Challenging universities' decision-making

One month after Peter Berkowitz, currently a law professor at George Mason University, submitted a dossier for tenure in the government department at Harvard University in 1996, he wrote a negative book review in the New Republic.

The book — "Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided in Politics, and What Should Be Done About It," written by Dennis Thompson, a senior professor in Berkowitz's department and an associate provost at Harvard, and Princeton politics professor Amy Gutmann — looked at the public discussion of moral principles.

What originated as a critical review of the book ended up influencing the decision that denied Berkowitz tenure and ultimately to Harvard breaking its own rules for evaluating tenure, Berkowitz supporters contend.

In May 2000, a little more than three years after his initial request for tenure, Berkowitz filed suit against Harvard for breach of contract. Harvard has since lost two court motions to dismiss the case and is facing a trial this fall that, if successful, would require the university to release tenure-sensitive documents.

Though not a challenge to Harvard's tenure system, Berkowitz's suit alleges that the university failed to comply with its own rules in his specific case.

Every university has its own tenure procedure with its own set of rules, classics department chair Robert Kaster said, comparing Princeton to Harvard and the University of Chicago.

At Princeton, "each department in the University has or is supposed to have a constitution, which sets out the procedure that is supposed to be followed," Kaster explained.

"The basic rule of the University is you cannot vote on the promotion or appointment of someone of higher rank than yourself," Kaster said. "In the case of the classics department there is a personnel committee consisting of all tenured members."

Similar to Harvard's system of tenure, individual departments at Princeton collect information about scholarship, teaching and university citizenship and vote on each candidate.

If the departmental vote is positive, a brief containing extensive commentary from the chair is forwarded to a University-wide review board — informally called the 'Committee of Three.'

"The Committee of Three — with six faculty members and the senior deans and provost — read the entire file and make a recommendation to the president," said President Tilghman, who previously served on the committee. "Thus the final decision is made by the president alone. There have been instances in which the committee has advised the president to overturn the positive decision of the department."

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After the government department recommended tenure in February 1997, an ad hoc committee, according to Harvard's tenure procedure, convened to review Berkowitz's bid for tenure. Former Harvard President Neil Rudenstine '56 adopted the committee's recommendation to deny Berkowitz tenure.

Gutmann, whose book is central to the case, declined to comment on both the case and the tenure system at Princeton.

In January 1999, Berkowitz — with the help of Charles Nesson, a law professor at Harvard and a Berkowitz supporter — filed a 38-page grievance letter with Harvard's Dean of the Faculty of Arts and Sciences Jeremy Knowles.

In a cover letter to Harvard's Docket Committee — the review board of the university analogous to Princeton's Committee of Three — Nesson described the tenure process as "closed, autocratic, unaccountable, inaccessible to the Harvard community at large, built on principles of tyranny, with all power at the top."

Berkowitz, who declined comment because of the ongoing trial, explained his specific procedural flaws and grievances in his formal brief to the Docket Committee. "Four of the five members of the ad hoc committee assembled and approved by the office of the dean for the purpose of advising President Rudenstine on my tenure showed bias, conflict of interest, or lack of relevant expertise."

Berkowitz claimed that Thompson, "compromised the integrity of the tenure review process in my case by taking part in deliberations in the Department of Government and by participating by means of confidential letter to the dean in the deliberation of the office of the dean, the ad hoc committee and the president."

Serving as both judge and party to the case, Thompson, Berkowitz wrote, compromised the Docket Committee review board.

"Thus Dean Knowles and the associate deans were asked to impartially administer a tenure review in which a prominent member of the office that supervises them was involved as a faculty member and an interested party," they said.

Calling Berkowitz's brief "clearly without merit," the Docket Committee denied a review of the case, leading Berkowitz to pursue a legal challenge.

"If a university fails to follow its own procedures or adhere to its own standards," Politics Professor Keith Whittington said, "then it has potentially broken its contract with its employees and it is entirely appropriate that such matters be taken to court, if a more amicable settlement cannot be reached."

Though there are no grounds for litigation if a faculty member is not pleased with a tenure case, Whittington said "courts are appropriately available to help enforce the terms of a valid contract. Universities must be able to make their own decisions about hirings and promotions, and they appropriately have substantial flexibility in making those decisions. But once a university has put a process in place for making such decisions, and an individual has accepted employment at a university under those terms, then the university has a legal obligation to faithfully adhere to those procedures."

Though Berkowitz is challenging Harvard on its ability to comply with its own regularities, he maintains that it is not an overall challenge to the tenure procedure at the university. Tilghman, who has been a critic of tenure in the past, does not see an immediate need to change policy at Princeton.

"I believe that the current system is both rigorous and fair, and see no reason to change it at the moment."