The case, filed by attorney and FIRE co-founder Harvey Silverglate, among others, Edelman v. President and Fellows of Harvard College; excerpt:
Plaintiff Benjamin Edelman brings this action in law and equity to redress the harm Harvard University has caused to his career, livelihood, and reputation by unlawfully and brazenly ignoring its own policy and acting in bad faith when evaluating his conduct in connection with his candidacy for promotion to Harvard Business School (“HBS”). The mixed report of the competent committee was the only negative factor in the process of his mandate and caused the failure of his candidacy.
Plaintiff was a tenured 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 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 tenure review in 2015, Harvard Business School convened the Faculty Review Board (“FRB”) to determine whether he had engaged in improper behavior that should affect his candidacy. The FRB process was governed by the then-new HBS policy, Principles and Procedures for Responding to Teacher Conduct Questions (“P&P”).
Following the 2015 review, HBS decided to delay Plaintiff’s candidacy for tenure for two years, while requiring him to take certain steps to contribute to the HBS community and demonstrate his fitness for tenure. He completed and excelled in each of these tasks.
In 2017, although there was no new publicity or allegations of misconduct, HBS reconvened the 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.
The P&P sets out clear rights and specific procedures, but HBS’s 2017 FRB process ignored these protections in many respects. Contrary to P&P rules on when and why the FRB can be opened, the 2017 FRB was convened without allegations of misconduct. Contrary to P&P rules that require a clear allegation at the outset, the 2017 FRB failed to provide the plaintiff with adequate notice of the scope and nature of the investigation. Contrary to P&P rules that require the FRB to “investigate” allegations, the 2017 FRB process was by its own admission “not an investigation.” Indeed, the FRB report presented 12 anonymous criticisms without context—entirely abrogating the P&P’s requirement that the FRB report share its evidence with both its target and its readers, and preventing the plaintiff from meaningfully rebutting the false claims. Furthermore, contrary to P&P rules that require the FRB to stay within the allegations it made at the outset, and generally to follow due process, the FRB has dramatically expanded its investigation in recent weeks, limiting the plaintiff’s ability to respond to spurious new concerns. The FRB’s final report was the only negative input into the lease process and the sole reason for denying plaintiff’s lease application.
HBS’s conduct in this matter was in violation of the black letter of its own policy and its contract with the plaintiff. HBS also acted in bad faith in this matter, misapplying and twisting its policies to engineer the denial of plaintiff’s lease application. HBS has repeatedly made decisions motivated by public relations, political concerns and personal animus. This tactic breached the applicable contract and breached HBS’s duty of good faith and fair dealing.
The plaintiff now does not claim that he was entitled to an internship at HBS. But he he was has the right to consider his candidacy in accordance with the special procedure promised by HBS, including compliance with the procedural protections established by the P&P and good faith in its application….
AND The Boston Globe article (Hilary Burns) unsurprisingly reports that Harvard declined to comment on the lawsuit.