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

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.