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

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 multiple binders of evidence and analysis—with further 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.