On February 19, 2026 I posted my reflections on the Superior Court decision granting summary judgment for Harvard and why I believe the decision was wrong. My appeal is pending in the Massachusetts Appeals Court. Briefing is now complete: Principal brief, opposition, reply.
My principal brief developed essentially the points made in my February post. I won’t repeat them here. I hope people interested in my case will review the February post and the briefs.
The Superior Court held that the FRB P&P is not an enforceable contract; that no violation could have occurred even if it is; and that violations of the promised procedural protections, if any, could have made no difference in Dean Nohria’s decision not to recommend I be awarded tenure.
As I mentioned in February, the Superior Court’s decision overlooked the promissory language of the policy’s stated procedural protections, the lack of a disclaimer that the policy would have the force of contract, and—most important—evidence that Harvard’s purpose in creating the policy was to foster greater trust among the faculty in the fairness of its process for evaluating suitability for tenure. The Superior Court instead made findings in favor of Harvard on all these fronts. In a remarkable 17 separate instances (cited in my principal brief on page 29), the Superior Court declared what reasonable faculty necessarily would or would not expect, know, recognize, etc. Harvard’s brief largely repeats the lower court’s reasoning and equally overlooks the policy’s promissory language, the lack of a disclaimer, and HBS’s purpose to foster trust. But this is improper for summary judgment, where reasonable inferences are to be drawn in favor of the party against which summary judgment is granted.
In holding that violations could have made no difference, the Superior Court relied on an eleventh-hour affidavit from then-Dean Nohria stating he could have reached his decision not to recommend tenure based solely on two factors—supposed problems with my disclosure of prior work for Microsoft, and my prosecution of a consumer class action against American Airlines. (This is a convenient argument for Harvard because the other part of the FRB’s 2017 report—anonymized decontextualized criticisms from HBS faculty and staff—is tainted for failing to provide “the evidence required” as the FRB Procedures require, not to mention tainted further because the FRB artfully excerpted quotes and fabricated two supposed quotes not found in interview notes.) But reliance on those two factors has at least three problems:
- In crediting Nohria’s affidavit, the Superior Court overlooked Nohria’s contemporaneous statements (to me, to then-President Faust, and to the Appointments Committee senior faculty), his deposition testimony, and Harvard’s Interrogatory answer. These sources all make much the same point—as Harvard put it in its rog answer, that Nohria’s decision was “chiefly” based on my not having won a stronger super-majority of votes in the Appointments Committee. The timing is striking: At the time, Nohria said the AC vote was what mattered. Early in litigation, when Harvard answered interrogatories, it said the same. Only on the eve of summary judgment, facing growing evidence of problems with the first part of the 2017 FRB report, did Harvard begin to claim that Nohria’s decision was, or could have been, based on only the second half of the report.
- The Superior Court overlooked evidence that my favorable vote in the Appointments Committee was pulled down by aspersions in the FRB report which I was unable effectively to rebut because the FRB withheld “the evidence gathered.” Had the FRB followed its rules, the Appointments Committee vote would have been different, and would have reached a level at which all previous candidates received favorable recommendations.
- Much as Harvard wants to claim soundness of the second half of the 2017 FRB report, it is not. While the FRB called my disclosures “inconsistent,” in fact I was entirely consistent—providing excellent disclosure of my work for Microsoft while it was underway. (Indeed, my disclosures were more prominent than any HBS policy required, and years before any HBS policy even applied.) Plus the FRB’s criticism of specific disclosures was beyond messed up—failing to uncover that one disclosure was written not by me but by a HBR editor to whom I provided all relevant information; that another disclosure pertained only in passing to Google, and even then to the early practices of a company Google acquired years later; that a third article had a disclosure within a PDF (whereas the FRB examined only the disclosure on the publisher web page linking to the PDF); and other problems too (affidavit paragraphs 17-22). A fair look at all of this would have found me at least consistent with disclosure practices of other HBS faculty. Meanwhile, there was nothing wrong with my filing the American Airlines lawsuit—which resolved quickly, obtained millions of dollars of benefits to passengers and, contrary to the FRB’s speculation, got zero negative publicity.
Harvard’s appellate brief repeats the Superior Court’s reliance on Nohria’s affidavit as dispositive on the issue of motivation, ignoring evidence to the contrary. Harvard’s brief overlooks case law recognizing that summary judgment is rarely appropriate on issues of intent or motivation.
The Superior Court’s grant of summary judgment based on a cascade of inferences in favor of Harvard, contrary to other evidence, is strikingly similar to another recent case in which the same judge similarly foreclosed trial of potentially-meritorious claims against Harvard—litigation about a Harvard Medical School morgue manager who sold body parts. As a basis for dismissal, the Superior Court there misdescribed that complaint as alleging merely that Harvard “knew or should have known” of the morgue manager’s misconduct, thus legally insufficient to assert the “particularly pervasive noncompliance” required to overcome the good-faith defense in Massachusetts law pertaining to anatomical gifts. But plaintiffs had alleged far more, including Harvard ignoring or tolerating the morgue manager’s unprofessional conduct through acts as brazen as a “Grim-R[eaper]” license plate as well as bringing unauthorized people into the morgue to inspect and purchase body parts. On appeal, the Massachusetts Supreme Judicial Court recognized that the allegations—including known risks and lack of controls—far exceeded the lower court’s watered-down description. Weiss, 496 Mass. at 686. In foreclosing potentially meritorious claims in my case, the lower court in my case committed much the same error. I was struck by the many similarities—same judge, same defendant (Harvard) represented by the same firm (Manatt) and partner (Martin Murphy), and most fundamentally the same flawed reasoning (watering down facts, including ignoring the most colorful incriminating facts, to favor the party against whom the motion was to be granted). It was gratifying to see the SJC correct the Superior Court’s error in the morgue manager case.
Aaron Greenspan, best known as one of the founders of Facebook, now runs a judicial records system, PlainSite—which both preserves court documents and, for select cases, runs remarkable AI to evaluate decisions. Evaluating the Superior Court ruling in my case, PlainSite offered a stinging critique, grading the decision 14/100 with headline “wrong outcome” due to the court incorrectly deciding a question of fact that belongs to a jury. I agree with most of PlainSite’s analysis. It’s remarkable to see AI approach the question fresh, with full access to the briefing and evidence—and reach conclusions so close to my own. I hope the Massachusetts Appeals Court will do the same.