Category: Motion to Dismiss

In May 2023, Harvard filed a Motion to Dismiss my lawsuit.  Harvard argued that universities have wide discretion to make tenure decisions, and claimed that I was incorrect in my allegations of violations of the governing policy.  Meanwhile Harvard did not concede that its P&P policy is a contract that it must follow.

This week the Massachusetts Superior Court denied all of Harvard’s arguments.  And the Court correctly treated the P&P policy as the contract that it plainly is.  My case will proceed.

The next step is discovery.  I’m particularly looking forward to discovery because Harvard has withheld so much information from me.  For example, the governing policy required Harvard to provide me (as well as readers of the report about me) “the evidence gathered” by the investigating committee.   But Harvard did nothing of the kind, instead resorting to anonymous quotes entirely without context.  Now that I am entitled to discovery, I will demand the entire corpus from which these quotes were taken.  That will certainly include all the notes prepared by the investigating committee.  It should also include full interview recordings.  With this information, I will no longer have to speculate about what these speakers might have been talking about.  At long last, I will be able to say for sure – putting me on track to defend myself in substance and without resorting to hypotheticals.

I will also seek the written tally sheets on which members of the HBS Appointments Committee (all senior faculty and fully-engaged emeritus faculty) evaluated my case.  These tally sheets give each person’s contemporaneous statement of the basis for their vote.  The tally sheets will therefore reveal what the Appointments Committee learned (or thought they learned) from the FRB report about me, versus what they found from other independent sources not the subject of my lawsuit.  No doubt Harvard would prefer to keep faculty notes confidential.  But see Theidon v. Harvard Order on Defendant’s Motion for Protective Order and Plaintiff’s Motion to Compel, requiring Harvard to produce letters from outside letter-writers evaluating a candidate’s research.  That Court remarked “there is no privilege against the disclosure of tenure peer review materials” and further pointed out that the litigant needs these documents to prove her case.  So too for me.

I’m not perfect.  But I don’t have the flaws alleged in the 2017 FRB report about me.  The Appointments Committee faculty who judged my case based on that flawed report were provided incorrect facts about me, and their misinformed votes were pivotal to the failure of my promotion to tenure.  With the benefit of discovery, I will prove every link of the logic: I will establish not just that the report didn’t follow the promised procedure but that it was actually incorrect, and I will show how the faulty report influenced Appointments Committee members. 

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”?

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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. 

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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.

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

Among the P&P’s provisions is a commitment, repeated twice for emphasis, that the subject of an investigation—and all readers of any resulting report—receive “the evidence gathered.”  The P&P first states that the draft FRB report “should include the evidence gathered.”  It then remarks that “the faculty member … will have an opportunity to review… the evidence gathered and the draft report.”

Notably, the P&P indicates that “the evidence gathered” is to be complete. For one, the word “the” refers to all of the evidence, not just a portion.  Meanwhile, the word “gathered” means that the evidence must be provided in its entirety. Hence the FRB must provide both those sources that the FRB relied on, and also those that it gathered (or otherwise received) but for whatever reason did not rely on.  The FRB can’t keep its preferred portions, excerpts, or snippets, and delete or bury the rest.

In its Motion to Dismiss, Harvard offers three counterarguments.  Taking each in turn –

Harvard says it did provide the evidence

Harvard says “the draft report did include the evidence gathered” in that it quotes partial remarks from various interviews the FRB conducted.  I’m surprised Harvard even attempts this claim because it’s glaringly incorrect.  In this digital age, “the evidence gathered” would typically include emails.  But did the FRB report actually include any emails?  Maybe something rude I once wrote in a hurry, or some criticism from a student or even an alum?  Nope, not one.  My complaint says the FRB conducted interviews and discussed those interviews in its report, so “the evidence gathered” should include a list of who was interviewed and any available records of what they said (a recording, a transcript, or at least some notes)—but, no, there’s none of this either.  Nor was I otherwise given access to any evidence in order to be able to respond.  In fact the only attachments to the 2017 FRB report were the FRB’s correspondence with me.  That’s plainly not “the evidence” that P&P promised to provide to any subject of an FRB investigation. 

Harvard’s Motion to Dismiss points out that parts of the FRB report provide snippets of evidence, such as quotes from some interview subjects.  But these quotes are the briefest of brief: Of the twelve derogatory quotes in the FRB report, nine consist of a single sentence, and the longest is 32 words.  Each quote was plainly taken from a broader interview—yet FRB didn’t tell me or other readers who was interviewed, or what subject or context the speaker was discussing.  My complaint alleged that all interviews were recorded and that FRB members took notes.  (The FRB recorded all its discussions with me, plus members took notes as we spoke.  I have no reason to think they kept lesser records for others they interviewed.)  When the FRB records an interview, the recording necessarily becomes part of “the evidence gathered.”  And when FRB members take notes, those notes are similarly “evidence gathered.”  Perhaps Harvard leaders regret promising to share that evidence, but promise they did.

My full arguments on this subject are in my Opposition to Harvard’s Motion to Dismiss, especially pages 10-13.

Harvard says the P&P didn’t require recording or transcribing interviews

Harvard says the P&P didn’t require the FRB to record or transcribe witness interviews.  True but irrelevant, and my complaint claimed nothing the contrary.  Once the FRB decided to record interviews and take notes, those recordings and notes became part of “the evidence gathered,” which the P&P calls for providing to the subject of the report and other authorized readers.  Notably Harvard doesn’t deny that it compiled documentation of its interviews (whether in the form of recordings, notes or transcripts), nor does Harvard deny that it retains other documents such as emails.

Relatedly, Harvard says nothing in the P&P guaranteed me the right to “litigation style discovery.”  But I didn’t seek the benefits available in litigation, such as cross-examining witnesses or demanding production of documents not gathered by the FRB.  All I sought was what the P&P did promise, namely that whatever evidence the FRB gathered, I’d get it too in order to be able to respond. See my Opposition, pages 12-13.

Harvard’s broader theme is that my request for recordings, transcripts, and other evidence is in some way extraordinary.  Not so.  If a bank denies a person’s credit card application, the bank is required by law to provide the reason including the underlying credit report.  Surely decisions about my career deserve at least as much care as a credit card application.  Meanwhile, circulating evidence is routine in other HBS processes.  I well remember instances in which HBS leaders brought serious disciplinary charges against MBA students.  In preparation for those discussions, faculty were asked to read a binder of evidence and analysis—with a second binder of appendices available for those who wanted additional detail.  Binders of evidence were appropriate then, and sharing the evidence was at least as appropriate for the investigation about me.  Yet when it came time for the 2017 FRB report about me, somehow the FRB saw fit to attach not a single interview transcript, not a single email, and not any other evidence either.  That’s not right, not normal for HBS, and most fundamentally, not permitted by the P&P.

Harvard says the evidence it provided should be accepted as sufficient

Harvard says the FRB report’s evidence should be accepted as sufficient in light of the P&P’s statement that the FRB process is to be flexible.  But the P&P’s general endorsement of flexibility does not negate the specific procedural commitments the P&P lays out in detail.  Any flexibility must be in areas where the P&P is silent or ambiguous, not in areas where the P&P promises a particular protection such as the right to review the evidence gathered.  See my Opposition, pages 11-12.

Meanwhile, I vigorously disagree that the FRB’s (non)evidence can be deemed sufficient.  Imagine if each of the derogatory quotes had included information about who said it and what they were talking about.  Maybe six of the comments came from the same person.  Maybe three came from the very administrators who said “it can’t be done” when I said I’d build software to enable a sight-impaired faculty member to see which students wanted to participate in class discussion.  Maybe the person who said “his preferred solution can’t or won’t be implemented” was talking about a solution I suggested that ultimately was implemented, and to considerable acclaim at that.  Maybe maybe maybe.  The FRB forced me to speculate about the sources and context of the quoted snippets.  I’m confident that I could have mustered a far stronger reply had I been provided the specific evidence gathered.  The P&P promised me at least the opportunity to try.

As supposed justification for not letting me see the evidence gathered, Harvard invokes the P&P’s remarks about confidentiality and privacy, which the P&P calls “important considerations.” Yet in the P&P’s own language, these considerations are constrained by “what is practicable.”  In contrast, the P&P says the obligation to share “the evidence gathered” is absolute: “the faculty member will have an opportunity to review … the evidence gathered” (emphasis added). See my Opposition, page 11.

One might imagine some implied exception to the FRB’s obligation to sharing evidence.  The P&P says no such thing, of course, but I wouldn’t have been surprised if Harvard argued that certain evidence could be withheld for particularly good cause—where the evidence is especially embarrassing or poses some distinctive personal or professional risk.  However the FRB offered no such reasons, nor did Harvard attempt such an argument in its Motion to Dismiss.  Nor is there any suggestion that the FRB attempted to balance competing values by concealing specific speakers’ identities for good cause.  Instead, the FRB withheld the identity and context of every single person whose interview included the quoted derogatory remarks.  The P&P plainly rules out that approach.

How the 2015 FRB shared evidence with me, why that matters, and what that says about the importance of evidence in 2017

In notable contrast, the FRB’s 2015 report about me did attach some evidence, and some of that evidence was genuinely useful to me in responding.  For example, the FRB’s 2015 draft report attached an email in which HBS’s CFO praised me for distinctive efforts to protect the school’s funds (and noted my genuine surprise that my efforts later caused extra work for others).  This email showed my proper purpose in those efforts, and also showed my productive working relationship with him—well within the realm of routine correspondence between a junior faculty member and a senior administrator.  In a separate thread, another senior administrator remarked on me being the only faculty member to attend an optional meeting about the school’s then-proposed conflict of interest policy.  This email showed my longstanding commitment to conflict of interest issues, as well as my distinctive familiarity with HBS’s policy in this area.  I had access to these useful emails only thanks to the 2015 FRB attaching them to its draft report and thereby providing them to me.  My 2015 response to FRB was considerably stronger thanks to these emails and other evidence the 2015 FRB provided.  And proponents of my case could point to these emails to show, among other things, my productive working relationship with senior staff (contrary to what some critics seemed to perceive).  So the emails mattered and were genuinely useful.

Recall that the 2017 FRB was much less specific at the outset about what exactly they’d investigate. And even in its final report the 2017 FRB didn’t tell me the subjects of the twelve anonymous derogatory quotes.  As a result, the 2017 evidence would have been even more useful to me in preparing my response and pressing readers to consider the gaps and errors in the 2017 FRB’s report.

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

My lawsuit is grounded in promises Harvard made to faculty via its Principles & Procedures for Responding to Matters of Faculty Conduct policy (“P&P”).  The P&P is plainly binding on faculty and Harvard alike.  Consider: Harvard circulated a draft of the P&P to faculty for consideration in advance of a faculty meeting.  The draft was discussed at length in a faculty meeting, then voted on; the unanimous vote approving the policy was reported by email to all faculty.  The P&P was then posted to the secure internal web site where other faculty policies reside.  The P&P was thus adopted bilaterally by agreement between Harvard and the affected faculty.  I understood the P&P to be a binding obligation—setting out what faculty must do in certain circumstances, and also what the University must do.

In its Motion, Harvard made no mention that the P&P was adopted by agreement with the faculty.  Harvard even skirted the question of whether the P&P is a contract with which it must comply.  Consider this gem from Harvard’s Motion: “Harvard does not concede that the FRB principles … constituted an implied contract, legally binding on Harvard.”

Current faculty might be surprised by Harvard’s intimation that the P&P is not legally binding. Surely most faculty believed, as I did, that the P&P provided them with important protections should anyone allege they were out of line.  Concern could reasonably extend beyond faculty: If faculty cannot rely on policies promulgated to faculty, can students rely on policies for students?  Is any Harvard policy actually binding and enforceable, or is it all just talk Harvard can follow, or not, as its leaders see fit?

My Opposition to Harvard’s Motion to Dismiss calls Harvard out for not admitting that the P&P is a binding contract.  It then identifies the facts showing that the P&P is a contract with which Harvard must comply, most notably its bilateral adoption.  If no other good comes from my lawsuit, I at least hope to establish that when a dean proposes a policy and submits it to a vote of the faculty, and when affected faculty vote to approve, the policy is binding according to its terms. 

A policy could be changed, of course, most obviously through a further faculty vote.  But until then, the policy is what it is—and it binds everyone concerned. 

Offering no concession, Harvard says nothing in its Reply disputing that the P&P is a contract with which it must comply.

Perhaps Harvard leaders now regret the firm promises and procedural commitments laid out in the P&P.  Nonetheless, those are the provisions that HBS itself proposed in 2015.  No one should be surprised that I seek to hold HBS to the provisions it said it would follow.

In March, Harvard served its Motion to Dismiss my lawsuit.  I then served my Opposition, and finally Harvard served its Reply.  So briefing of Harvard’s Motion to Dismiss is now complete, and I have added the three filings to this site’s document library.  A hearing on this motion is scheduled for December 15, 2023.

In three posts, I share thoughts on facets of particular interest –

Is the FRB P&P policy a contract?   Does Harvard actually have to do what the policy says?

Was I denied the opportunity to review “the evidence gathered”?  What is “the evidence gathered”?  Is it whatever Harvard says it is?

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

Update March 18, 2024: Harvard’s Motion to Dismiss was entirely denied.  Decision.  My reflections on the decision and next steps.