This week Judge Kenneth Salinger ruled on the cross-motions for summary judgment. The decision is adverse to me on all key points: (1) The FRB P&P is not a contract; (2) I can’t prove Harvard violated this policy or the covenant of good faith and fair dealing; and (3) I can’t show any procedural violations caused me harm because Dean Nohria states he would have declined to recommend my tenure appointment regardless.
“The evidence gathered,” missing from the Court’s decision
Harvard’s P&P stated flatly that I would be provided “the evidence gathered: through the FRB’s investigation and given the opportunity to respond to that evidence. The FRB failed to provide me the evidence, so I could not meaningfully respond to its draft report. Win or lose—and I would obviously prefer to have won—I succeeded in obtaining through discovery not only “the evidence gathered” by the FRB, but also the internal communications among the FRB members and HBS staff. If I had received this evidence at the time, I’m certain I could have effectively rebutted the FRB’s draft report and gained substantial additional support for my tenure beyond the 57% favorable vote I actually received. To see how I would have used this evidence, consider my rog responses and explainer video. Indeed, the evidence is—let me put this politely—remarkable. Time after time, FRB staff Associate Dean Jean Cuningham artfully excerpted interview notes to change the meaning, contrary to witnesses’ own words elsewhere and contrary to interviewers’ contemporaneous impressions. Later, Executive Dean Angela Crispi inserted purported “quotes” from her “interviews”—but her insertions are neither in interview notes nor in the emails where Harvard lawyers claim to have found them. When FRB member Len Schlesinger read Cunningham’s draft, he requested more negative material despite never seeing the underlying interview notes. With access to “the evidence gathered,” I would have showed the FRB’s report to be not just wrong but squarely contrary to the FRB’s own evidence.
Moreover, internal communications reveal that the FRB members and staff contrived, regardless of the evidence, to produce a draft report that would place my candidacy in an unfavorable light. For example, after a favorable interview, FRB chair Amy Edmondson remarked “Sigh”. Upon receiving evidence helpful to me, she commented “perhaps this was not the right one to pick”, meaning she wanted a subject that would portray me badly. Furthermore, before gathering a single piece of evidence in 2017, she said it was “obvious we shouldn’t have him on the senior faculty.” Similarly, FRB member Stu Gilson said I was “irredeemable” before receiving evidence. FRB notes even reflect proposals to impose sham requirements to induce my departure (“we need to put a structure of resources in place that he would find onerous and leave”). These tactics are way out of line. The FRB was supposed to investigate fairly on behalf of the full faculty, which delegated this authority to have the work done carefully and properly. And the FRB was supposed to follow the evidence, not rig the process to reach a predetermined result.
HBS leaders also admitted applying standards selectively. Ben Esty, HBS’s chief compliance officer, stated “one could interpret the selective enforcement of our community standards on a single candidate as discriminatory” (attribution). Cunningham acknowledged: “we haven’t audited any faculty member for compliance with the [conflict of interest] policy.”
Uncovering this FRB misconduct would have yielded a stronger faculty vote in my favor and would have persuaded Dean Nohria to recommend my appointment. While I am disappointed by the decision, I celebrate that my suit forced Harvard to produce “the evidence gathered” along with communications that reveal the overriding goal of the FRB and staff to undermine my candidacy.
Taken together, this evidence supports allegations of bad faith. I hoped the Court would engage with this evidence. It did not.
Nohria’s affidavit as a cure-all?
The Court treated Dean Nohria’s affidavit as dispositive on causation. Nohria claims he would have recommended against my promotion to tenure regardless of the FRB report and Appointments Committee vote, based on supposed concerns about my disclosures on certain papers, and based on my filing a class action without consulting with the HBS Dean’s office. If Nohria would have ended my candidacy on those bases, the FRB’s errors might not matter.
But contemporaneous documents contradict Nohria’s current account. In 2017, he said the primary factor in his decision was that I had “dug [my]self in a hold from 2015 incidents” (he meant 2014), and secondarily he mentioned the AC vote. In notes for remarks to the Appointments Committee in 2017, he emphasized by the AC vote. In an email to then-President Faust, he remarked on the lack of a clear recommendation from the AC, and identified no other relevant factors. These shifting explanations raise questions of reliability. His 2025 affidavit, prepared for litigation, conflicts with his contemporaneous statements.
Summary judgment is appropriate only where no material factual dispute exists. The Court calls Nohria’s affidavit “unrebutted,” but in fact the docket shows genuine dispute about what Nohria would have done absent the FRB’s errors.
P&P not a contract?
The Court says the FRB P&P is not a contract and hence no basis for litigation. But the policy’s history and language point the other way. Faculty criticized HBS’ prior process as “no[t] consistent,” seeking greater confidence going forward. Once the P&P was drafted, HBS sent the proposal to every faculty member, asked faculty to read, and facilitated a lengthy in-person discussion. FRB Chair Amy Edmondson’s contemporaneous emails show she understood the policy was binding: She complained about rules that granted me rights (“Unfortunately, our FRB policies give him a chance to respond”), but reluctantly did what she thought the P&P required. Key policy text is in accord, using mandatory language such as “will have the opportunity to review … the evidence gathered” (emphasis added). And the P&P nowhere says HBS can unilaterally change the policy. Each of these factors indicates that faculty reasonably and actually understood the P&P to articulate requirements that must be followed.
Furthermore, discovery reveals that the FRB framework was created specifically for my case. Cunningham’s notes describe Dean Nohria wanting to “launch[]a review process for Ben,” and meeting materials say the first-stated “objective” was to “respond to the Ben Edelman situation in particular.” With the P&P literally created for me, there’s obvious tension in denying me its protections.
My briefing made these arguments, but the Court discusses none of it (not even to explain why this doesn’t matter). Instead, the Court says there was no “mutual assent” in that Harvard never negotiated this agreement with me or anyone else. But universities routinely govern through policies accepted through continued affiliation rather than individual negotiation. Indeed, negotiating with individual faculty would yield hundreds of different policies, obviously unworkable. In finding only negotiated provisions to be contractually binding, the Court gives faculty no recourse if universities depart from their rules. That’s both unwise and untenable.
This part of my case has broad impact for others. If faculty have no claim when Harvard doesn’t follow the P&P, what about other policies? What about students? In my view, the best path forward is clear rules to guide everyone—not just rules that are easy to read, but rules that are actually followed, that must be followed on pain of litigation. Alas, this week’s decision moves in the opposite direction.
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Massachusetts law grants me 30 days to appeal. I am considering my options.