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PETER BERKOWITZ vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE

Docket No.:  00-0956

County: MIDDLESEX, ss.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION OF DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND COMPLAINT

INTRODUCTION

Plaintiff Peter Berkowitz (Berkowitz) filed the present action against defendant President and Fellows of Harvard College (Harvard) alleging breach of contract in connection with Harvard's review of his grievance of the denial of his application for tenure in the Department of Government. In a Memorandum of Decision and Order dated August 23, 2000, this court denied Harvard's motion to dismiss the complaint for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6). Harvard now moves under Superior Court Rule 9D for reconsideration of its motion to dismiss based on the Supreme Judicial Court's decision in Schaer v. Brandeis University, 432 Mass. 474 (2000). In response, the plaintiff has moved for leave to amend his complaint pursuant to Mass. R. Civ. P. 15(a). For the reasons discussed below, the plaintiff's motion to amend is ALLOWED and the defendant's motion to dismiss the amended complaint is DENIED.

BACKGROUND

Berkowitz joined Harvard's Department of Government as an Assistant Professor in 1990 and was promoted to Associate Professor in 1994. In October of 1996, the Department of Government initiated a review of Berkowitz's candidacy for tenure. Harvard's tenure review procedures are set forth in the Teaching Appointments section of the Handbook for the Faculty of Arts and Sciences of Harvard University (the Handbook). According to the Handbook, the candidate's respective department performs an intial review of the candidate and votes whether torecommend tenure. An Ad Hoc Committee, comprised of several scholars from outside of Harvard and two tenured faculty members from outside of the candidate's department, then reviews the candidate and makes a recommendation. The final tenure decision is made by the president of Harvard after meeting with the Ad Hoc Committee.

Appendix X of the Handbook contains Guidelines for the Resolution of Faculty Grievances (the Guidelines) to be followed when an aggrieved candidate seeks review of a denial of tenure. Pursuant to Section one of the Guidelines, the faculty member must first take the matter to the appropriate department chair. Under Section two, the faculty member consults with the Associate Dean for Academic Affairs. If the matter remains unresolved, the faculty member may then file a formal grievance under Section three of the Guidelines and obtain a preliminary screening by the Docket Committee, which consists of elected faculty members. The Docket Committee decides if the faculty member's complaint is "clearly without merit" and reports its findings to the Dean. If the Docket Committee concludes that a complaint is clearly without merit, the complaint is dismissed. If the grievance is not dismissed by the Docket Committee, it proceeds to Section four of the Guidelines, under which an Ad Hoc Grievance Panel performs an investigation. The Ad Hoc Grievance Panel consists of three individuals: one selected by the grievant, one selected by the relevant department chair, and one selected by the Docket Committee.

In February of 1997, the Department of Government voted in favor of recommending Berkowitz for tenure. Thereafter, an Ad Hoc Committee reviewed Berkowitz's application for tenure. In April of 1997, the president of Harvard rejected the Department of Government's recommendation and denied tenure to Berkowitz. Berkowitz then initiated the grievance process pursuant to the Guidelines, and his grievance passed through the first two tiers of review. On January 6, 1999, Berkowitz filed a thirty-eight page grievance letter with the Department of Arts and Sciences alleging a variety of flaws in the process through which the president reached his decision to deny Berkowitz tenure. In accordance with the procedure set forth in the Guidelines, the Dean forwarded the grievance to the Docket Committee. The Docket Committee reviewed Berkowitz's grievance and determined that it was "clearly without merit." Accordingly, Berkowitz's grievance was dismissed and never reached the Ad Hoc Grievance Panel. On May 28, 1999, the Docket Committee sent Berkowitz a nine page decision letter explaining its determination.

In a final effort to exhaust all possible institutional remedies, Berkowitz wrote to Harvard's Joint Committee on Appointments in July of 1999 and to the Faculty Council in September of 1999, alleging that the Docket Committee mishandled his grievance and requesting a review of the grievance and appointment of an Ad Hoc Grievance Panel. These efforts proved unsuccessful.

Thereafter, on March 3, 2000, Berkowitz filed the present complaint alleging that the Docket Committee's handling of his grievance constituted a breach of contract as well as a breach of a common law duty to comply with its own procedures. Specifically, Berkowitz alleged that the Docket Committee violated 3 of the Guidelines by misapplying the "clearly without merit" standard to his grievance, which asserted meritorious claims of bias, conflict of interest and lack of expertise on the part of various members of the Ad Hoc Committee which reviewed his tenure application. In addition, Berkowitz alleged that the Docket Committee exceeded its authority and usurped the role of the Ad Hoc Grievance Panel by conducting an investigation of his grievance rather than a mere preliminary screening.

Harvard then moved to dismiss Berkowitz's complaint pursuant to Mass. R. Civ. P. 12(b)(6) on the ground that it failed to state a claim for which relief could be granted. For purposes of said motion, Harvard conceded that the Handbook, including the Guidelines, constitutes a contract between the parties. In a Memorandum of Decision and Order dated August 23, 2000, this court denied Harvard's motion to dismiss on the ground that the complaint adequately alleged that Harvard had failed to follow its own procedures in reviewing Berkowitz's tenure grievance. In denying the motion, this court relied on Schaer v. Brandeis University, 48 Mass. App. Ct. 23 (1999), a case in which a student alleged a breach of contract based on procedural defects in a disciplinary hearing conducted by the university. This court cited Schaer for the proposition that the court has authority to review a decision of a university committee for procedural violations, and for the further proposition that a complaint alleging that a university improperly applied the relevant standard to an academic decision should not be dismissed under Rule 12(b)(6) where it was not clear what the articulated standard meant and how the university had in fact applied it.

Harvard now moves for reconsideration of the denial of its motion to dismiss based on the Supreme Judicial Court's decision in Schaer v. Brandeis University, 432 Mass. 474 (2000), which reversed the Appeals Court's decision and concluded that the student's allegations were insufficient to state a breach of contract claim with respect to procedural violations by the university.

DISCUSSION

Superior Court Rule 9D authorizes a judge to hear motions for reconsideration. Where there has been no material change in circumstances, a court is not bound to reconsider a case, issue or question of law once decided. King v. Globe Newspaper Co., 400 Mass. 705, 707, cert. den., 485 U.S. 940 (1987); Peterson v. Hopson, 306 Mass. 597, 599 (1940). The court should exercise its power to reconsider an interlocutory ruling only where there are compelling reasons to do so. King v. Globe Newspaper Co., 400 Mass. at 707-708; Peterson v. Hopson, 306 Mass. at 603. Harvard contends that reconsideration of its motion to dismiss is warranted by the reversal of the Schaer decision on which this court relied. Because the Supreme Judicial Court's decision arguably raises the standard of specificity of pleading required to survive a Rule 12(b)(6) motion with respect to an allegation of breach of contract in the academic decision-making process,(1) this court will take a fresh look at Harvard's motion.

The Supreme Judicial Court Decision in Schaer

In Schaer, a student filed a complaint for breach of contract against Brandeis University alleging that the university failed to follow its own procedures, as set forth in its student handbook, when disciplining him. Schaer v. Brandeis University, 432 Mass. at 476. Brandeis moved to dismiss the complaint under Rule 12(b)(6) on the ground that Schaer's allegations, even if true, failed to state a claim that the university failed to meet his reasonable expectations under the student handbook. Id. at 478. The Supreme Judicial Court noted that courts are chary about interfering with academic and disciplinary decisions made by private colleges and universities. Id. at 482. However, it also reaffirmed the principle that as a matter of contract, universities are required to follow their own established procedures, which the court will interpret using a standard of reasonable expectation: what meaning the party making the manifestation, the university, should reasonably expect the other party to give the contract. Id. at 478.

The court concluded that Schaer's allegations concerning defects in Brandeis' investigation of a rape complaint against him did not state a claim for breach of contract because nothing in the student handbook explicitly required the university to undertake such steps as interviewing the accused student and seeking evidence from him. Id. at 479. Similarly, Schaer's allegation that Brandeis violated a provision of the handbook requiring a record of the disciplinary hearing by providing only a twelve line summary of the evidence given by thirteen witnesses failed to state a claim because the handbook did not require the record to be of any minimum length. Id. at 480.

Finally, the court stated that Schaer's allegation that Brandeis misapplied the handbook's "clear and convincing evidence" standard to the charges against him was not a factual allegation but a legal conclusion which the court was not required to accept as true for purposes of a Rule 12(b)(6) motion. Id. at 479. "It is only when . . . conclusions are logically compelled, or at least supported by, the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability, that ?conclusions' become ?facts' for pleading purposes." Id. The court concluded that Schaer failed to state a claim of breach of contract because his complaint contained no facts specifically supporting the allegation that the university did not apply the "clear and convincing" standard. The Supreme Judicial Court thus affirmed the trial court's dismissal of Schaer's complaint under Rule 12(b)(6). Id. at 482.

Berkowitz's Motion to Amend

Harvard now seeks reconsideration of this court's denial of its motion to dismiss on the ground that Berkowitz's complaint fails to state a claim for breach of contract under the Supreme Judicial Court's decision in Schaer.  In response to Harvard's motion for reconsideration, Berkowitz has moved to amend his complaint to detail the basis for his breach of contract claim with respect to the Docket Committee's conduct, and to add a breach of contract claim based on Harvard's failure to assemble a short list of scholars comparable to him in career stages as required by I.C of the Handbook. Leave to amend pleadings pursuant to Mass. R. Civ. P. 15(a), although within the discretion of the judge, should be granted unless there appears good reason for denying the motion. Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 549 (198); DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77 (1994). Such reasons include undue delay, bad faith or dilatory tactics by the movant, prejudice caused by the imminence of trial, and the futility of the proposed amendment. Goulet v. Whitin Machine Works, Inc., 399 Mass. at 549-550. Harvard has not presented any evidence of bad faith or dilatory tactics by Berkowitz, nor has it demonstrated that it would be prejudiced by amendment of the complaint at this stage of the proceedings or that the amendment would be futile.

Harvard argues that Berkowitz should not be allowed to amend the complaint to add the "short list" claim because he never raised such a claim during the university grievance process and therefore has failed to exhaust his remedies with respect to such a claim. See Brennan v. King, 139 F.3d 258, 270 (1st Cir. 1998) (concluding that a professor alleging breach of contract in connection with a denial of tenure must pursue the grievance procedure outlined in his employment contract before filing a contract claim in court). The parties do not dispute that at the time of his grievance, Berkowitz was unaware of any defect in the composition of the short list because Harvard kept the identities of the scholars on the list confidential. In light of this court's conclusion, discussed infra, that the remainder of the amended complaint states a claim, it would be impractical to dismiss the short list claim and would elevate form over substance to require the parties to engage in the grievance process at this time with respect to that claim. Accordingly, this court, in its discretion will allow Berkowitz's motion to amend the complaint and will consider Harvard's motion to dismiss, as addressed to the amended complaint, in light of the Supreme Judicial Court's decision in Schaer.

Harvard's Motion to Dismiss the Complaint under Schaer

When evaluating the sufficiency of a complaint under Mass. R. Civ. P. 12(b)(6), the court must accept as true the well pleaded factual allegations of the complaint as well as any inference which can be drawn therefrom in the plaintiff's favor. Schaer v. Brandeis University, 432 Mass. at 477-478; Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). In addition, the court may consider matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint. Schaer v. Brandeis University, 432 Mass. at 477. The "court may grant the radical relief of dismissal only if the plaintiff can set forth no set of facts which would entitle him to relief." Caraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 147 (1993).

For purposes of the motion to dismiss, Harvard concedes that the Handbook, including the Guidelines, constitutes a contract between the parties. This court must thus examine the amended complaint to determine whether Berkowitz has asserted facts which, if true, establish a breach of this contract; i.e., that Harvard failed to meet those expectations which it should reasonably expect professors such as Berkowitz to have under the Handbook. See Schaer v. Brandeis University, 432 Mass. at 478; Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983); Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. den., 435 U.S. 971 (1978). This court will first address Counts III and IV of the amended complaint, which embody the allegations contained in the original complaint.

Berkowitz alleges that the Docket Committee violated 3(b) of the Guidelines, which provides:

The Dean shall promptly acknowledge receipt of the written grievance and submit it to the elected members of the Docket Committee of the Faculty for preliminary screening. This group is empowered to dismiss the complaint if it is found to be clearly without merit.

Berkowitz alleges that the Docket Committee exceeded its authority and usurped the role of the Ad Hoc Grievance Panel by conducting an investigation of the merits of his grievance rather than a mere preliminary screening. The Guidelines neither define the term "preliminary screening" nor set forth the scope of the Docket Committee's duties. However, the common meaning of "preliminary" is "coming before and leading up to the main part of something," Black's Law Dictionary (7th ed. 1999), while the common meaning of the term "screen" is "to separate, as the coarse part of anything, from the fine, or as the worthless from the valuable." Webster's New Universal Dictionary (2d ed. 1979). See Lyons v. Salve Regina College, 565 F.2d at 202-203 (applying common meaning to a term in a contract between a college and its students). The Docket Committee's nine page decision letter indicates that the Committee went beyond briefly examining Berkowitz's grievance for arguable merit, "gather[ing] additional information that we felt was necessary for us to reach a decision," including consulting with independent legal counsel, interviewing "several people who could help us gather the information necessary to acquaint us with the customs and traditions that were applicable to the issues you raised," and meeting with Berkowitz himself.

Harvard contends that because Section 3(b) is silent with respect to the specific procedures to be followed by the Docket Committee in screening a grievance, Harvard would not reasonably expect professors such as Berkowitz to believe that it was beyond the Docket Committee's authority to conduct a lengthy investigation into the merits of a grievance. See Schaer v. Brandeis University, 432 Mass. at 479 (concluding that a student could not reasonably expect certain procedures with respect to the university's investigation of a rape complaint against him where nothing in the student handbook explicitly required the university to undertake such steps). Although the Guidelines do not circumscribe the Docket Committee's duties in screening a grievance, they explicitly state that if a grievance is not dismissed by the Committee, the Dean must appoint an Ad Hoc Grievance Panel to "conduct an inquiry in an informal manner, providing for the orderly and careful consideration of all points of view." The Guidelines further specify procedures to be followed by the Grievance Panel in conducting its inquiry, including allowing the grievant to appear before it, accompanied by a faculty advisor but not legal counsel; obtaining access to confidential documents; preparing a draft report summarizing the relevant evidence and circulating the draft to the parties and the Dean for comment; and preparing a final draft summarizing the Panel's conclusions and reasons.

Given that the Guidelines clearly distinguish between the preliminary screening duty of the Docket Committee and the more involved duty of inquiry of the Ad Hoc Grievance Panel, Harvard should reasonably expect Berkowitz to believe that the Grievance Panel, not the Docket Committee, was the body which would investigate, in detail, the merits of his grievance. Thus, the allegation in the amended complaint that the Docket Committee exceeded its authority by conducting a five month investigation into Berkowitz's grievance, including taking evidence from various individuals as to the relevant customs and traditions, states a claim for breach of contract sufficient to withstand a Rule 12(b)(6) motion.

Berkowitz further alleges that the Docket Committee misapplied the "clearly without merit" standard by deciding the actual merits of his grievance rather than determining, based only on the face of the grievance, whether its merits were fairly debatable. Harvard contends that under Schaer, a plaintiff does not state a justiciable claim by alleging that a university misapplied the standard of review set forth in the parties' agreement; rather, a plaintiff states a claim only by alleging that the university acted arbitrarily or capriciously in handling the grievance. This court does not read Schaer as placing beyond judicial review a university's failure to apply a standard articulated in its handbook. Rather, the Supreme Judicial Court concluded that the student in that case failed to state a breach of contract claim because his complaint contained no specific facts to support the allegation that the university did not apply the "clear and convincing" standard set forth in the student handbook. See Schaer v. Brandeis University, 432 Mass. at 482.

In the present case, the Guidelines do not define the standard "clearly without merit." However, based on the clear distinction in the Guidelines between the preliminary screening duty of the Docket Committee and the more involved duty of investigation of the Ad Hoc Grievance Panel, Berkowitz's interpretation that the Docket Committee is to examine the grievance and determine only whether, on its face, it is frivolous or has arguable merit is a reasonable one.(2) The amended complaint alleges that Berkowitz's grievance asserted that some members of the Ad Hoc Committee were biased because of their close association with a high-ranking member of Harvard's administration who opposed his bid for tenure, violating the requirement in Section I.G of the Teaching Appointments section of the Handbook that tenure candidates be judged "strictly on their merits." The amended complaint further alleges that his grievance asserted that the Ad Hoc Committee contained no specialists in his field, violating the requirement in Section I.G that the Committee be comprised of 3 or 4 scholars, generalists as well as specialists, from outside the University. Finally, the complaint alleges that Berkowitz's grievance asserted that Associate Provost Dennis Thompson failed to recuse himself from participating in the tenure process despite customs and traditions requiring him to do so and despite having a conflict of interest by virtue of the fact that his wife, Associate Dean for Academic Affairs Carol Thompson, also had responsibilities related to tenure review. These are specific facts which, if true, suggest that Berkowitz's grievance raised non-frivolous issues, supporting the alleged legal conclusion that the Docket Committee misapplied the "clearly without merit" standard in dismissing his grievance. Thus, Counts III and IV of the amended complaint adequately state a claim that Harvard failed to meet those expectations which it should reasonably expect professors such as Berkowitz to have under the Handbook. See Schaer v. Brandeis University, 432 Mass. at 479.

Counts I and II of the amended complaint allege that Harvard violated I.C of the Handbook, which provides:

The department evaluates relevant scholars and ordinarily reduces the number to a short list of 5 or 6 leading contenders who, as much as possible, are comparable in ability, distinction, and career stages.

Berkowitz alleges that Harvard failed to meet his reasonable expectations under the Handbook by compiling a short list of scholars who were more advanced in their careers than he and thus were not comparable to him. He alleges that Harvard's failure to comply with I.C had a significant negative impact on his candidacy because of the importance of short list rankings in the tenure process. Harvard contends that these allegations fail to state a claim upon which relief can be granted because they involve the comparability of various scholars, the type of subjective academic judgment in which courts traditionally refuse to become involved. See Schaer v. Brandeis University, 432 Mass. at 479; Fields v. Clark Univ., 966 F.2d 49, 54 (1st Cir. 1992), cert. den., 506 U.S. 1052 (1993); Vargas-Figueroa v. Saldana, 826 F.2d 160, 163 (1st Cir. 1992). However, Berkowitz is challenging the comparability of the career stages of the other scholars on the short list, a measure which is largely objective and which may not inappropriately involve the court in the realm of academic discretion. Accordingly, Counts I and II of the amended complaint adequately state a claim for breach of contract that Harvard failed to meet those expectations which it should reasonably expect professors such as Berkowitz to have under I.C of the Handbook. See Schaer v. Brandeis University, 432 Mass. at 479.

ORDER

For the foregoing reasons, it is hereby ORDERED that plaintiff's motion to amend the complaint be ALLOWED. It is further ORDERED that the defendant's motion to dismiss the amended complaint pursuant to Mass. R. Civ. P. 12(b)(6) be DENIED.

Raymond J. Brassard

Justice of the Superior Court

DATED: January , 2001

Footnotes

(1)See Schaer v. Brandeis University, 432 Mass. at 485-488 (Cowin, J., dissenting).

(2)The Docket Committee's decision letter (like Berkowitz's grievance letter) is thoughtful and thorough and evidences a careful inquiry undertaken in good faith; nonetheless, it appears that Berkowitz has adequately alleged that the Committee went beyond applying a "clearly without merit" standard and made a determination, after an investigation, that Berkowitz's grievance in fact lacked merit.

end of document

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