Berkowitz Tenure Suit Thrown Out

Reversing two earlier trial court decisions, the Appeals Court of Massachusetts ruled on June 6—eight months after the initial hearing—to dismiss the tenure lawsuit against Harvard filed by former Assistant Professor of Government Peter Berkowitz.

The ruling handed down by the appeals court, which dismissed Berkowitz’s entire civil lawsuit, followed a complicated series of which began more than four years ago.

Harvard denied Berkowitz tenure in April 1997. Shortly thereafter, he alleged that he had learned of various improprieties in his tenure procedure.

In a letter of grievance addressed to then-Dean of the Faculty of Arts and Sciences Jeremy R. Knowles in January 1999, Berkowitz said Harvard had not granted him a tenure procedure that adhered to its own rules and regulations.

“Four of the five members on the ad hoc committee assembled and approved by the Office of the Dean for the purpose of advising [former University President Neil L.] Rudenstine on my tenure showed bias, conflict of interest, or lack of relevant expertise,” Berkowitz wrote in his letter.

Berkowitz also claimed that the presence of Whitehead Professor of Political Philosophy Dennis F. Thompson on the ad hoc committee compromised the procedure for several reasons. Among them were Thompson’s combination of several positions in the University’s central administration, as well as his marriage to former Associate Dean for Academic Affairs Carol J. Thompson, who was “administratively connected to my tenure review in a variety of potentially decisive ways.”

The University Docket committee that examined Berkowitz’s grievance found it to be “clearly without merit.”

So Berkowitz sued the University for breach of contract in connection with its handling of his grievance.

“The complaint in no way suggests that I was entitled to tenure, only that I was entitled to a process consistent with Harvard’s rules and regulations,” Berkowitz said.

Harvard appealed to have the suit dismissed and was denied twice, once in August 2000 and once in January 2001, in the Superior Court of Massachusetts. The second appeal came in the wake of a new decision by the Supreme Judicial Court (SJC) concerning a tenure despute at Brandeis University.

That decision, according to Boston attorney Harvey A. Silverglate, who co-founded the Foundation for Individual Rights in Education and has long taken an interest in Harvard’s internal politics, ruled that university policies concerning tenure should be decided by the Courts only in a general manner in the event a lawsuit is filed.

“In plain English, it means that Universities will rarely be held strictly to the letter of their own rules,” Silverglate said.

“What has happened in the Berkowitz case,” he continued, “is that Harvard has been allowed to get away with not a slight deviation from its own rules and procedures but with a massive end-run around the heart of its promises as to how it will treat junior faculty in the tenure procedure.”

Harvard appealed once more, in February 2001, to prevent Berkowitz’s suit from entering the “discovery of evidence” phase, in which Berkowitz would have been able to view previously confidential documents and correspondence from his tenure review. The hearing was held last October.

The appeals court ruling issued June 6 found that the Faculty handbook’s “language and structure could create no reasonable expectation to support the plaintiff’s interpretation.” It agreed with the docket committee’s decision that Berkowitz’s claim regarding the lack of experts in his field of study on the ad hoc committee—which examined his case for tenure—was without merit.

The appeals court also concluded that “Thompson’s participation was not precluded by the contract” and that “other committee members were likewise not precluded because of association with Thompson.”

“We are gratified that the appeals court has determined that the University followed proper tenure procedures and found that the complaint filed by Peter Berkowitz was without merit,” said University spokesperson Joe Wrinn. “The University is pleased with the outcome.”

As to what will come next, Berkowitz said, “I’m seriously considering all options, including an appeal to the Supreme Court of Massachusetts.”

Silverglate said such an appeal would be unlikely to succeed.

“My understanding is that Professor Berkowitz is filing a petition to ask the SJC to review the appeals court decision,” said Silverglate. “Such petitions statistically are more likely not to be granted. In this case, I think the chances of the SJC refusing to review the appeals court are particularly high because Harvard’s influence on the SJC is so strong.”

—Staff writer Laura L. Krug can be reached at krug@fas.harvard.edu.