what lawyers might term circumstantial evidence floating around Nesson's Law School classroom. Nesson is the first to admit the ambiguity of the evidence without appropriate knowledge of the other side of the story. He publicly questions whether he can believe Berkowitz and emphasizes the need to talk to others for fear of violating somethings called Rule 11, which calls on lawyers to conduct a reasonable inquiry into the facts of a case before submitting papers to a court. In order to get to the other side of the story, one has to understand exactly who or what that side is.

It turns out that the Berkowitz camp has pinned the tenure denial on an abandonment of procuedure at the hands of Whitehead Professor Dennis F. Thompson, another of the government department's five political theorists, who is also the director of the Program in Ethics and the Professions. Though Thompson's name does not appear on Feinberg's letter to the joint Committee, and though no members of the Berkowitz camp explicitly stated that Thompson sabotaged the appointment, there was no question to any member of the audience in Nesson's class about the implication.

Nesson summarized the above-mentioned letter to the Joint Committee, which fails to mention Thompson, as follows: "One: Dennis Thompson is sufficiently antagonistic to Peter [Berkowitz] that he formally declared himself not to be a witness in the process, yet he had a deep influence on the outcome. Two: the President should have known that it was a conflict. The ad hoc process at Harvard was rigged to be a hanging jury. Three: Dennis Thompson has a great influence as a friend of Neil Rudenstine. His wife, Carol, works in the office that puts as hoc panels together." Carol J. Thompson, associate dean of FAS for academic affairs, is one of the academic deans who participates in the tenure process, but the assertion that she was involved in putting this panel together is under dispute.

Why would Thompson possibly have an animus against Berkowitz? The embattled Berkowitz related a story of the critical review he published of a Thompson book in The New Republic on Nov. 25, 1996, just around the time the tenure deliberations in the government department began. Interestingly, the book in question, which was co-written with the liberal theorist Amy Gutmann '71 was called Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided in Politics, and What Should be Done About It. The book argues that democratic societies should engage in substantive deliberation over serious moral issues in order to achieve "mutually acceptable" conclusions. Berkowitz deconstructs not just this linguistic dodge, but also the authors' liberal assumptions which do not contest the principles of natural liberty and equality and therefore theoretically limit the sphere of deliberative democracy to second-generation questions.

What is captivating here is that Berkowitz wrote the review just before he went up for tenure in the government department, one of whose voting members in Thompson. Berkowitz explained his actions in Nesson's class as follows. Leon Wieseltier, the literary editor of The New Republic, suggested Berkowitz review the Thompson book after a prior Berkowitz review explored issues surrounding Alexis de Tocqueville, religion and civil society. Berkowitz had two (soundly politic) qualms--that Thompson is a colleague and that his own tenure review process was underway. After calling Martin H. Peretz, lecturer on Social Studies and owner of The New Republic, for advice, Berkowitz came to the conclusion that one, he had not even spoken with Thompson during his six years in the same department and that this review might start a conversation, and two, that even though this review "might worsen my prospects for tenure at Harvard, if it was done well it might attract employers outside Harvard."

Thus the published critique of Thompson that brought to light the partisan academica divide between the two men. And though Berkowitz knew of the potential intra-Harvard political consequences of his book review, he is now upset that his initial, negative predication might have come true. As evidence, he displayed-to the Nesson class a hand-written note from Thompson dated April 21, 1997, the same day he found out about the tenure denial, which read in part, "I have just learned that you were denied tenure...I was not able to support your candidacy...I hope to keep in touch."

For his part, Thompson says, "I am in a difficult position because I cannot speak about the substance of the case because of the general departmental policy that tenure deliberations are confidential. But I will say this: my actions in this case were limited to the usual role I play as a member of the government department as a part of the departmental discussion. I wrote a customary letter to the Dean [of FAS Knowles]. I don't normally [as a part-time University administrator] have any other role in FAS tenure decisions and I did not do anything other in this case either." In response to the statement by Nesson that Thompson "formally declared himself not to be a witness in the process," Thompson remarks, "I wasn't a witness because I wasn't there [he was giving a speech at Rice University in Texas at the time]. It wasn't because I didn't want to be a witness."

This forthrightness on Thompson's part, saying that he did not in fact recuse himself from the process of testifying before the President--even under the allegation of a readily-apparent conflict of interest--seems to undermine the claim of the Berkowitz camp that Thompson secretly intervened at the top levels of the administration to bias the ad hoc committee against Berkowitz. Thompson has made clear his professional disapproval of Berkowitz (through his negative department vote and this comment), and therefore had no need to subvert the process in order to affect the Berkowitz tenure decision. We will never know what sort of communication Thompson might or might not have had with the President. Yet it is possible that Thompson, as well as other members of the government department, simply disparaged the Berkowitz candidacy in procedurally-required secret letters to the President.

In any case, the issue at hand is greater than the academic parlor game of "Who killed J.R?" For the Berkowitz camp, the question is whether there is a legal cause of action through which the professor can attain a new tenure hearing and/or financial damages for irreparable harm. For the Joint Committee on Appointments, the question is whether due process was violated so that the supposed sanctity and neutrality of the tenure process which former Dean of FAS Henry Rosovsky heralds in The University, is maintained. For the University community as a whole, the question is whether this method of ad hoc review committees and secretive letters is the best way to determine if a candidate is fit for tenure. Berkowitz and his lawyers will most likely have to proceed with the circumstantial evidence that they have shared with the public in Nesson's forum and over the Internet. The Joint Committee, which has tremendous power and access, truly has the opportunity to look seriously into possible procedural wrongdoing in this case.

And, regardless of the outcome of those two deliberations, the University community can begin to ask the substantive, moral questions that a deliberative democracy, as Thompson and Gutmann argue, should. We should wonder whether public hearings might not better suit a tenure debate than backroom politicking. Though the case is far from resolved, and we don't know whether there was a liberal-conservative deal at the departmental level, and we don't know whether there was behind-the-scenes manipulation of the ad hoc committee or the President, and we don't know whether Berkowitz was himself critiqued in the secret letters to the President--fairly or unfairly, as a Straussian, or simply as a theorist--we do know that last spring's tenure denials were just one more season in the life of academic politics.