Judge Denies Move To Dismiss Berkowitz Suit

For the first time in its history, Harvard may have to release confidential internal documents from a tenure case, now that a Massachusetts Superior Court judge has ruled against Harvard's motion to dismiss a civil suit filed by a former assistant professor.

On Jan. 4, the judge ruled that discovery should proceed in the case, which was filed by Peter Berkowitz, a professor denied tenure in the government department.

Berkowitz claims that Harvard breached its contract with him by failing to follow its own guidelines for hearing employee complaints. A Faculty committee dismissed his grievance as "clearly without merit" without sending it on to an ad-hoc panel for consideration.

Berkowitz is asking that the court order Harvard to form a new ad hoc committee to review his grievance and is also seeking monetary damages.

University spokesperson Joe Wrinn said Harvard was prepared to release its internal documents during the discovery period.

"We're confident that we followed tenure procedures in this case. It should be seen as fairly normal that we're advancing to discovery," Wrinn said.

In filing its most recent motion to dismiss the case, the University argued that a Massachusetts Supreme Court ruling last September suggested that courts should not interfere with private universities' internal procedures. The court ruled against a student who had claimed that Brandeis University disregarded its student handbook guidelines when it disciplined him for allegedly raping another undergraduate.

But Judge Raymond J. Brassard, who had denied Harvard's first motion to dismiss the case prior to the Brandeis decision, found that Berkowitz's case still had merit. He made the ruling in light of an amended complaint Berkowitz submitted, detailing the ways in which he believes Harvard violated its rules.

"These are specific facts which, if true, suggest that Berkowitz's grievance raised non-frivolous issues, supporting the alleged legal conclusion that the Docket Committee misapplied the 'clearly without merit' standard in dismissing his grievance," Brassard wrote in the decision.

Berkowitz's amended complaint also alleges that Harvard unfairly compared his work to that of more senior scholars when considering his tenure bid.

Berkowitz and his lawyer, David A. Handzo of the firm Jenner & Block, declined to comment on the case.

G. Marshall Moriarty, an attorney at Ropes and Gray in Boston, who represents Harvard in the case along with Deputy General Counsel Robert W. Iuliano, also would not comment on the ongoing litigation.

--Staff writer Rachel E. Dry can be reached at dry@fas.harvard.edu.