Mass. Supreme Court Dismisses Tenure Case

After six years of grievances and trials at all levels of the Massachusetts justice system, the highest court in the commonwealth has terminated a former government professor’s efforts to sue the University over alleged improprieties in his tenure case.

The Supreme Judicial Court of Massachusetts (SJC) ruled on Sept. 9 to dismiss the lawsuit of former Associate Professor of Government Peter Berkowitz.

The decision means the end of the legal line for Berkowitz, whose battle began in April 1997 when the school denied his bid for tenure.

His first action was to submit a lengthy grievance, claiming the procedure had violated Harvard’s tenure rules and regulations. Berkowitz alleged that four of the five members of the ad hoc committee assembled to review his case “showed bias, conflict of interest, or lack of relevant expertise.”

A University Docket committee dismissed his grievance, however, calling it “clearly without merit,” and Berkowitz filed suit shortly thereafter.

Harvard appealed to have the suit dismissed and was denied twice, once in August 2000 and once in January 2001, by the Superior Court of Massachusetts. In February 2001, the University appealed once more to prevent Berkowitz’s suit from entering the “discovery of evidence” phase, during which Berkowitz would have been able to view previously confidential documents and correspondence from his tenure review. That hearing was held last October.

After an unexpectedly long eight-month delay, the Appeals Court of Massachusetts reversed the lower court’s decision and upheld Harvard’s stance that Berkowitz’s grievance was without merit. Berkowitz appealed once more, several weeks later—and on Sept. 9, the SJC dismissed the case for good.

“The legal matter is over. That’s the meaning of the Supreme Judicial Court’s decision not to grant further appellate review,” said Berkowitz. “The decision of the Appeals Court of Massachusetts st ands for the position that disputes over Harvard’s contracts are not reviewable by the courts of Massachusetts. I think this puts Harvard above the law and I think it’s a threat to academic freedom. In my opinion, the meaning of the Massachusetts Court of Appeals ruling is that universities get to be both judge and party in cases of controversy over their contracts.”

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, said the series of decisions established a dangerous precedent.

“The case was obviously decided wrongly,” he said. “I think it’s a legal precedent for the proposition that universities are allowed to be lawless.”

University Spokesperson Joe Wrinn said Harvard is “pleased with the results” of the decision.

“It showed that the court agrees that we upheld, or followed, our own rules,” said Wrinn. “The court agreed that we had followed the contract we had with Professor Berkowitz.”

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