By: Luca F. Schroeder, The Harvard Crimson, March 1, 2016
An ongoing lawsuit that alleges Harvard discriminated against a former associate professor on the basis of gender has now provoked a broader dispute about the confidentiality of the University’s tenure process.
In early February, a federal court declined to issue a protective order that would have allowed Harvard to redact the names of internal and external participants in the tenure review process of Kimberley Theidon. [Plaintiff Theidon is represented by Linda M. Correia of Correia & Puth, PLLC, with co-counsel Elizabeth A. Rodgers of Rodgers, Powers & Schwartz and Philip J. Gordon of Gordon Law Group.]
Theidon, formerly an associate professor of Anthropology at Harvard, filed a lawsuit in the Massachusetts District Court against the University last March alleging she was denied tenure for advocating for victims of sexual assault and on the basis of her gender. That complaint characterized her unsuccessful candidacy for tenure as “retaliation” by Harvard that violated anti-sex discrimination Title IX and anti-employment discrimination law Title VII.
Harvard had requested in an October motion that the confidentiality of the individuals reviewing Theidon’s tenure case—16 external scholars and 13 members of Harvard’s Anthropology department—be protected, arguing that undermining that confidentiality would undermine the tenure review process’ reliability.
In the Faculty of Arts and Sciences, after a seven- to eight-year track, every tenure case ends in an ad hoc committee meeting chaired by the President and Provost of the University. The Dean of FAS, the divisional dean, and the Senior Vice Provost on Faculty Diversity and Development sit on the committee ex officio.
They are joined by two area experts from departments within the same division and three from outside Harvard to review letters from scholars inside and outside the University. In the letters, scholars are asked to evaluate the candidate’s scholarship and compare the candidate to “comparands”—other scholars in the candidate’s field of research.
Harvard’s memo proposed redacting the names of these scholars and the “comparands” in the letters and disclosing the names of those on the ad hoc committee on an “attorneys’ eyes only” basis—a measure typically reserved for trade secrets.
In a document opposing the motion, Theidon’s legal counsel argued that such confidentiality would “blind” Theidon. The memo said the motion would prevent her from proving—by comparison with the “comparands”—that she deserved tenure; render the external letters “negligible,” as the recommendations in those letters carry weight primarily based on the authority and expertise of the writer; and make proving any biases on the ad hoc committee difficult.
Both parties, according to court filings, agree that public disclosure of these documents should be prohibited.
The court declined Harvard’s motion on Feb. 4, stating that Theidon’s personal access to unredacted versions of the tenure review materials is necessary to her case. The names of her reviewers will be replaced by pseudonyms in public court filings.
In an emailed statement, FAS spokesperson Anna Cowenhoven wrote that Harvard appreciates that the court recognized the central role confidentiality plays in the tenure process and that it ordered Theidon’s counsel not to publicly reveal the identities of those who commented on her candidacy.
“But we wish he had gone further: acknowledging that confidentiality is critical to candid assessments is not enough if the court allows professors denied tenure to break this confidentiality by simply filing a lawsuit—even one, like this one, that is completely without merit,” Cowenhoven wrote. “Because there is surprisingly little case law about this issue, we think it’s an area where greater clarity is needed.”
In a Feb. 17 memorandum, Harvard attorneys asked the District Court to certify the question of whether or not the motion for a protective order should have been declined.
“If the Court’s order stands, the harm cannot be undone,” the memorandum reads. “The identity of the scholars who provided assessment of plaintiff’s scholarship will have been disclosed to the tenure candidate. That bell can never be unrung.”
Harvard’s response characterizes the court’s decision as having “far-reaching consequences,” potentially setting a precedent that Harvard says may undermine the integrity of the tenure review process for all research universities.
“I can imagine that external reviewers would be less inclined to participate in Harvard’s tenure process if they knew that the considerable time they spend evaluating candidates for tenure may indeed be for naught—as would be the case if Harvard simply bypassed the reviews and made their decision based upon discrimination or retaliation,” Theidon wrote in an emailed statement.
Theidon herself filed a motion to compel Harvard to produce relevant electronic information—including emails—possessed by eight individuals: among them, three tenure-track faculty members in the Anthropology department who could be considered “comparators,” a tenured Anthropology professor, Harvard Business School Dean Nitin Nohria, and University Title IX Officer Mia Karvonides.
According to the February court order, Theidon was interested in knowledge Nohria could have about Harvard’s awareness of women’s disadvantage in the tenure process and possible response measures, as well as documents related to her allegations.
On Feb. 16, Nohria submitted a signed affidavit written to support Harvard’s motion to reconsider Theidon’s request, stating that his understanding of barriers in the tenure process was limited to the Business School and was not transferrable to FAS. The affidavit also states that he “played no role” in Theidon’s tenure process and therefore has no relevant documents.
Read the Crimson article here.