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. HOCKEY Atlantic W L T Pts GF GA Home Away Dlv Philadelphia 21 9 10 52 120 82 11-4-5 10-5-5 4-4-3 New Jersey 22 12 5 49 116 104 9-7-4 13-5-1 9-2-1 Pittsburgh 19 10 7 45 107 94 10-3- 9-7-2 3-2-3 N.Y.Rangers 16 17 7 39 110 109 9-7-2 7-10-5 2-5-3 N.Y. Islanders 13 26 3 29 96 124 7-11-2 6-15-1 2-7-0 Northeast W L T Pts GF GA Home Away Div Toronto 24 15 2 50 133 117 15-7-2 9-8-0 5-6-0 Ottawa 22 13 5 49 124 91 12-7-2 10-6-3 3-4-1 Buffalo 21 11 6 48 109 78 11-5-2 10-64 7-2-1 Boston 19 14 6 44 104 89 11-4-4 8-10-2 5-3-1 Montreal 15 20 7 37 96 113 10-8-3 5-12-4 2-7-1 Southeast W L T Pts GF GA Home Away Div Carolina 18 16 7 43 106 101 10-8-5 8-8-2 2-0-3 Florida 14 14 10 38 97 102 8-8-3 6-6-7 3-1-3 Washington 15 20 3 33 92 97 7-9-2 8-11-1 2-2-1 Tampa Bay 9 29 3 21 86 146 5-13-1 4-16-2 1-5-1
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