Berkowitz v. President & Fellows of Harvard College

789 N.E.2d 575, 58 Mass. App. Ct. 262, 2003 Mass. App. LEXIS 635
CourtMassachusetts Appeals Court
DecidedJune 6, 2003
DocketNo. 01-P-525
StatusPublished
Cited by66 cases

This text of 789 N.E.2d 575 (Berkowitz v. President & Fellows of Harvard College) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berkowitz v. President & Fellows of Harvard College, 789 N.E.2d 575, 58 Mass. App. Ct. 262, 2003 Mass. App. LEXIS 635 (Mass. Ct. App. 2003).

Opinion

Kafker, J.

When Harvard University denied tenure to the plaintiff, Associate Professor Peter Berkowitz, he filed a grievance pursuant to the university’s1 appointment handbook. The grievance was dismissed as “clearly without merit” by the committee that performs the preliminary screening of faculty grievances. Thereafter, the plaintiff brought suit claiming that the committee exceeded its powers in dismissing the grievance. As we conclude that the conduct he grieved contravened neither the language nor the purpose of the appointment handbook, and that the committee was expressly authorized to screen out and dismiss claims that were “clearly without merit,” we reverse the trial court order denying the university’s motion to dismiss the complaint. We further conclude that the trial court erred in allowing the plaintiff to amend his complaint to allege an appointment handbook violation that had never been subjected to the university’s internal grievance procedure.

I. Background. A. The appointment handbook. The appointment handbook (handbook) provides that “[tjenured professorial appointments are reserved for scholars of the first order of [264]*264eminence.” It includes procedures for a multifaceted review of a tenure candidate and comparison of the candidate with other distinguished scholars. When a candidate (also referred to as a nominee) is being considered for tenure, the candidate’s academic department “evaluates relevant scholars and ordinarily reduces the number to a short list of [five] or [six] leading contenders who, as much as possible, are comparable in ability, distinction, and career stages.” When considering names for the short list, the department is not to exclude scholars “on an assumption, or direct knowledge, that they will not be available.” The department then sends the short list to other outstanding scholars in the field, requesting that they rank and compare those on the list, and soliciting suggestions for additions to the list. Minority outreach is also ongoing. The department then votes on the candidate. Thereafter, the department chair prepares an extensive dossier on the candidate. Included in the dossier, along with the nominee’s publications and curriculum vitae, the department vote, information on the other scholars on the short list and extensive additional materials, is “a confidential letter from each voting member of the department.” Each voting member of the department is authorized and expected to submit such a letter regarding the nominee. The dossier is forwarded to the university’s office of the dean of the faculty of arts and sciences (dean).

After receiving the complete dossier, the dean asks the president of the university (president) to convene an ad hoc committee. “The purpose of the ad hoc committee review is to assure that the [u]niversity takes the broadest possible view of opportunities to recruit the ablest people and to make certain that nominees are judged strictly on their merits as scientists, scholars and teachers. The committee is ordinarily composed of [three] or [four] scholars (‘generalists’ as well as ‘specialists’) from outside the [u]niversity, [two] tenured members of the [¶] acuity from outside the department, and (ex officio) the [d]ean and the [president.”

The ad hoc committee, after reviewing the dossier and hearing departmental witnesses, advises the president on:

“1. the importance of the [nominee’s] field to the long-term development of the department; and

[265]*265“2. the quality of the proposed nominee.”

The final decision on tenure is made by the president.

As provided in appendix X of the handbook (“Guidelines for the Resolution of Faculty Grievances”), “[a]ny faculty member may bring forward for resolution . . . any grievance . . . which contends that proper procedures have not been followed in decisions regarding promotion.” Pursuant to section 3(b) of appendix X, grievances are submitted “to the elected members of the [d]ocket [c]ommittee of the [¶] acuity for preliminary screening.” The section provides that the elected members of the docket committee2 are “empowered to dismiss the complaint if it is found to be clearly without merit.”

B. The plaintiff’s grievance. In April, 1997, the president denied tenure to the plaintiff, an associate professor in the university’s department of government. The plaintiff thereafter filed a grievance pursuant to the handbook. In the grievance letter sent to the docket committee and referenced in the complaint, the plaintiff claimed bias on the part of Dennis F. Thompson (Thompson), an associate provost and professor of government. The plaintiff also claimed bias on the part of some members of the ad hoc committee and claimed that the committee lacked specialists in his field. He “emphasize[d] that these grievances — both concerning the composition of the ad hoc committee and concerning . . . Thompson’s participation in [his] tenure review — focus[ed] on procedural flaws and [did] not address the motives or character of those involved.”

In particular, the plaintiff asserted in his grievance that Thompson “compromised the integrity of the tenure review process in [his] case by taking part in deliberations in the [department of [g]ovemment and by participating by means of [Thompson’s] confidential letter to the [d]ean in the deliberations of the [o]ffice of the [d]ean, the ad hoc committee, and the president.” In regard to the ad hoc committee, the plaintiff claimed that the provision stating that the committee will “ordinarily” be composed of both specialists and generalists was violated. He contended that the committee lacked specialists who could consider his primary field, the history of political [266]*266philosophy; his book, “Nietzsche: The Ethics of an Immoralist”; and his manuscript, “Virtue and the Making of Modem Liberalism.”3 He also claimed bias against him on the part of committee members due to their professional contacts with Thompson. One member had attended graduate school with Thompson and had written a favorable blurb for a book cover of an author that the plaintiff had sharply criticized. Another, as codirector of “the Program in Mind, Brain, and Behavior,” was a member of the offices of the provost and president, and therefore an administrative colleague of Thompson.

After reviewing the plaintiff’s grievance, the handbook, and the docket committee’s collective understanding regarding the tenure process at the university, and after consulting with legal counsel and “gather[ing] additional information that [the docket committee] felt was necessary ... to reach a decision,” the docket committee concluded the grievance was “clearly without merit.” In regard to Thompson’s participation in the tenure review process, the docket committee wrote: “We are not aware of any published rule . . . that requires a member of a departmental faculty who also holds an official position in the [ujniversity to excuse himself or herself from the obligation imposed on members of a department to express their views regarding tenure candidates in their department.” Moreover, the docket committee understood that “professors who hold official posts traditionally consider their role as members of their home departments to be paramount. They therefore routinely express themselves regarding tenure cases when those cases are discussed in their departments, and write the letters for ad hoc [267]*267tenure review committees and the [president that are required by the [handbook].”

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Bluebook (online)
789 N.E.2d 575, 58 Mass. App. Ct. 262, 2003 Mass. App. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkowitz-v-president-fellows-of-harvard-college-massappct-2003.