This post is part of Summary Judgment Motions and Evidence.
In its Motion to Dismiss in May 2023, Harvard said it “does not concede that the FRB principles … constituted an implied contract, legally binding on Harvard.” My Opposition criticized this position, and the Court largely sidelined it—relegated discussion to a one-sentence footnote before applying the FRB Principles & Procedures (“P&P”) as the contract I say it is.
Harvard’s Motion for Summary Judgment revives this argument in full force. Harvard contends that the FRB P&P is merely “guidance,” not contractual; that HBS reserved the right to amend the P&P; that I didn’t negotiate the terms; and that my inability to recall reading the P&P during the 2015 and 2017 proceedings somehow renders it nonbinding. Harvard MSJ 12.
This may be the most surprising argument in recent briefing—especially for Harvard faculty members: Harvard says the promises it makes are not promises it is obligated to keep.
I say Harvard has it wrong, both legally and factually.
One, Harvard cites the wrong authority. It cites Jackson v. Action for Bos. Cmty. Dev. Inc., but Jackson was clarified by O’Brien v. New England Tel. & Tel. Co. (rejecting any “rigid list of prerequisites” for a policy to be contractual, criticizing Jackson for creating “confusion”, and instructing considering all the circumstances to determine whether a policy is contractually binding).
Two, I present multiple factors showing that the P&P is contractual.
- No unilateral modification clause. The P&P includes no statement that HBS can unilaterally change it.
- Mandatory language. Key procedural provisions are stated clearly and in mandatory, non-flexible terms (e.g. “will have an opportunity to review … the evidence gathered”).
- Policy created for me. Discovery reveals that Harvard created the FRB process—and the P&P itself—with the specific intent to use it to review me. Describing what became the FRB, Dean Cunningham wrote that she spoke with Dean Nohria about “launching a review process for Ben.” (Ex 193.) In a meeting about what became the FRB, the first-stated “objective” was to “respond to the Ben Edelman situation in particular.” (Ex 194.) If this policy was created for me, how could I not be entitled to its protections?
- Faculty-wide adoption. I did not individually negotiate the P&P, but neither does any faculty member negotiate any Harvard policy. The P&P was emailed to the entire faculty including me, and it was the lead item at an in-person faculty meeting, where faculty provided feedback endorsing what the P&P envisioned. This is the standard way HBS evaluates and adopts important policies. I read the policy then, attended and participated in the meeting when it was discussed, found it appropriate, and felt confident in its terms. (Edelman Dep. 177.)
- Reaffirmed during proceedings. Dean Healy resent the P&P to me at the start of the 2015 FRB, without any suggestion that it was optional or tentative. Edmondson likewise invoked P&P promises and never suggested they were nonbinding.
- Harvard acted as if bound. Harvard’s own witnesses understood themselves to be constrained by the P&P, even when they would have preferred otherwise. For example, Edmondson wrote to Reinhardt, “unfortunately, our FRB policies give him a chance to respond”. (Ex 32.) If P&P were merely aspirational, she could have ignored it.
It’s frustrating to be litigating such a fundamental question. I seek nothing more than what the policy promises. If Harvard leaders wanted to approach my candidacy differently, they could have written a different policy. But this is the policy they chose, and I say they are bound by it.
The principle at stake is much broader than just me or this policy. If Harvard is not bound by the P&P, what other policies can it disregard? Can faculty rely on Harvard’s many policies on other subjects? What about students? Are Harvard’s policies binding commitments, or merely suggestion that leadership may ignore at will?
References: Opp to MSJ 8-12, 15, MPSJ 10-11.
The entire P&P applies, not just the half-page Harvard claims.
Harvard also argues that even if the P&P is binding, only part of it applies to me. Specifically, Harvard points to a half-page section titled “Notes on Promotions, Reviews and Reappointments”, and claims that only that section governed the FRB’s review because the review occurred in connection with a possible promotion. Harvard MSJ 20. According to Harvard, the rest of the P&P does not apply.
Harvard’s argument is wrong:
- The policy was created for my case. As discussed above, the entire FRB process—and the P&P itself—was conceived with me in mind. With the P&P written for me, how could just half a page, out of four pages, apply to my evaluation?
- Harvard provided, and referenced, the entire policy. Healy and Edmondson sent and referenced the P&P as a whole, without any suggestion that only a portion applied. If only half a page applied, someone would have said that.
- Harvard acted as if the full P&P applied. The FRB followed procedural requirements that are outside the narrow section Harvard now cites, including sending me a draft report and inviting my response. But under Harvard’s interpretation, those provisions would not apply because they do not appear within the half-page Harvard relies on.
Indeed, Edmondson complained internally that the FRB policies “unfortunately … give him [me] a chance to respond” (Ex 32)—lamenting a procedure that, on Harvard’s telling, was not required. If that procedure was not required, Edmondson could have just ignored the non-binding requirement, rather than complain about it. Harvard’s current interpretation is irreconcilable with how Edmondson and others understood the P&P at the time.
The reality is straightforward. The P&P establishes a single set of procedures for all FRB proceedings. The “Notes on Promotions, Reviews and Reappointments” section does exactly what its title indicates: It explains how the FRB interacts with other procedures. It does not override, narrow, or eliminate the rest of the P&P—and certainly does not convert a comprehensive policy into a half-page exception.
References: Opp to MSJ 14.