The Volokh Conspiracy

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Interesting New Contractual Due Process Lawsuit by Former Harvard Business School Professor


The case, filed by, among others, lawyer and FIRE co-founder Harvey Silverglate, is Edelman v. President & Fellows of Harvard College; an excerpt:

Plaintiff Benjamin Edelman brings this suit in law and equity to correct the harm that Harvard University has caused to his career, livelihood, and reputation by unlawfully and brazenly ignoring its own policies, and acting in bad faith, when evaluating his conduct in conjunction with his candidacy for promotion to tenure at Harvard Business School ("HBS"). The mixed report from the relevant committee was the sole negative factor in his tenure process, and caused the failure of his candidacy.

Plaintiff was a tenure-track professor at HBS from 2007 until 2018. He is a world-leading expert on online markets and the internet. His academic work, teaching, and service at HBS were unusually clearly worthy of tenure, even by HBS's high standards.

Plaintiff was the subject of negative publicity, unrelated to his role at HBS, in 2014. In preparation for his review for tenure in 2015, Harvard Business School convened a Faculty Review Board ("FRB") to determine whether he had engaged in misconduct that should affect his candidacy. The FRB process was governed by a then-new HBS policy, the Principles and Procedures for Responding to Matters of Faculty Conduct (the "P&P").

Following the 2015 review, HBS determined to delay Plaintiff's candidacy for tenure by two years, while requiring him to take specific steps to contribute to the HBS community and demonstrate his fitness for tenure. He completed, and excelled at, each of these tasks.

In 2017, although there had been no new publicity or allegations of misconduct, HBS again convened an FRB. In violation of the clear 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.

The P&P establishes clear rights and specific procedures, but HBS's 2017 FRB process in numerous respects ignored those protections. Contrary to P&P rules about when and why an FRB can be opened, the 2017 FRB was convened without an allegation of misconduct. Contrary to P&P rules requiring a clear allegation at the outset, the 2017 FRB failed to provide Plaintiff with proper notice of the scope and nature of the inquiry. Contrary to P&P rules requiring the FRB to "investigate" the allegation, the 2017 FRB process by its own admission was "not an investigation." Indeed, the FRB's report presented 12 anonymous, context-free criticisms— totally abrogating the P&P requirement that the FRB report share its evidence both with its target and with its readers, and preventing Plaintiff from meaningfully rebutting incorrect claims. Furthermore, contrary to P&P rules requiring FRB to stay within the allegation it stated at the start, and more generally to follow an orderly process, the FRB expanded its inquiry dramatically in its final weeks, limiting Plaintiff's ability to respond to the spurious new concerns. The FRB's final report was the sole negative input into the tenure process, and the sole cause for denial of Plaintiff's application for tenure.

HBS's conduct in this matter was a breach of the black letter of its own policy, and of its contract with Plaintiff. HBS also acted in this matter in bad faith, misapplying and twisting its policies in order to engineer the denial of Plaintiff's tenure application. Repeatedly, HBS made decisions motivated by public relations, political concerns, and personal animus. These tactics breached the governing contract and violated 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 entitled to have his candidacy considered according to the specific procedure HBS promised, including both compliance with the procedural protections established by P&P and good faith in its application….

Boston Globe article (Hilary Burns) unsurprisingly reports that Harvard declined to comment on the lawsuit.