The suit was filed by lawyer and FIRE co-founder Harvey Silverglate, among others Edelman v. President and Fellows of Harvard College; A quote:
Plaintiff Benjamin Edelman brought this suit in Law & Justice to seek redress for the damage to his career, livelihood, and reputation that Harvard University unlawfully and brazenly disregarded its own policies and acted in bad faith, while evaluating his conduct at Harvard Business School (“HBS “) Candidacy for promotion to tenure. The mixed report of the relevant committee was the only negative factor in his tenure process and caused his candidacy to fail.
Plaintiff was a tenure-track professor at HBS from 2007 to 2018. He is a world-leading expert on online markets and the Internet. His academic work, teaching, and service at HBS were unusually clearly tenured, even by HBS’s high standards.
Plaintiff was the subject of negative publicity, unrelated to his role at HBS, in 2014. In preparation for a review of his tenure in 2015, Harvard Business School formed a Faculty Review Board (“FRB”) to determine whether he had engaged in misconduct. His candidacy should be affected. The FRB process was governed by a then-new HBS policy, the Policy and Procedure for Responding to Faculty Conduct (“P&P”).
After a 2015 review, HBS decided to delay plaintiff’s candidacy for two years, during which he would be required to take specific steps to contribute to the HBS community and demonstrate his fitness for tenure. He accomplished each of these tasks and excelled.
In 2017, although no new publicity or allegations of misconduct were received, HBS again convened an FRB. In violation of the express terms of the P&P, in violation of HBS’s promise to follow the P&P, and in violation of Plaintiff’s reliance on that promise, HBS then used the FRB as a forum for anonymous complaints about Plaintiff’s character.
P&P establishes clear rights and specific procedures, but HBS’s 2017 FRB process ignores those protections in many cases. Contrary to P&P rules on when and why an FRB can be opened, the 2017 FRB was called without allegations of misconduct. Unlike the P&P rule which requires a clear complaint at the outset, the 2017 FRB failed to give the plaintiff proper notice of the scope and nature of the investigation. Contrary to the P&P rule that requires the FRB to “investigate” complaints, the 2017 FRB process was by its own admission “no investigation.” Indeed, the FRB’s report presented 12 anonymous, context-free criticisms—entirely voiding the P&P requirement that the FRB report share its evidence with its target and its readers and preventing plaintiffs from meaningfully rebutting false claims. Furthermore, contrary to P&P rules that require the FRB to stay within the complaint at the outset and more generally to follow an orderly process, the FRB dramatically expanded the investigation in its final weeks, limiting the plaintiff’s ability to respond to new concerns. The FRB’s final report was the only negative input to the tenure process and the sole reason for denying plaintiff’s application for tenure.
HBS’s conduct in this matter is a violation of the black letter of its own policy and a breach of its contract with plaintiff. HBS also acted in bad faith in this matter, misapplying and twisting its policies to deny plaintiff’s tenure application. Time and again, HBS has made decisions motivated by public relations, political concerns, and personal animosity. These tactics breached the management agreement and breached HBS’s duty of good faith and fair dealing.
Plaintiff does not now allege that he was entitled to tenure at HBS. But he was HBS is entitled to consider its candidacy in accordance with specific procedures promised, including compliance with both procedural safeguards established by P&P and good faith in its application.
A The Boston Globe The article (Hilary Barnes) surprisingly reports that Harvard has declined to comment on the lawsuit.