Harvard Business School in Turmoil: Seven Tenured Professors Attack Administration

A group of Harvard Business School tenured faculty says that what they learned after the school found Dr. Francesca Gino guilty of research misconduct has “rocked our confidence in HBS.”

In an op-ed that the Harvard Crimson published in October 2023, the seven professors spoke out “anonymously, for fear of retaliation” by the business school. They allege that the administration at HBS violated policy development norms by secretly changing the school’s decades-old Research Integrity Policy, and did so specifically after receiving allegations concerning work by their colleague, Dr. Gino.

The group even claims that for two years, the administration had failed to disclose any of those policy changes to the faculty.

The Francesca Gino Controversy: Synopsis and Update

An award-winning researcher and tenured professor of business administration at the Harvard Business School and a world-renowned expert on dishonesty—Dr. Gino stands accused by a blog calling itself Data Colada of misconduct that altered data in four published research studies.

Those allegations resulted in the school placing her on administrative leave without salary or benefits like healthcare, blocking her from setting foot on Harvard’s campus or accessing its online platforms, and launching a process that could end her tenure.

However, Dr. Gino claims never to have done anything wrong, and she’s consistently professed her innocence in an extended New York Times interview, and in her LinkedIn posts, recent letters to her research collaborators and faculty colleagues at HBS, and on her new website.

She also claims that she’s without fault in her $25 million lawsuit’s complaint against Harvard University, HBS Dean Srikant Datar, and the Data Colada bloggers, while pursuing claims that include Title IX sex discrimination, defamation, conspiracy, and breach of contract.

As we go to press in December, U.S. District Court Judge Myong J. Joun is evaluating motions to dismiss filed by the defendants and motions filed by media intervenors like the New Yorker Magazine to unseal Harvard’s 1,200-page internal investigation report. Should Dr. Gino’s claims survive the judge’s rulings, her counsel will then seek supporting evidence by launching discovery proceedings against Harvard and the bloggers.

But the faculty’s op-ed isn’t the only surprising development since we first covered Dr. Gino’s controversial case in our September 2023 BSchools feature article, “Harvard Professor Sues University for Defamation Over Misconduct Allegations.” Recently, two professors from the law schools at both Harvard University and Yale University have also published their own op-eds. Their analyses explain why the university might want to settle—and if it doesn’t, why Dr. Gino could win the case.

The Four Faculty Concerns

Here’s a summary of the four concerns expressed by the seven anonymous professors in their Harvard Crimson op-ed entitled “Seven Tenured HBS Faculty Speak Out.”

1. Research Integrity Policy Changes Lacked Faculty Input

The op-ed claims that HBS changed its Research Integrity Policy during the summer of 2021 only after receiving allegations regarding Dr. Gino’s work, and without consulting with or informing the faculty about any of the modifications.

The record shows that the policy statement from 2013 had been secretly replaced with a new statement entitled “Interim Policy and Procedures for Responding to Allegations of Research Misconduct” in August 2021, known as the “Interim Policy.” The professors argue that the changes codified in the new policy violated the school’s procedural norms of policy development that require extensive faculty input—norms under which HBS had functioned for decades.

Typically, developing new policies at HBS first required task forces, group meetings, interviews, and surveys. Then, the procedure would finally culminate months later in a proposed recommendation on which all faculty members would vote and, if approved, the administration would adopt. However, none of these procedures was followed in enacting the Interim Policy, which the authors say that the faculty didn’t even learn about until after the new policy had already been in effect for two years.

Furthermore, the scholars assert that these changes needlessly created unfair “artificial and arbitrary” restrictions, making it more difficult for Dr. Gino to defend herself against the charges of research misconduct.

For example, the old policy didn’t restrict the subjects under investigation from discussing the matter with anyone else, including advisors. But the new policy permitted Dr. Gino to talk with only two advisors—and under the threat of termination for violating confidentiality, precluded her from talking with others outside the investigation.

The new policy also restricted her time available to prepare a defense to only a few weeks, even though opposing faculty and staff had worked against her for months while the investigation had been underway.

2. HBS Failed to Follow Its New Interim Policy

The professors additionally claim that HBS failed to follow its new Interim Policy during the investigation. They appear to argue that because the policy was not consistently applied, it did not provide Dr. Gino with adequate due process protections.

Specifically, the op-ed claims that HBS did not follow its own Interim Policy in several ways. For example, the faculty argues that the business school’s administration failed to articulate its specific misconduct charge, shifted the burden of proof onto Dr. Gino, failed to maintain confidentiality, and recommended the “harshest possible” sanctions without first considering mitigating circumstances.

3. Circumventing Protections Under Harvard’s Contract and Policies

Before a tenured professor can face dismissal, a well-established Harvard University policy known as the Third Statute first requires a procedural finding of “grave misconduct.” Here is that language:

All Officers who hold teaching appointments, as defined from time to time by the Corporation with the consent of the Overseers, are subject to removal from such appointments by the Corporation only for grave misconduct or neglect of duty.

Dr. Gino was never convicted of such a charge. Nevertheless, the professors argue in their op-ed that HBS circumvented protections to which she’s entitled “under her contract and longstanding University policies.” The administration accomplished that result by instead substituting a two-year administrative leave to effectively terminate her employment.

4. No Tenured Harvard Professor Has Ever Been Fired

The authors argue that even when tenured professors were directly accused of sexual assault, sexual misconduct, and Title IX violations, Harvard still did not fire them. “We believe Gino’s charges pale in comparison to some of these horrors,” writes the group. They also sound concerned about how “this drastic step” could set a precedent for other tenured faculty in the future, “given the broken investigation process.”

Could Dr. Gino Win? Law Professors Weigh In

Although the business school professors’ op-ed and some of the more sensational claims in Dr. Gino’s pleadings, like defamation, privacy violations, and sex discrimination have captured headlines, there’s a crucial issue within this situation that the press has essentially ignored.

Two of the most highly-respected law professors in the country spotted this issue, which relates to Dr. Gino’s breach of contract claim. Their fundamentally identical analyses suggest that if Dr. Gino’s counsel proves that the facts establishing this breach occurred, either Harvard might have to settle—or at trial, she could win.

The scholars include Stephen L. Carter, the William Nelson Cromwell Professor of Law at the Yale Law School, and Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at the Harvard Law School. Both professors teach required courses in contract law to first-year students.

MBA students with limited work experience might feel surprised to learn about the “at-will” doctrine that governs most employment relationships across the United States. As Professor Carter points out in his Bloomberg op-ed, this doctrine says that no American can be forced to hire anyone or forced to accept a job offer. In other words, barring only a few exceptions like union collective bargaining agreements and antidiscrimination laws, employers can fire employees for any reason, or for no reason. Similarly, employees can also resign for any reason—or for no reason at all.

However, a negotiated employment contract may limit an employer’s capability to discipline or fire an employee. According to Professor Carter, academic tenure is still widely regarded as just such an indefinite-term employment contract.

Although increasing numbers of tenured faculty have lost their positions in recent years despite this prevailing notion, tenure “isn’t quite employment at will,” he says. That’s because at least an implied promise exists that punishing tenured faculty “will be limited to the rarest of circumstances.” He continues:

According to Gino’s suit, Harvard’s promise was more than implied. University rules set forth a process for evaluating claims of scholarly misconduct, she says, and HBS didn’t follow it. Instead, the complaint alleges, the school came up with a new process, solely for the purpose of evaluating her case. And even under the new process, says Gino, the committee didn’t follow the rules.

That’s a pretty straightforward claim. Either Harvard followed its own rules or it didn’t. Whatever might happen to Gino’s other allegations. . .this one is surely worth taking to trial. If she turns out to be right about the process, Harvard might wind up losing the case (or, more likely, settling).

Noting that “contracts are contracts,” in his Medium essay, Professor Lessig adds even more emphasis to Professor Carter’s point that HBS broke its explicit promises to Dr. Gino:

There is one fact so far that is already absolutely clear—and just wrong: It is that the business school, under pressure, changed its ordinary procedures for investigating charges of academic fraud, essentially crippling Gino’s ability to mount a serious defense. . .

Business schools especially should understand that contracts are contracts and that the procedures outlined in contracts are binding on both parties. . .Those procedures were not followed with Gino.

Professor Carter adds that employers need to recognize the crystal-clear lesson from this litigation: before disciplining or firing an employee, they first must ensure that they adhere to any required internal processes. Otherwise, he warns that “if you ignore them, not even the at-will doctrine will protect you from the ensuing lawsuit.”

Next Steps in Dr. Gino’s Litigation

According to a November 28 report from the Harvard Crimson and the case data posted by the Free Law Project’s CourtListener docket database, all defendants have now filed their answers to Dr. Gino’s amended complaint as motions to dismiss. The university and Dean Datar filed a joint motion on October 10 attempting to dismiss Dr. Gino’s claims of defamation, civil conspiracy, and the breach-of-contract claim but did not seek to dismiss her federal Title IX gender discrimination claim. In November, the bloggers then filed their motion to dismiss all of Dr. Gino’s claims, including her conspiracy and libel allegations.

In response, Dr. Gino’s counsel filed a legal memorandum on November 22 opposing the motions to dismiss. Her memorandum argues in favor of the plausibility of her allegations, plus argues that her alleged facts warrant her claims for relief. Although her reply memorandum’s filing suggests that this phase of the litigation’s motion practice appears to be drawing to a close, her case cannot proceed to the discovery phase until Judge Joun rules on which of her claims will survive the defendants’ motions to dismiss.

The Crimson then quotes employment attorney Jack Sullivan with Dorsey & Whitney, a law firm in Minneapolis. Sullivan says that decisions on these motions could require a substantial amount of the judge’s time.

“It is likely to be a months-long process before the judge decides those motions,” he said. “That might be six, nine months—even more.”

Meanwhile, Harvard’s 1,200-page internal investigation report remains under seal despite the New Yorker’s motion to intervene and unseal the judicial record, which the magazine filed in collaboration with the Washington, DC-based Reporters Committee for Freedom of the Press.

Furthermore, as the docket and CourtListener’s list of parties and attorneys shows, several lawyers from the American Civil Liberties Union have also filed appearance notices in support of a forthcoming amicus brief. The involvement of such high-profile media and civil rights intervenors reflects the case’s widespread press coverage and the public’s phenomenal level of interest in this ongoing controversy.