Can an FRB investigate anything it wants, any time it wants, any way it wants?

This post is part of What Harvard says about my lawsuit (in its Motion to Dismiss).

My complaint flagged P&P provisions that I said limit the creation of an FRB to certain circumstances: allegations of “egregious behavior” or “persistent and pervasive” problems.  I said the P&P obliged Harvard to state the subject of investigation in the form of an affirmative “allegation”—a specific claim of specific misconduct, not just a general subject of possible concern.  I said the FRB was obliged to state this allegation at the outset, and I said the investigation had to stay true to that allegation, not add other topics willy-nilly.  I said the P&P obliged the FRB to actually “investigate” and draw “conclusions,” not merely report selected opinions from the statements of various persons interviewed. 

Harvard’s Motion to Dismiss argues that none of the provisions I quoted mean what they say.  Taking each in turn –

The level of (alleged) misconduct required to open an FRB

Harvard says that the “egregious” or “persistent and pervasive” thresholds for an FRB investigation don’t apply to FRB proceedings in the context of a promotion case.  Instead, Harvard says the HBS Dean may ask the FRB to investigate a candidate for promotion whenever there is “concern” about the candidate’s conduct. 

But the P&P itself says an FRB review incidental to a promotion case is to proceed “as outlined above.”  My Opposition to Harvard’s Motion to Dismiss points out that the word “above” refers back to the standard P&P rules for all FRB matters, including that an FRB investigation is authorized only by a specific allegation of “egregious” or “persistent and pervasive” problems. 

Arguing that no such allegation was needed in the promotion context, Harvard effectively admits that there was, in 2017, no allegation against me of the serious nature authorizing an FRB investigation.

The opening and expansion of the 2017 FRB

As to my complaint that the 2017 FRB offered no “allegation” at the outset of its process, Harvard points to the three broad bullets in the 2017 FRB’s opening letter to me.  These, Harvard says, sufficiently put me on notice of broad subjects the FRB might examine. 

But the FRB’s opening letter to me did not provide notice of any of the specific subjects that the FRB later examined.  Rather, by stating broad questions in open-ended terms, the FRB’s opening letter served as a blank check for the FRB to seize upon whatever interview snippets it eventually chose as supposedly indicating misconduct.  See my Opposition, page 14.

The plain language of the P&P required better.  In particular, the P&P obliged the FRB to state an “allegation” of “problematic conduct.”  The word “allegation” has real meaning: check the dictionary definition, “a statement saying that someone has done something wrong or illegal” (emphasis added).  If the FRB could state no such allegation, the P&P authorized it to proceed no further.  And if such an allegation could be stated, then the P&P required that the FRB in fact state it, in the form of an allegation and not merely an agenda or personality test.  A listing of broad questions is no substitute for a specific allegation, especially when the questions are so amorphous as to cover every aspect of a person’s character.

Harvard next says I shouldn’t have been surprised about the focus of its 2017 investigation.  But the FRB’s broad statement of its 2017 scope let them fit any plausible subject within that supposed mandate.  And I genuinely was surprised by the direction of the 2017 FRB.  The substance of the 2017 report criticizes my writings about Google in light of my prior work for Microsoft—but neither the words “Google” nor “Microsoft” appeared anywhere in the 2015 FRB report, nor in the FRB’s 2017 opening statement of what they’d be looking at.  If these subjects were as obvious as Harvard’s lawyers now claim, it’s striking that the FRB failed to mention either company at any earlier stage.  Meanwhile, the 2017 report criticizes my work as an attorney seeking refunds for consumers who were overcharged by American Airlines—continuing a line of cases I began to bring in 2005 (two years before joining the HBS faculty).  But HBS had never before criticized any aspect of this work, and indeed a senior administrator had specifically approved it when I inquired (telling me no special process was required to secure permission to serve as an attorney).  So I was rightly and reasonably surprised by the FRB’s newfound interest in these subjects.  See my Opposition, pages 14-16.

Harvard later says that if there were any gap in what they told me up front, that gap was cured by the FRB providing me what FRB calls an “ample” opportunity to respond.  Three problems with this claim.  First, the timing was far from ample.  The FRB granted me just eight days to reply to its draft report—and that, in a period when I was on parental leave.  A person disputing a parking ticket gets several times longer!

Second, the FRB denied me the opportunity to review the evidence gathered.  Withholding that evidence complicated my response, introduced ambiguity and uncertainty, and made my response more difficult.  This compounded the impact of the time crunch, and it also took the strongest responses off the table completely: No matter when my response was due, I’d be attempting to respond without knowing the core of what I was responding to.

Third, the opportunity to respond to the FRB’s draft report is quite different from being informed at the start about what the FRB would look at.  Had the FRB stated its specific subjects at the outset of its 2017 process, I would have addressed those subjects from the start, including in my opening letter that was my first and best chance to influence the FRB.  I would have had months, not days, to collect my thoughts and advance my best arguments.  For example, I could have compared my outside activities to those of respected senior colleagues, establishing that in relevant respects I was well within the norm.  And I could have established the positive public response to my prior litigation efforts, which secured tens of millions of dollars of benefits for consumers and small businesses and which were widely praised by the class members I represented.

In opposing Harvard’s argument that the opportunity to reply to a draft report cured any problem of late notice, my attorneys found an earlier Massachusetts case that’s remarkably similar.  In Bulwer v. Mount Auburn Hospital, a medical resident was the subject of a disciplinary process, but was provided a written notice of charges that merely cited “patient safety” in general terms.  The Massachusetts Supreme Judicial Court held that eventual notice of the specifics and a written reply were no substitute for being promptly informed of the specific charge at the outset.  Much the same is true here.  If anything, the procedural breach is more severe in my case: The medical resident ultimately received the specifics of the charge, albeit belatedly, and therefore could respond in substance.  In contrast, the FRB’s draft report about me provided only cryptic snippets devoid of the context I would have needed to meaningfully respond. To this day I don’t know what the twelve negative quotes were talking about or who said so. See my Opposition, pages 14-16.

The duty to “investigate” and draw “conclusions”

Harvard claims the FRB took sufficient steps to investigate the facts and weigh the evidence: Harvard says the FRB gathered relevant facts and interviewed “more than a dozen” witnesses—intimating that that number of witnesses in some way excuses the P&P violations I flagged.

But the FRB’s obligation was more than just gathering facts and conducting interviews (no matter how many).  For one, the P&P required the FRB to draw “conclusions.” If some items of evidence pointed one way, and others another, the FRB was charged with determining which was correct and whether misconduct occurred.  If critics suggested I violated a policy, the FRB was obliged to get to the bottom of it—to explain what action the policy requires in what situation; to determine whether such a situation occurred; to report whether the required action was taken.  The FRB did none of this.  See my Opposition, pages 16-17.

How do we know the FRB neither investigated nor drew conclusions?  Those who have the report can see for themselves.  For one, the FRB glaringly offered no weighing of the evidence: After summarizing quotes from both supporters and detractors, the FRB didn’t evaluate who has the better basis to judge, who knew me better, which interactions were most important, or, most fundamentally, whose quotes were correct in light of knowable facts.  Instead, the FRB merely remarked on “the depth of passion on both sides.”  That’s not a conclusion; it’s at most counting noses.  Then when the FRB turned to my outside activities, the FRB mentioned potentially-relevant policies, but offered no close reading of any policy to identify its contours or apply it to the facts at hand—not to mention engage with my analysis indicating that a key policy applied only in specific circumstances that were not present.

In parallel, the FRB’s own admissions provide particularly stark proof that it neither investigated nor drew conclusions.  The FRB report’s first paragraph expressly admits that its “process was not an investigation.”  The report continues: “We did not seek to pass judgment on the particular outside activities and work that Professor Edelman pursued.” But “investigation” is the heart of the FRB’s function.  And “passing judgment” is the essence of reaching the “conclusions” that the P&P requires.  Not only did the FRB members know they hadn’t conducted an “investigation” reaching conclusions, the gap was so large that they felt compelled to say so on the first paragraph. 

The report’s authors having admitted that there was no investigation and no conclusions drawn, Harvard’s lawyers now have to find a way to walk back these admissions.  If the FRB conducted an “investigation” after all, why did the authors say they didn’t?  If the now-purported investigation drew “conclusions,” why did the FRB say it “did not seek to pass judgment”?


The P&P calls for an organized, careful process with low likelihood of error, firm grounds for being viewed as fair, and a decent chance of actually being fair.  These benefits were particularly important to HBS faculty in the period when the FRB was introduced: Many faculty thought that then-recent allegations against two faculty members, both then-recent candidates for tenure, had been mishandled—investigated at best haphazardly, perhaps incorrectly, with severe professional consequences out of proportion both to the allegations and the evidence. 

I, at least, suspected that allegations of misconduct had become a backdoor way to torpedo a candidacy: If there’s someone you don’t like, don’t criticize their research (for substantive criticism could be opposed on the merits), but instead raise an ethics complaint (ideally one that couldn’t be easily disproved).  FRB was supposed to be the answer to this problem: a more rigorous, more trustworthy, more structured process so that surprise allegations and a kangaroo court could not derail a candidate’s career. 

Indeed, the P&P promised major progress in all these regards: by limiting the FRB’s purview to misconduct which was egregious or persistent and pervasive; by prescribing procedural protections to assure the fairness of the process; by insisting that evidence be provided both to the subject of an FRB and to anyone reading the FRB’s report.  My complaint alleges that the 2017 FRB fell short of these aspirations—no properly-stated allegation at the start, new subjects brought in at the last minute, evidence gathered yet not provided, and a report that by its own admission was not based on an investigation and did not draw conclusions. 


Ultimately, Harvard doesn’t argue that the FRB truly got it right or even that the FRB substantially followed the P&P rules.  Rather, Harvard’s core defense is that the P&P rules mean whatever Harvard now wants them to mean, and apply only to the extent and in the way that Harvard chooses. 

I’m glad that’s not what the rules say.  I’m optimistic that the court will hold Harvard to the actual P&P policy.