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University must surrender its tenure committee minutes in discovery - PETER BERKOWITZ vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE

Brief by Thomas McLean, M.D., J.D.

Berkowitz v. Harvard College, Docket # 00-0956 (Middlesex Mass.) After being denied tenure by the president of the university despite the recommendations of his department chairman, Berkowitz sought adjudication pursuant university grievance guidelines. After his 38 page grievance letter passed through the first two-tiers of review it was passed on to the Docket Committee whose sole function was to determine if the grievance was "clearly without merit." The Docking Committee then initiated an investigation, and concluded that Berkowitz's claim was without merit.

The University demurred that its Handbook was part of the contract between parties. Berkowitz alleged that the Docking Committees handling of his case was a breach of contract as well as a breach of the common law duty of the university to comply with its own rules. Specifically, Berkowitz alleged that the Docking Committee had exceeded its authority and usurped the role of the Ad Hoc Grievance Panel by conducting an investigation rather than merely screening his application for merit. Harvard's motion for summary judgment was denied based on Shaer v. Brandeis University,48 Mass. App. Ct. 23 (1999). When the Supreme Judicial Court overturned this case later in the year (432 Mass 474 (2000)), Harvard moved for reconsideration.

Shear involved the disciplinary handling of a student accused of rape. In contradistinction to Brandeis' Handbook (the university also allowed that its handbook was part of the contract) Shear was suspended without receiving all of the Handbooks procedural safeguards. On appeal, the court held a "college must have broad discretion in determining the appropriate sanctions for violations of its policies." Accordingly, a  "university does not have to adhere to the standards of due process guaranteed to criminal defendants or abide by the rules of evidence adopted by the courts." However, the Berkowitz court distinguished its case from Shear based upon a Shear's lack of evidentiary consideration and the fact that in Berkowitz situation, the Associate Provost who had a conflict of interest because his wife oversaw the tenure process, had failed to recluse himself.

The Berkowitz court observed that the Harvard Handbook assigned to the Docking Committee only a "preliminary screening" function. Because the common meaning of "preliminary" is coming before the main part and the common meaning of "screening" is to separate the court concluded that the Docking Committee's nine page review of Berkowitz's grievance went far beyond preliminary screening. Moreover, while the handbook did not circumscribe the Docking Committee's duties, it explicitly stated that if a grievance is not dismissed the Dean was to appoint an Ad Hoc Committee to conduct an investigation. Therefore the Docking Committee had misapplied the "clearly without merit" standard, with contemplates only a facial review, by deciding the case on its actual merits. The court then cleared the way to allow Berkowitz to proceed with his amended complaint.

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