Massachusetts Court Upholds Harvard University's Decision to Deny Tenure
December 24, 2003
Obtaining tenure at elite universities has always been difficult, and a recent decision by the Massachusetts Appeals Court involving Harvard University has not made it any easier. The case, Berkowitz v. President and Fellows of Harvard College, makes it clear that courts should avoid second-guessing tenure decisions at private colleges and universities as long as the schools follow their own policies.
Dr. Peter Berkowitz alleged that Harvard University had failed to comply with its procedures when it denied him tenure in 1997. Under Harvard’s rigorous tenure process, a candidate is ranked against a “short list” of comparable leading scholars in the field. If a candidate receives a recommendation from his or her academic department, a dossier on the candidate is forwarded to Harvard’s dean of the faculty of arts and sciences. The dean then assembles an ad hoc committee of experts from inside and outside Harvard to advise the president on the decision. The ad hoc committee is intended to ensure that the university judges candidates on their merits. The final decision on tenure is made by Harvard’s president.
Harvard’s faculty handbook allows candidates to file a grievance if they believe that the proper procedures have not been followed concerning a tenure decision. A “docket committee” does a preliminary screening of grievances, and it may dismiss any complaint that is “clearly without merit.”
After Harvard’s president denied tenure to Dr. Berkowitz, he filed a grievance pursuant to the handbook complaining that one of the professors in his department was biased against him, and that the professor’s position as assistant provost precluded his participation in the tenure process. Dr. Berkowitz also claimed that the ad hoc committee was biased and that it lacked sufficient expertise to judge him on his merits, as the handbook required. The docket committee found that Dr. Berkowitz’s claims were clearly without merit.
In court, Dr. Berkowitz reiterated the claims he made in his grievance. In addition, he alleged that the docket committee’s detailed inquiry into his grievance, and its consultation with legal counsel, exceeded its authority. Dismissing all of these claims, the court concluded that Harvard’s handbook did not limit the University’s right to do anything that Dr. Berkowitz had alleged. Further, the court held that Berkowitz could not amend his complaint to allege a defect in the composition of the “short list” until he had first filed a grievance on the issue with Harvard. The court’s opinion repeatedly emphasized the importance of deferring to decisions by academic institutions in matters involving faculty or students.
The Berkowitz case shows the value of drafting a clear tenure procedure that gives a college or university substantial discretion in reaching a decision about a candidate. As long as a school follows the procedures it has created, Massachusetts courts should be reluctant to interfere with a tenure decision.
For more information, e-mail Doug Phillips at doug.phillips@hklaw.com or call toll free, 1-888-688-8500.
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