What HBS did wrong

In summer 2017, in preparation for my possible promotion to tenure that fall, HBS reconvened a “Faculty Review Board”, the school’s disciplinary procedure for evaluating possible faculty misconduct. The FRB is governed by its “Principles & Procedures for Responding to Matters of Faculty Conduct” rules (the “P&P”), which establish significant protections for faculty members. On the whole, the P&P requires a careful, organized, evidence-backed procedure designed to find the truth — guaranteeing that the faculty member have meaningful notice of the claimed infraction, access to relevant evidence, and a fair opportunity to respond. The 2017 FRB flouted the clear requirements as it sought what seems to have been a predetermined conclusion.

I allege that the P&P has the force of contract, and my lawsuit flags five distinct violations of that contract:

  1. The 2017 FRB failed to provide me, or its readers, with “the evidence gathered.” The P&P instructs that any FRB report must include “the evidence gathered.” The word “gathered” means that the evidence must be provided in the same form in which is it was gathered, e.g. full interview transcripts, full interview recordings, and full emails. All these must include 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 2017 FRB did not provide the evidence that it gathered either with its draft report or its final report. In fact it attached no evidence whatsoever. Thus neither I nor the Appointments Committee ever received the evidence the FRB gathered.

    Most glaringly, the FRB criticized me with 12 derogatory bulleted entries (nine of them just one sentence each), purportedly summarizing remarks by people the FRB spoke to. The FRB knows who it spoke to, kept notes of all discussions, and I believe even made recordings. But the FRB didn’t tell me, or readers, who made these remarks. Nor did the FRB tell me, or readers, what contexts the speakers were talking about. Maybe all 12 came from one person, or maybe from 12 different people; the report gives no way to know. This decontextualized anonymous criticism is plainly contrary to the P&P obligation to provide “the evidence gathered.”

  2. The 2017 FRB lacked a proper scope consistent with the P&P. The P&P instructs that the FRB may be invoked to investigate “instances of egregious behavior or actions, or incidents that indicate a persistent and pervasive pattern of problematic conduct.” (emphasis in original). But the 2017 FRB alleged neither of these. Indeed, the 2017 FRB was convened in the absence of any alleged misconduct whatsoever.

    If HBS wanted to convene a FRB to investigate me in 2017, it needed to allege either egregious behavior, or persistent and pervasive problematic conduct. But neither of those prongs would have been plausible. Tellingly, the FRB did neither. The P&P allows no such thing.

  3. The 2017 FRB failed to begin by stating “a summary of the allegation, as it is known at the time.” The word “allegation” has real meaning — an affirmative claim of misconduct. The FRB made no such claim at the start of its 2017 proceedings, failing to put me on notice of what, specifically, they would be investigating. Instead, months into its proceeding, the FRB unveiled a host of spurious complaints. In contrast, the P&P requires that the scope be provided at the outset, which would have let me better defend myself and would have kept the FRB (properly) limited to those matters serious enough that they were known at the outset.
  4. The 2017 FRB improperly expanded its scope midway through its proceedings.

    The P&P requires the FRB to investigate the same “the allegation” that it stated when commencing its process, thus giving the faculty member notice of the scope of its inquiry at the outset and a fair opportunity to be heard during the process.

    Instead, the FRB expanded its scope at the last minute. The 2017 FRB began as an inquiry into my progress since 2015 and compliance with requirements agreed to in 2015. But late in the 2017 process, the FRB became an inquiry into my outside activities.

  5. The P&P requires the FRB to “investigate the allegation” (emphasis added), yet the 2017 FRB in its own words admitted that it was “not an investigation.” That much the 2017 FRB got right — it genuinely did not seek to get to the truth of the matter or weigh evidence, for it instead resorted to anonymous attacks and collecting grievances. But the P&P required the FRB to actually investigate. Having admitted not conducting the “investigation” that the P&P required, the FRB plainly and by its own admission did not comply with the P&P.

    So too for the FRB’s failure to reach “conclusions” as the FRB required. The FRB admitted that it “did not seek to pass judgment on [my] particular outside activities and work.” And the FRB collected and reported grievances about me, without even attempting to determine whether the complaints were correct. In contrast, the P&P required the FRB to provide “conclusions,” which it plainly and again by its own admission did not.

Details are in my complaint, especially paragraph 24 (as to the governing rules), 45 to 68 (as to the FRB’s violation of these rules), and 84 to 102 (laying out my breach of contract claim arising from the FRB’s violation of these rules).

My complaint also alleges that HBS breached the duty of good faith and fair dealing, requirements which are implied in all contracts. I allege multiple violations of that duty: HBS incorrectly included staff in or supporting the FRB who had conflicts of interest in that they were witnesses or complainants in the same matters the FRB was to investigate. The FRB misrepresented evidence and failed to correct incorrect statements even when I specifically flagged those errors. The FRB mischaracterized a governing HBS policy by failing to explain the limited situations in which that policy applied and by assuming, incorrectly, that it applied to my situation. I claim that the FRB’s procedural errors amount to a denial of basic fairness and undermined my rights under the P&P. Details in my complaint, paragraphs 108 to 111.