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Officials Misrepresent Facts In Berkowitz Tenure Fight

Letters

NO WRITER ATTRIBUTED

To the editor:

Jacqueline Newmyers's fine article ("Berkowitz Prepares to File Formal Grievance over Tenure Denial," Dec. 14, 1998) summarizes the fundamental procedural flaws-concerning both the composition of the ad hoc committee and the participation in the tenure review by Associate Provost of the University, Director of the Program in Ethics and the Professions, and Professor of Government Dennis F. Thompson-at the center of my appeal. However, some of the information given to Ms. Newmyer by members of the Harvard faculty and administration is untrue or misleading and needs to be corrected.

First, according to The Crimson, Professor Thompson rejects "any suggestion that his status as a University official inflates his influence with other faculty members." Professor Thompson believes that "It is false and insulting to suggest that my colleagues in the government department would defer to me or anybody else in that way. Tenured faculty don't bow to anyone".

Yet Professor Thompson's objection betrays a misunderstanding of my grievance, a misconception about Harvard's own tenure review procedures, and more generally a failure to respect the ethics of procedure. As I pointed out in a letter of Nov. 9, 1998, to Associate Dean for Academic Affairs Carol J. Thompson, the good character of my colleagues in the Department of Government does not obviate the need for fair process in tenure review at Harvard (the letter, along with other pertinent documents, can be found at ). Indeed, recognition of the necessity for procedural safeguards, without reference to the quality in individual character, is already, in a variety of ways, built in to Harvard's tenure review system.

For example, one learns from Dean Thompson's own memo of March 27, 1998, concerning "The Tenure Appointment Process in the Faculty of Arts and Sciences," that regardless of individual character faculty associate deans routinely recuse themselves from matters touching on tenure review in their home departments. A letter to me and my advisor, Professor Charles Nesson of Harvard Law School, of Oct. 21, 1998, from Professor Roderick MacFarquhar, chair of the Department of Government, explains that in the composition of the ad hoc committee, "The Dean has the final word, presumably to ensure that no Department can pack the committee to ensure success." Harvard's own tenure review procedures require that the president, so far from relying on the objectivity of tenured faculty, must consult with scholars from other departments and from outside the university who are "chosen for their objectivity and competence to judge whether the proposed appointment represents the best direction of development for the department, as well as for their ability to appraise the qualifications of the nominee." And after declaring their votes on a candidate's tenure in front of their colleagues in the department, tenured faculty are asked by the Office of the Dean to write confidential letters for the eyes only of the deans, the ad hoc committee, and the president. The use of the confidential letter reflects the fear that otherwise tenured faculty will bow to pressures from their colleagues and fail to express their candid opinions to officers of the administration.

The purpose of these procedural safeguards in Harvard's tenure review system and others like them is to shield professors and administrators from situations in which their private interests or the interests that attach to their offices might distort their judgment. In this context it is curious to hear the associate provost of Harvard University downplay the reach and significance of his administrative position. It is odd to witness the director of the Program in Ethics and the Professions depreciate the importance of fundamental norms of fair process. And it is false and insulting for Prof. Thompson to suggest that asking Harvard to respect its own procedures and the worthy principles embodied in them presents an affront to him or his colleagues.

Second, Prof. Thompson both obscures his actual role in my tenure review and contradicts a statement he made to The Crimson on Jan. 12, 1998, in his Dec. 14 statement to The Crimson. "I participated in the department as I normally do," Professor Thompson declared, "and I didn't play a role after [deliberations in] the department."

Yet it is precisely by participating in departmental deliberations in the normal fashion after becoming associate provost of the University (in September of 1996 shortly before my tenure review began) that Prof. Thompson compromised the integrity of the tenure review process. For by opposing my tenure in the Department of Government in his role as professor while serving in the office of President Rudenstine, the final judge in tenure review at Harvard, Prof. Thompson violated the fundamental norm of procedural fairness that prohibits one from serving as both judge and party to a cause.

Professor Thompson pointed out that "he did not appear before the ad hoc committee, as he was out of town on the day it met." But this hardly settles the question of whether he participated in the tenure review after departmental deliberations.

Indeed, in his Jan. 12 statement to The Crimson, Professor Thompson himself indicates that after playing is "usual role" in departmental deliberations he wrote his "customary letter" to Dean Knowles. But the very purpose of this "customary letter"-a confidential letter that is in fact a formal feature of tenure review in the FAS-is to enable all tenured faculty members to play a role in tenure review beyond departmental deliberations and have their candid opinions, unconstrained by pressures from colleagues, heard by the deans, the ad hoc committee, and the president.

Third, in the Dec. 14 Crimson, Associate Dean for Academic Affairs Carol J. Thompson declared in response to the charge that her husband, as associate provost of the University and a member of the Office of the President, stands in a supervisory relation to her in her official position in the Office of the Dean, "None of his functions in any way relate to my job."

It is easy to see, however, that Dean Thompson is mistaken.

As associate provost of the University (), Professor Thompson advises President Rudenstine on a complex and sprawling variety of academic issues connected to the tasks of the Office of the Dean. Since President Rudenstine has declared that "appointing tenured faculty and appointing deans are the two most important things I do" ("Behind the Crimson Curtain," Lingua Franca, Oct. 1998, p. 32), Professor Thompson, as a key member of the president's staff, is inextricably involved in President Rudenstine's decisions about hiring and firing deans.

Consequently, Professor Thompson's participation in my tenure review created a conflict of interest not only for his wife, the associate dean for academic affairs, but also for Jeremy Knowles, Dean of the Faculty of Arts and Sciences and all the members of Dean Knowles's staff, including former faculty Associate Dean Peter Ellison, a scholar of the biological bases of behavior and a professor in the Department of Anthropology, who assembled the ad hoc committee that advised President Rudenstine on my tenure.

Fourth, according to The Crimson, "One high-ranking official expressed concern that Berkowitz 'has become obsessed with this [case]' and is discrediting himself' by harping on the Harvard setback rather than moving onto another institution." I am touched that this "high-ranking official," who for some reason refuses to disclose his or her identity, has become concerned for my future. But I can't help wondering about the quality of concern, to say nothing of the purported access to my inner state, inasmuch as no member of the University administration has uttered so much as a single word to me in connection to my appeal.

In pursuing over the past few months the informal and formal mechanisms laid out in the FAS "Guidelines for Resolution of Faculty Grievances," Professor Nesson and I have been following the path that it was suggested to Professor Nesson we take by former Secretary of the University Michael Roberts, Provost Harvey Fineberg, and Vice President and General Counsel Anne Taylor. Indeed, in a letter of Sept. 17, 1998, John Fox, Secretary of the Faculty of Arts and Sciences, writing on behalf of Dean Knowles, also directed me to the "Guidelines." Surely Dean Knowles will want to investigate promptly the identity of the "high-ranking official" who has publicly though anonymously condemned me for following the grievance procedures to which I was directed by three prominent representatives of the Office of the President as well as by Dean Knowles himself.

Finally, in response to the "high-ranking official" who anonymously attacked Professor Nesson for his involvement in my appeal, I wish to say that Charlie has given generously of his talent, time and energy and I am most grateful. It is true that Charlie has an unusually low tolerance for cant, double-talk and hypocrisy. But it is precisely these eccentricities that make him a good friend and an invaluable asset to the University. PETER BERKOWITZ Jan. 12, 1999 The writer is associate professor of government 13/01/1999 ~~Editorial 10 Letters Tenure System Needs Review To the editors:~~

The unidentified central administration sources in your excellent story on the Peter Berkowitz Case raise questions about the public nature of Peter's appeal, suggesting as reason only that I am enjoying it, and doubting the viability and advisability of following intrenal Harvard grievance procedures where a decision of the University President is concerned.

I have seen the tenure review system work unfairly against too many people. It becomes more distressing every time it happens. There comes a point where, even at the risk of being ridiculed within the Harvard community, I have to stand up and say something. The tenure review system is rotten, rooted in tyranny. It rests the credibility of Harvard on the unexplained, unarticulated, unreviewable judgment of a single man. It should be changed.

I am glad I took Peter's case as his advisor. I feel I have done this at considerable risk to myself because I open myself up to grave criticisms by my colleagues, by students, or whoever wants to criticize.

Procedural history is needed to address the question why I would raise the issues of the case of Peter Berkowitz in the public manner that I have. I took on Peter's case after being asked by two good friends to meet with him. The time was Fall, 1997.

Peter and I first sought discrete means of leading Harvard to consider the injustice done to him. On confidential advice of a wise man of Harvard, identified by Lingua Franca Magazine as Henry Rosovsky, Peter and I first sought redress by appealing quietly and respectfully to an obscure body called the Joint Committee on Appointments. We did not post this initial letter by Open Internet. The members of the Joint Committee on Appointments are drawn from the Corporation and Board of Overseers. At least technically and theoretically, they hold ultimate power over tenure cases. The President's great power in tenure matters is actually a delegated power from the Corporation and Overseers.

As Jerry Green, Harvard's former provost, describes it, the committee gives final approval to all promotions, appointments, and changes in title. It meets periodically to sign off on all appointments and to relay to the Corporation and the Board of Overseers what's been going on. "It's the final blessing," Green says.

Our discrete appeal to the Joint Committee was foreclosed on Dec. 29, 1997, not by any process of the Committee but by letter from Anne Taylor, General Counsel of Harvard University. She informed Peter's lawyer, Matt Feinberg, that she had thoroughly investigated Peter's case and found no evidence of abuse of process to warrant consideration by the Joint Committee. Additionally, she told Feinberg that she did this investigation personally and made the decision that our complaint would not be considered by the Committee. In fact, so far as Peter and Matt Feinberg and I can tell based on our own inquires and investigation, Anne Taylor made no investigation whatever She seems simply to have concluded that there should be no review of the President's decision in the Case of Peter Berkowitz.

Peter and I chose at that point to make his case a subject of clinical study in my Winter Evidence Class. The focus of this class in on how to prove things, the nature of truth, the role of law and communications in the process. I set about, with my class, exploring both facts and legal theories on which Peter could proceed. Our first objective was to conduct our own investigation sufficiently to warrant return with request for reconsideration to the Joint Committee, this time with sufficient muscle to induce the members of the committee to take our claim seriously. We used Open Internet as means of communicating and sharing information. By May 1998, we had completed a preliminary investigation, the fruits of which were posted on the Web. We had drafted a reconsideration petition, also posted on the Web. This time our petition was denied before it was even sent! In response to the posted draft on the Web we received e-mail communication from Mike Roberts, secretary to Harvard, informing us that the appropriate procedural route for us to travel was not to the Joint Committee, but rather to Dean Knowles through the Faculty of Arts and Sciences internal grievance procedures.

I responded initially with incredulity. How could Dean Knowles, who serves at the President's pleasure, effectively review the President's decision? How can a committee answering to Dean Knowles effectively review a decision of the President? Wasn't this a sham, just a tactic to ensnare Peter's case in procedure while his time ran out? Same signal from Anne Taylor.

Then University Provost Harvey Fineberg recommended to me that I use this procedure. I didn't know what at first to make of it. I like and trust Harvey, even though I know in formal institutional position he is on the President's team. I considered it to be possible that he was delivering a message from the central administration that it was open to resolving Peter's case if we chose to follow this procedure. The point is as simple as the Uncle Remus story about Brer Rabbit and the briar patch. Each thorn along the procedural way a prick to spark consciousness in a new Harvard audience, each a stopping point along our way toward truth and justice and a stage to tell our story.

The internal procedural route of review offers value. The true audience for our appeal is not a technical legal committee, but the Harvard Faculty and the broader Harvard University Community. The true basis of our appeal is not to technical misapplication of rule, but to standards of justice and fair play. The internal procedural route may indeed turn out to be as much sham as was Peter's ad hoc committee process, but this, if it happens, will be demonstrated openly on the record of the Berkman Center and will only further strengthen our appeal.

Give credit to Neil Rudenstine for many great accomplishments. But the biggest challenge for him lies ahead. He can, and I hope will, prove himself to be a truly great president of Harvard if he takes a stand for openness and due process by seeking justice for Peter Berkowitz and reforming the tenure process for all those who follow. CHARLES R. NESSON Jan. 5, 1999 The writer is Weld Professor of Law ~~13/01/1999 Sports Wire 11~~