DENIED TENURE, A JUNIOR PROFESSOR AT HARVARD FIGHTS BACK
BY DAVID GREENBERG
On Monday, October 6, 1997, at 4 oclock, Peter Berkowitz, a thirty-eight-year-old political theorist at Harvard, walked across the law school campus to Hauser Hall, a gleaming new building. Making his way up to a fourth-floor office, he found a plush green chair in the corner of the room and sat down. He had come to see Charles Nesson, the Weld Professor of Law, in the hope that Nesson could help him.
The two men began to talk, and Nesson reached down and switched on a tape recorder. Berkowitz flinched. "Its okay," Nesson said. Their conversation, he assured Berkowitz, was protected by attorney-client privilege. "You can trust me."
Berkowitz proceeded to recount his tale. The previous February, he and a fellow political theorist named Bonnie Honig had been nominated for tenure by Harvards government department, only to have the universitys president, Neil Rudenstine, veto the promotions. Allegations of behind-the-scenes intrigue swept across the campus and into the national newspapers. At the time, it was Honigs caseseized on as an example of Harvards poor record of tenuring womenthat stole the headlines. So when Honig landed a job at Northwestern, the storm seemed to pass.
But Berkowitz had heard intimations about his own casethat his promotion had been sabotaged at high levels. All through the spring and summer, he vacillated about whether to do something about it, not even sure what his options were. Quietly, he nursed a suspicion that he had been wronged.
Since Nesson agreed to take up Berkowitzs cause last October, the unlikely pairthe flamboyant attorney and the soft-spoken political philosopherhave fought a protracted battle against the Harvard administration. Of course, junior professors everywhere are familiar with situations like Berkowitzs. When youve been denied tenure, its hard to avoid both the suspicion that someone has wronged you and the desire to vindicate yourself. But the Berkowitz affair is not only about the dilemmas of the disappointed professor. It has also cast a spotlight on the notoriously grueling process by which Harvard grants tenure. And it has illuminated the costs and benefits of making tenure decisions behind closed doors at any schoola subject that Berkowitz, as a theorist of issues of fairness and power, was well-positioned to address. As it has unfolded, the entire story has become a public, and frequently bizarre, spectacleone including the bold use of the Internet, a brigade of zealous law students, and even President Clintons favorite private eye.
No one in his right mind should expect to get tenure at Harvard. Though the schools junior ranks are stocked with dazzling prodigies, only about one in five gets the treasured promotion. The university justifies these cruel statistics by insisting that its full professors be of world-class caliber, and few young scholars, however accomplished, can claim that status. In practice, this allows the university to get away with denying tenure to almost anyone, for if after six years you cant prove definitively that youre the best in your field, you have no grounds for complaint.
The lofty standard exists to preserve Harvards reputation, to skim off the extraordinary from the merely excellent. But in its quest for world-class professors, Harvard often ends up making world-class blunders. Recently, for example, it has turned away such stellar tenure aspirants as historians Alan Brinkley (now at Columbia) and Patricia Nelson Limerick (Colorado) and sociologists Theda Skocpol (now back at Harvard) and Paul Starr (Princeton), the last of whom had won a Pulitzer Prize even before his tenure review. All have gone on to achieve great eminence in their respective fields. In these and other cases, Harvards high standards prompted noisy recriminations, demoralizing junior professors and dividing departments. In Skocpols case, the university was forced to reverse its decision after an internal grievance committee found evidence of sex discrimination.
Harvards president maintains that applying the most rigorous standards, even in the face of the occasional outcry, is essential to his job and to Harvards greatness. "On the tenure decisions," Rudenstine says, "Ive certainly had enough complaints here and again. At the same time, if the next one that comes along looks like one I should turn down, Im sure going to turn it down. Not that I relish turning them down. But its the most fundamental thing I do having to do with the integrity of the institution and its values."
Junior professors at Harvard generally get considered for tenure in their seventh year on the faculty. During that anxiety-ridden period, a candidate endures more scrutiny than a petitioner for national security clearance: Your lifes work is assessed and debated in a multistage process shrouded in secrecy. You can ascend from one stage to the next never knowing when it might suddenly be all over.
The process is so complicated that even many professors dont know all the steps. First, a subcommittee from your department peruses your dossier, which consists of your publications, teaching evaluations, and confidential letters solicited from experts in your field. Then, your department as a whole gathers to vote on whether it wants to promote you. Next, the dean of the faculty of arts and sciences reviews your dossier, briefed by a second set of confidential letters. If the dean approves you, a special ad hoc committee is convened. This committee usually consists of three experts in your field from outside Harvard, as well as two senior Harvard professors from outside your department. The identities of the committee members, and the outcome of their deliberations, are held in strict secrecy. Finally, regardless of the committees vote, the president can approve or veto your candidacy.
From the day his journey began in July 1996when the government department chair, Kenneth Shepsle, asked him if he wanted to go for tenurePeter Berkowitz believed, as he put it, "that while the odds were against my getting tenure, I had a fighting chance." He was widely considered an accomplished scholar, a talented teacher, and something of a public intellectual. He started compiling his dossier: his first book, Nietzsche: The Ethics of an Immoralist, published by Harvard University Press in 1995; a manuscript of his second book, about the role of virtue in liberal thought, which Princeton University Press had just agreed to publish; and numerous articles and reviews in journals from The Yale Law Journal to The Public Interest. On October 15, Berkowitz turned the dossier over to the departmentand with it, the fate of his career at Harvard.
Perhaps the most significant item in the dossier was a review, at that point still unpublished, that Berkowitz had written for The New Republic magazine. The subject was a book called Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided in Politics, and What Should Be Done About It (Harvard) by Amy Gutmann and Dennis F. Thompson. Like other works in the burgeoning subfield of liberal political theory called deliberative democracy, Democracy and Disagreement argues that democratic societies ought to use public discussion to find consensus on divisive policy issues. Gutmann and Thompson argue that such discussion should be grounded in shared moral principles, chief among them reciprocity, accountability, and a commitment to openness. As "procedural" liberals, they believe that a neutral decision-making process will yield fair outcomes.
In many ways, the subject was a perfect one for Berkowitz. His forthcoming book offered a pointed critique of prevailing liberal thought, and he had published other reviews on similar topics. His reviews were already winning him a reputation as a rapier-pen. "One of Peters best attributes is he writes these excellent review articles," says a senior government department colleague. "He takes no prisoners. He destroys people with a few sentences, and its well deserved in most cases."
In another respect, though, Berkowitz was a decidedly peculiar choice to review the book. Dennis Thompson, after all, was a senior member of the Harvard government department, and would be exercising considerable influence over Berkowitzs future there. Nor was Thompson an ordinary faculty member. He directed a program housed in Harvards Kennedy School of Government called Ethics and the Professions and was the newly appointed associate provost of the university. He also happened to be a close personal friend, for more than twenty-five years, of Harvard president Neil Rudenstine.
Berkowitz knew the dangers of taking on a powerful senior colleague. But, he calculated, he couldnt count on winning tenure at Harvard, and a review of an important book in a high-profile national magazine certainly might help him land a job elsewhere. He might even get points for courage. He also had a mischievous thought: Since Thompson was, broadly speaking, a mainstream liberal in his philosophy, and Berkowitz a critic of mainstream liberalism, he figured Thompson would likely oppose his tenure bid anyway. Thus, the review could make Thompsons opposition seem suspect. In sum, Berkowitz says, "I determined the potential benefits outweighed the potential costs."
The review he wrote, titled "The Debating Society," appeared in the November 25, 1996, issue of The New Republic. In civil language but with ferocious bite, Berkowitz tore into Thompson and Gutmanns book. Berkowitz argued, among other things, that the authors failed to understand that democracy and deliberation arent always compatible. While supposed to serve the interests of the masses, the ostensibly neutral conditions that the authors establish for deliberative decision making can actually benefit the intellectual elites who determine those conditions:
Deliberative democracy as Gutmann and Thompson conceive it is, in effect, an aristocracy of intellectuals. In practice, power is likely to flow to the deans and the directors, the professors and pundits, and all those who, by virtue of advanced education, quickness of thought and fluency of speech, can persuade others of their prowess in the high deliberative arts.
Back at Harvard, the review drew notice among Berkowitzs colleagues. "Just as you come up for tenure, you criticize a senior colleague in printthats pretty remarkable," says one senior government professor. "Several of us thought it admirable that he was clearly not intimidated," says another. Stanley Hoffmann, a distinguished scholar of international relations in the department, told Berkowitz ominously that the review was "brilliant but suicidal." It was likely that Thompson already opposed Berkowitzs tenure bid, Hoffmann and others suspected, but the review surely didnt help.
Even without the review, Berkowitz was no shoo-in. Harvards government department includes only a handful of political theorists amid a vast number of political scientistsscholars of international relations, comparative politics, and American politics. Many of these scholars favor a quantitative analysis of the social sciences over the humanistic approach of political theory and can be indifferent or hostile to theorists, for whom the department typically allots only a few tenured slots.
To complicate matters, two theoristsBerkowitz and Honigwere up for tenure simultaneously. Most of Harvards theorists are liberals, meaning (in the terms academic as distinct from its vernacular sense) that they focus on liberty, equality, and individual rights. Honig has been described as a leftist critic of liberalism. Berkowitz, while no right-winger, is a protégé of sorts of Harvards conservative theorist Harvey Mansfield, and he often uses conservative ideas to interrogate mainstream liberalism. Thus, while department sources say the two candidacies were never linked, the problem of endorsing someone perceived to be on the right and not someone on the left, or vice versa, made it likely theyd rise or fall in tandem.
On a Monday night in early February 1997, the senior members of the government department gathered over dinner at the faculty club for a discussion and vote on Honig and Berkowitz. Turnout was high. Both candidates had already been endorsed by subcommittees mainly comprising other theorists. Now the departments tenured members could weigh in.
The debate at the meeting was long and thorough, stretching, as one professor put it, "past my bedtime." Conversation has been described as "intense." When the dust settled, both candidates had won the support of a sizable majority of their senior colleagues. According to one professor present, about two-thirds of the department voted for Berkowitz, and of that supermajority, roughly half was "enthusiastic," half "tepid."
After being approved by the deans office, Berkowitzs candidacy headed to the ad hoc committee. The process for choosing the outside experts on this powerful committee has always been somewhat obscure. This past spring, prompted by the Berkowitz case, Associate Dean Carol Thompson (Dennis Thompsons wife) issued a memo stating that one of two associate deans handles the job. That dean considers names the department has suggested but also consults widely to find suitable experts. "The Dean [of the Faculty of Arts and Sciences] and the President," she stated in her memo, "do not take part in the committee selection process."
The morning of Thursday, April 17, the committee memberswhose names were a tightly held secretgathered in Massachusetts Hall, where Rudenstine keeps his office. The panelists had read Berkowitzs dossier, including a second batch of letters in which senior government professors laid out their views about Berkowitz. These letters can count more than how a professor votes in the departmental meeting, because one can elaborate onor even qualify to the point of retractinga vote of support. Some have suggested that these letters betrayed the mixed reviews underlying Berkowitzs numerically strong support.
The committee members heard witnesses from the department: first Shepsle, the department chair, then two advocates for Berkowitz (Mansfield and sinologist Roderick MacFarquhar) and one opponent. Each was grilled about Berkowitzs qualifications and whether he met the departments present needs. After a break, Rudenstine went around the table and asked each ad hoc committee member for an opinion. Four of the five advised that, contrary to the departments verdict, Berkowitz did not deserve tenure.
Rudenstine, of course, had the final say. At many universities today, the president simply rubber-stamps tenure decisions. But Harvard is one school where the president still takes an active role in the decision. "I spend a tremendous amount of time on the ad hoc cases," Rudenstine said in an interview. Roughly thirty times a year, he will devote a day to reviewing a candidates dossier, another half day with the ad hoc committee, and additional time deliberating. "For me," Rudenstine says, "the only fundamental reason to be in a job like this is to be on the academic end of it as much as possible. I think that appointing tenured faculty and appointing deans are the two most important things I do." With Berkowitz, he chose to accept the ad hoc committees recommendation and deny tenure; Bonnie Honigs ad hoc committee, which urged tenure, he chose to overrule.
On Sunday, April 20, at about 10 p.m., Berkowitz heard the news from Shepsle. It came as a blow but not an outrage; Berkowitz knew he faced opposition, and he recognized that Harvards "world-class" standard rendered it pointless to argue. He hung up the phone, went for a walk, had a beer, and went to bed resolving to remain unperturbed. The next morning he got up early and defiantly set to work grading papers.
The news of the tenure denials, especially Honigs, caused a furor at Harvard. Fifteen female professorsincluding psychologist Carol Gilligan, law professor Martha Minow, literary critic Susan Suleiman, and historian Laurel Thatcher Ulrichsigned a long letter lobbying for reconsideration in her case. By early May, The Harvard Crimson was running stories almost daily. Even The New York Times got into the act with an article, on May 18, 1997, describing "a firestorm of speculation and protest the likes of which has not been seen [at Harvard] in recent history."
Speculation abounded. Despite the extreme secrecy of the Harvard tenure processor, more likely, because of itall manner of stories and suggestions circulated through the academic grapevine.Word had leaked out that Honigs ad hoc committee had endorsed her, prompting uncomfortable questions about Rudenstines veto. Many of these questions focused on Rudenstines close friendship with Dennis Thompson, who was thought to have opposed Honigs candidacy as well as Berkowitzs. Johns Hopkins professor William E. Connolly, Honigs dissertation adviser, sent a letter to Thompson slyly accusing him of engaging in "back-channel communications" to sink Honig. According to another hypothetical scenario, it was Berkowitzs appointment that Thompson had really wanted to torpedo, and Honig had to go down because Rudenstine couldnt very well reject a conservative-leaning theorist and endorse a left-leaning one. Others wondered whether Thompson had used his administrative contacts to stack Berkowitzs ad hoc committee with people who, on the basis of their writings, could be safely expected to oppose someone of Berkowitzs politics.
The rumors, though purely speculative, spread, tarring Thompsons name around Harvard. To this day, some students and professors talk as if Thompsons guilt is a given, even though only the flimsiest evidence exists that he broke any rules.
Berkowitz figured hed start looking for other work. But, he recalls, "several colleagues in the government department and some outside said the decision stinks. Some said it was a bad decision; some indicated that the process in my case was defective; a few suggested that the system encouraged deal making and back stabbing." As a critic of procedural liberalism, he wouldnt have been at all surprised if the proper procedures had been manipulated by those with the opportunity to do so; the line in his New Republic review about power flowing to "the deans and the directors"clearly leveled at Gutmann, then a dean, and Thompson, a directorhad essentially predicted his own fate. Nor did he believe that he certainly "deserved" tenure, that the outcome of the decision was necessarily wrong. But if Harvards procedures had indeed been violated by behind-the-scenes dealings, he deserved another shot. As he later explained, "Lets say you have a horse race, and the gate doesnt open for the horse thats a 25-to-1 long shot. You still have to rerun the race."
Hopes for a second chance are hardly unusual for those in Berkowtizs circumstances. What was unusual in his case was that he stumbled upon the means to try to realize them. Later that spring Berkowitz attended a party at the home of his friend Martin Peretz, a Harvard lecturer and the owner of The New Republic (and in that capacity my former employer). Peretz counseled Berkowitz to consider legal action and offered to foot the bill. Over the next few months, Berkowitz thought about the idea. And while he took no action, he did let his suspicions be known, if obliquely. In September 1997, Berkowitz published another review in The New Republic, this one of a book titled Hypocrisy and Integrity: Machiavelli, Rousseau, and the Ethics of Politics. Certain passages were hard not to read in light of their authors recent experiences. "Liberal democracy," he wrote,
has given rise...to the lectern liberal. He publicly preaches respect for the rule of law while behind the scenes he pursues personal advantage through the manipulation of the procedures that have been entrusted to his care. And there is the despotic democrat. She is all for empowering the people so long as she marches at the head of the movement and is generously rewarded for her public-spirited labors. But these and other familiar figures [do not] discredit liberal democracy....[they] do not mean that integrity is impossible. They mean that integrity is indispensable.
Around the time this review appeared, Berkowitz discussed his options over dinner with another friend, Larry Lessig, a former classmate and now a Harvard law professor. Lessig, who has won fame as an expert in the new field of cyberlaw, steered Berkowitz to the same person that Peretz had: Charles Nesson.
Berkowitz was tempted. Anyone who has read Jonathan Harrs 1995 nonfiction best-seller, A Civil Action, about a high-stakes lawsuit in Woburn, Massachusetts, will remember Nesson as "Billion-Dollar Charlie." In Harrs account, an idealistic young lawyer representing eight families who have lost children to leukemia sues the W.R. Grace and Beatrice companies for polluting Woburns water supply with carcinogens. Desperate in the face of the corporations unlimited wealth, the young lawyer enlists the brilliant and colorful Nesson. Nesson convinces the legal team to seek damages far greater than theyd previously considered. As Harr tells it, Nesson dangles the possibility of a big payout before the other attorneys. "What if you took away a full year of [the companies] profits?"a sum of a half-billion dollarshe asks them. "I think that might get their attention." But as readers of A Civil Action also know, the gamble fails. The plaintiffs settle for a paltry $8 million, the young lawyer goes bankrupt, and Nesson returns to his tenured perch at Harvard Law School.
Now Nesson was being urged on Berkowitz, but, as he had all summer, the younger professor hesitated. Then, on a late-September weekend, Peretz introduced them at a party he was hosting. After an exchange of e-mails, the two men scheduled a meeting for October 6, the date Berkowitz appeared in Nessons office.
Though Nesson had long disliked the Harvard tenure system, he was not initially keen on taking Berkowitzs case. He had been devoting his time to Internet law and was up to his ears in organizing a major conference on the topic for the spring. A new crusade was the last thing he needed.
But he recalled an incident from his own past that helped change his mind. Back in 1988, the university had denied tenure to law professor Clare Dalton, a devotee of the radical and controversial field of Critical Legal Studies. Nesson had agitated for a reversal, criticizing a process that had placed in charge of Daltons case the éminence grise Archibald Cox, who embodied the very sort of traditional jurisprudence that Critical Legal Studies sought to overthrow. In a friendly conversation, Cox had said to Nesson, "Appeal." But Nesson had assumed Cox was putting him on, and ever since then he had kicked himself for not doing more.
Now, Nesson realized, he had another chance to challenge a tenure system he believed was triply flawed (at least). Harvards process was unduly secretive: letters, votes, even details about the process itself were kept confidential. It was archaic, out of step with an age in which all kinds of information was circulating on the Internet with new rapidity and ease. And it was autocratic, relying on the unreviewable fiat of a single man, the president, who was both executive and judgethereby cowing the faculty into meek silence. Berkowitz and Honig may have been political opposites, but both were outsiders getting screwed by an unfair system. "The essence of it was a conviction on hearing Peter describe the process that he went through, together with what I knew about the process from before, that it was deeply unfair. I responded more emotionally than legally in the first instance. I knew I wanted to help."
Nesson was as clueless as Berkowitz about how to appeal the decision. For advice, he steered Berkowitz to a longtime Harvard veteran deeply familiar with the universitys byways. Berkowitz and Nesson decline to identify the man, but Lingua Franca has learned that it was former arts and sciences dean Henry Rosovsky.
Rosovsky, now a member of the Harvard Corporation, the universitys top governing body, had literally written the book on Harvards tenure process; his 1990 primer, The University: An Owners Manual, explains the process at some length, if not exhaustively. On October 22, Berkowitz visited with Rosovsky from 2 in the afternoon until about 3:15. He found him engagingly gruff.
Rosovsky, while not optimistic, gave Berkowitz some reason for hope. There exists, he told Berkowitz, an obscure body called the Joint Committee on Appointments that, at least technically, holds ultimate power over tenure cases. As Jerry Green, Harvards former provost, describes it, the committee gives final approval to all promotions, appointments, and changes in title. "Its the final blessing," Green says. It meets periodically to sign off on all appointments and to relay to the Corporation and the Board of Overseers, Harvards second governing body, whats been going on. "We might ask questions about unusual cases," he says, but generally the work is pretty routine.
The news about the joint committee provided an opening. Attorney Matthew Feinberg, Nessons friend and the lawyer whom Berkowitz had retained, wrote the committee a letter, charging that in Berkowitzs case "the procedures applied at the Ad Hoc and Presidential Review violated fundamental due process." Berkowitz had heard rumors that the members of his ad hoc committee had been named with little regard to the government departments recommendations. The letter suggested that, by ignoring those recommendations, the administration had, without justification, violated the normal process. While not fingering Thompson directly, Feinberg implied that someone with an interest in torpedoing Berkowitzs candidacy might have exerted some influence on the composition of the ad hoc committee. "Critical procedures designed to assure fairness were disregarded," he asserted.
On December 29, Anne Taylor, Harvards general counsel, wrote back to Feinberg on the committees behalf, saying that she had investigated the claims and found that "there is absolutely no evidence of irregularity or unfairness." The appointments committee would take no action.
They had hit a brick wall. "They told us to go stuff it," Nesson told Berkowitz in a New Years Day conversation. But he had a backup plan.
Every year Nesson taught a class on evidence during the law schools minisemester in January. It was a class for which he was famous on campus; among other things, he would have his students watch scenes from the courtroom movie My Cousin Vinny and write about them. Why not use the evidence class to air and discuss the legal issues surrounding Berkowitzs situation and Harvards tenure process? With a team of bright, energetic Harvard law students on the case, who knew what might develop? All the evidence his class collected, he proposed, could be posted on the World Wide Web, a medium of openness and an antidote to Harvards closed-door policies. "The Internet seems to express perfectly what we stand for," Nesson said. It could deliver Berkowitzs story to a wider, potentially sympathetic audience.
Berkowitz wondered if Nessons strategy was in his best interest. It was one thing to petition the university through formal channels; it was another to turn his case into a spectacle, even a circus, that would surely rile the powers that be. He consulted with Feinberg, who also had doubts. "You put yourself out in a public way and you become a lightning rod," Feinberg says. But there were advantages, he added: Nessons students might unearth a "mother lode" of legal arguments or informationfor free. And "it might shake up the university enough to engage in a dialogue. My judgment was, so long as Peter understood the potential pitfalls, I had no problem with it." On January 3, Berkowitz gave Nesson the green light. "With eyes wide open," Berkowitz says, "I accepted the costs of proceeding in so public and unconventional a fashion."
For the next three weeks, some 144 law students gathered in the Ames Courtroom of Austin Hall each weekday morning from nine to noon and batted around questions and answers. Berkowitz presented his version of
events to the class. Teams of students built a Web site with links to law review articles[http://cyber.harvard.edu/eon/
evidence/berkowitz.html]. One group staged and videotaped a performance of hypothetical scenarios, with students acting the parts of Rudenstine and Thompson.
The case also drew the attention of more traditional media. Nessons classroom antics garnered an item in The New Yorker and mentions in newspapers. Nesson wrote an Op-Ed piece for the Crimson charging, "Our present system breeds hypocrisy and distrust, infantilizes senior faculty and allows division to fester as factions fight for favor with the father." Elsewhere, he labeled the system a "monarchy" in which a single person advised by a "star chamber" wielded absolute and unreviewable powerand noted that that monarch was almost always ill-trained to judge the candidates scholarship. Or, as he put it in an interview, "Neil Rudenstine doesnt know shit about Nietzsche."
Still, Berkowitz and his advisers faced a challenge. It was hardly clear what kind of evidence even existed. If someone had sabotaged Berkowitzs candidacy, he or she might well have done it with a wink or a shake of the head, and not with a memo. The team did not presume it could uncover proof that misconduct had occurred. Rather, it hoped to create enough suspicion that Harvards normal procedures had not been followed to compel a review.
They realized they needed, in Nessons words, "investigative help of a high order." So they made another unconventional move. Nesson turned to an old friend and one of the nations leading sleuths, a private investigator named Terry Lenzner. A graduate of Harvard and Harvard Law School, and a former member of Harvards Board of Overseers, the fifty-eight-year-old Lenzner is a storied figure in Washington, D.C. Having made his name working for the Justice Departments civil rights division in the 1960s and the Senate Watergate committee in the 1970s, he founded his own investigative firm in 1984. Tenure cases were hardly his specialty. His high-profile clients have included Mike Tyson, Brown & Williamson Tobaccofor whom he tried to dig up dirt on whistle-blower Jeffrey Wigands personal lifeand, most recently, President Clinton, who hired Lenzner to get the goods on Paula Jones and her financial backers.
Lenzners first step was to ferret out whod been on Berkowitzs ad hoc committee. Berkowitz had heard the committee was a "hanging court" from someone who had been there, but he still didnt know the identities of all its members.
Lenzner dug around and found that the panel included only one personLeon Kass of the University of Chicagos Committee on Social Thoughtwhom the department had proposed. The others, according to Lenzners findings, made an unusual lot: Jerome Bruner, a child psychologist at NYU; Ellen Kennedy, a political scientist at Penn; Isaac Kramnick, a liberal political theorist at Cornell; and Maria Tatar, a professor of German at Harvard. Mischievously, Nesson posted the names on his Web site, now titled "The Berkowitz Tenure Review."
Even those not involved with Berkowitzs case conceded that, as one senior government department professor put it, "It does seem like a very strange committee." First, none was expert on Nietzsche, the subject of Berkowitzs first book. Second, there was only one Harvard professor, not twoa break with normal procedure.
In addition, Berkowitz felt, many of the names seemed to be either potentially biased against him or unqualified to judge his work. He came up with dark scenarios to explain the appointments. Isaac Kramnick might have been a sound choice, but Berkowitz discovered that Kramnick had blurbed the book of a liberal philosopher whose work Berkowitz had attacked; might an administrator have chosen Kramnick expecting him to oppose Berkowitzs appointment? Berkowitz also knew that Harvards Maria Tatar had, that same spring, strongly supported for tenure a German department colleague of hers who wrote on Nietzsche. Didnt that make her biased as well, since Berkowitzs appointment would threaten that of her colleague? The choice of the remaining members seemed, if not sinister, at least odd. Ellen Kennedy is not primarily known as a theorist. And the presence on the committee of eighty-three-year-old Jerome Bruner, who works in a field totally unrelated to Berkowitzs, seemed to confirm that something was awry.
There was one problem with all of this. Though Harvard has not divulged this information to Berkowitz or to the public, Lingua Franca has independently learned that, contrary to Lenzners findings, Jerome Bruner was not on Berkowitzs tenure committee. The fifth panelist was actually another Jerome: Jerome Kagan, a renowned Harvard professor who is also a child psychologist. It still is odd that a child psychologist would be enlisted to judge a scholar of Nietzsche and liberalism, but Harvard frequently includes eminent professors from far-flung fields on the grounds that they understand the needs of the university. Lenzners error gave Harvard administrators grounds for privately dismissing Berkowitzs team as a bunch of Keystone Kops. (Responding to reports of such mockery, Berkowitzs team says that Harvard cant legitimately withhold facts from them while also using their ignorance against them.)
Nesson, Feinberg, and Berkowitz wrote to the appointments committee on May 26, questioning the ad hoc committees composition and asking why such leading political theorists as Michael Walzer, Jean Bethke Elshtain, Charles Taylor, Alasdair MacIntyre, and a dozen and a half other obvious choices hadnt been asked to serve. They quoted Rosovskys University: An Owners Manual as stating that Harvard seeks "the most neutral advice possible, unaffected by local friendships or prejudices" and that "no effort or expense is spared in luring the right arbiters to Cambridge." (They didnt quote a later sentence: "Still, whenas sometimes happensthe outcome displeases a department, blame will all too often be attributed to unrepresentative or allegedly incompetent committee composition.")
They also revived questions about Dennis Thompsons behavior. Thompson had told the Crimson that he played only his "usual role" in the Berkowitz decision, meaning he voted and wrote a letter for Berkowitzs dossier. "Other than writing the customary letter to the dean," Thompson said in a later interview, "I took no part in the process outside the department." By this he clearly means that he didnt have any ex parte conversations with Rudenstine or the associate dean who assembled the ad hoc committee.
But Berkowitzs May 26 letter to the appointments committee suggested that Thompson may have acted inappropriately even before the assembly of the ad hoc committee began. Referring to the government departments initial consideration of Berkowitzs case, the letter charged that it was "precisely by playing his usual role in his own departments tenure deliberations after having become associate provost that Professor Thompson impaired the integrity of the procedure." In other words, given his administrative position and close relationship with Rudenstine, it was a conflict of interest for him to participate in his departments evaluation of Berkowitz. Thompson, in the view of Berkowitz, Nesson, and Feinberg, should have recused himselfif only to maintain appearances. "I dont think Dennis acted self-consciously malevolently," Nesson says. "I do think Dennis abused his power, his close relationship with Neil Rudenstine, by the aggressiveness and vehemence with which he expressed his opinion all over the place. I think he acted unethically....The limits on Harvard are not just the technical legal limits of the law. Youve got to have an ethical center."
There is some precedent for senior administrators recusing themselves from tenure cases involving their own departments. "When I was provost," says economics professor Jerry Green, "I sat on every ad hoc committeeexcept in the economics department. In those, I absented myself." Unlike the provost, though, the associate provost has no role in tenure decisions once theyre past the departmental stage. Thus, Thompson maintains, there was no reason for him to abstain from his usual departmental role. "Faculty members who are part-time administratorsincluding [associate dean and government professor] Susan Pharr [and others]have always continued to take part in departmental meetings," he says.
Senior Harvard administrators refuse to comment on the record, citing the confidentiality of the process. But in private they, too, strenuously deny the allegations. "These are outrageous and absolutely monstrous suggestions," says one high-level official. "It is calumny. I mean, how could you disprove it?" And for all their digging, Nesson and Berkowitz have unearthed no hard proof of wrongdoing on Thompsons part, only an appearance of improprietyand a contestable one at that.
Harvard officials also defend the secrecy of the tenure process in strong terms. Anne Taylor says that while "Dennis has taken a terrible rap here, hell suck it up, and Neil will suck it up, because the larger principle is very important." That principle, the confidentiality of the tenure process, "provides people an opportunity to speak candidly. We are making lifetime appointments and want to know, Is this person the best? People are a lot less likely to speak honestly if they know their words are going to be bandied about."
But even the most justified uses of secrecy come with costs as well as benefits. Nesson points out that confidentiality can shield wrongdoing. "It offers avenues for all sorts of strands [unrelated to] the merits of a case to come into play," he says. "Real people, real lives get chewed up."
Among those lives is not just Berkowitzs but Thompsons. The extreme confidentiality of the process has created for him a double bind. On the one hand, it has allowed incomplete or even incorrect information to seep out (since maintaining absolute secrecy is always impossible), damaging his name; on the other hand, it has prevented him from repairing his reputation. Could a greater dose of the very accountability and publicity he espouses in Democracy and Disagreement help him do so?
Thompson rejects any suggestion of a disjunction between his actions and his scholarship. He points out that nothing in his book "is inconsistent with maintaining confidentiality in university decisions." Harvard is a private institution; a university is not a state; and tenure is not democratic. Still, in a chapter called "The Value of Publicity," he and Gutmann argue that any attempt to impose secrecy on a public policy or procedure should be made by means of public deliberation and should serve a clear public end. At the very least, Harvard might do well to ask whether the ntense secrecy of its tenure procedures is justified according to the modest standards that Thompson and Gutmann suggest.
If Berkowitz and Nesson have raised worthy questions about the general issues of secrecy and sunlight, what good theyve done for Berkowitz in particular is less clear. Berkowitz has been granted a one-year renewal of his contract and will teach at Harvard this coming year. Beyond that, he doesnt know.
Many colleagues who had been sympathetic to Berkowitzs plight have concluded that, starting with the highly public shenanigans of this past winterthe evidence class, the investigator, the Internethes gone too far. "Whats he doing?" asks one. "Charlie Nessons a good guy, but hes a little nutty. Everyone feels bad Peter didnt get tenure. But its over." Some suggest that Nesson has used Berkowitz as a pawn for his own purposesexploring Internet law, reforming tenureand hasnt paid enough attention to the risks for Berkowitz. They say Berkowitz should close up shop on his unattainable pursuit and get back to his high-level scholarship before he damages his good name throughout academia.
When asked whether the evidence class and Internet gambits were in Berkowitzs best interests, Nesson said, "Im not his lawyer. Im his legal adviser. Matts job is the lawyers job of representing his client with no other interests." At the same time, he emphasizes his loyalty to Berkowitz: "I keep getting messages saying that if I would sell Peter down the river Harvard would consider broader tenure reform." Nesson claims he has refused because, to reform tenure while forsaking Berkowitz would be like abolishing capital punishment after the petitioner is put to death.
Berkowitz also rejects the characterizations of himself as a helpless pawn. "Im grateful to Charlie for his energy and his enthusiasm," he says. As for getting a bad reputation in academia, Berkowitz says hes been aware since the beginning that its a risk, but one he has chosen to assume.
If Harvard wont consider an appeal, Berkowitz and his lawyers say theyll take further action. One possibility is to sue and compel Harvard to reveal secret information in court, though they say this will be a last resort. "The court system is already overburdened," Nesson says. "This should be handled within Harvard if Harvard can possibly muster the strength of character to do it." They may assemble a slate of candidates to run for positions on the Board of Overseers on a plank of tenure reformtrying to change Harvards character themselves.
In the meantime, the case remains open. Has Berkowitz really been denied a fair shot at tenure? Has Harvards tenure system (and others like it) really created such nefarious figures as Dennis Thompson, the lectern liberal, and Neil Rudenstine, the despotic democrat? Or has it simply allowed these fictions to flourish in the mind of a thoughtful scholar who has been led on a quixotic quest? Not even the combined, and considerable, efforts of the philosopher, the law professor, and the private eye have succeeded in revealing the answers.
David Greenberg, former acting editor of The New Republic, is a Richard Hofstadter Fellow in American history at Columbia University. He also writes a column for Slate.