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, which materially weakened my response 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 in the Appointments Committee beyond the 57% favorable vote I actually received.
To see how I would have used this evidence, consider my rog responses (summarized in my explainer video). Time after time, FRB staff Associate Dean Jean Cunningham 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 even 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, Edmondson said it was “obvious we shouldn’t have him on the senior faculty,” while FRB member Stu Gilson said I was “irredeemable.” 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 senior faculty delegated authority to the FRB so it could investigate fairly on their behalf. 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—including distorted and falsified evidence, preformed point of view, and double-standards—would have yielded a stronger faculty vote in my favor and would have persuaded Dean Nohria to recommend my appointment.
The evidence that my suit forced Harvard to produce—the “evidence gathered” by the FRB and the internal communications among FRB members and staff—revealed the unfairness and the lack of good faith of the FRB process. Alongside its adverse rulings, the Court recognized that Harvard is bound by the duty of good faith and fair dealing. Based on the above-referenced documents and others, a jury could—and I believe would—find that Harvard violated the duty of good faith and fair dealing through the unfairness of the process and the lack of good faith by those to whom it was entrusted.
I see this evidence as central to the claims in the case. I hoped the Court would engage with this evidence. It did not.
Details: The FRB withheld “the evidence gathered” and mischaracterized evidence. The FRB acted in bad faith, and predetermined the outcome.
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.
However important Nohria now claims those subjects were, he certainly didn’t say so at the time. To the contrary, contemporaneous documents squarely contradict his current account. In 2017, he told me 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, identifying no other relevant factors. These shifting explanations raise questions of reliability. Judge Salinger credits Nohria’s 2025 affidavit, but that was prepared for litigation, and it conflicts with Nohria’s contemporaneous statements. I would place more weight on what Nohria said at the time.
Furthermore, there are good reasons why Nohria didn’t claim, in 2017, that those subjects were particularly important. The FRB’s criticism of disclosures was not just untimely and a surprise, but wrong on substance: During the period when I had projects for Microsoft, I always disclosed that relationship when writing about Google and competition (years before any HBS policy so required, plus more prominently than the policy ultimately required). But the work products the FRB criticized were published more than a year after my Microsoft engagement ended. Meanwhile, my work with Microsoft was not “directly related” to Google within the meaning of the COI Policy, which only requires disclosure when a faculty member has a financial relationship with a company and then writes about that same company. But that’s not all. Remarkably, the FRB misquoted one disclosure, and another was written not by me but by my HBR editor, to whom I made an appropriate disclosure, which he deemed not required in light of both HBR and HBS policy. With this thicket of errors, most of them raised in my 2017 reply to FRB, Nohria had little reason to credit the FRB’s criticism of disclosures.
The FRB’s criticism of my lawsuit against American Airlines, for charging for checked bags that it had previously promised would be free, was even weaker. The FRB nowhere stated what policy the lawsuit supposedly violated, because there was no such policy. The FRB flagged supposed reputational risk, but this was entirely speculative, purportedly grounded in a single document—but my reply pointed out that that document was obviously about another subject. (It was dated 2015, so it couldn’t relate to a 2017 lawsuit.) Tellingly the FRB retained the faulty citation—it had to, because removal would leave zero evidence supporting the FRB’s criticism, which would then be revealed as the speculation that it was. Moreover, the FRB’s criticism of “reputational risk” was plainly off-base. Bag fees are notoriously unpopular, and bag fee errors surely even worse. My prior lawsuits and prior aviation matters got only praise from the public, far from the reputational risk the FRB claimed. And while the FRB said I should have sought feedback from the Dean’s office before filing the case, I asked Jean Cunningham in 2008 what approval if any was required to originate lawsuits, and she told me none. The FRB was grasping at straws here, and Nohria was right in 2017 to never mention this as a serious concern.
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. In contemporaneous emails, FRB Chair Amy Edmondson recognized the policy as binding: She complained about rules that granted me rights (“Unfortunately, our FRB policies give him a chance to respond”), but reluctantly did what she understood the P&P to require. 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 it. Each of these factors indicates that faculty reasonably and actually understood the P&P to state 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 grants 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—rules that not just are easy to read, but actually followed, that must be followed on pain of litigation. Alas, this week’s decision moves in the opposite direction.
Details: The FRB P&P is definitely a contract, but Harvard says it isn’t.
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Massachusetts law grants me 30 days to appeal. I am considering my options.