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Harvard’s Tenure and Discipline Policies, Analyzed, Amid Lawsuit by HBS Professor Gino

Harvard Business School professor Francesca Gino sued the University in August after facing penalties around allegations that she committed data fraud in at least four papers.
Harvard Business School professor Francesca Gino sued the University in August after facing penalties around allegations that she committed data fraud in at least four papers. By Ryan N. Gajarawala
By Rahem D. Hamid and Neil H. Shah, Crimson Staff Writers

After allegations of data fraud by Harvard Business School professor Francesca Gino came to light in 2021, the school changed its research integrity policies to explicitly place termination on the table as a possible consequence.

Gino’s discrimination lawsuit against the University filed in August has brought Harvard’s little-known discipline and research policies into the limelight as exhibits in the filings. The Crimson reviewed the University policies surfaced by the complaint: Harvard’s Third Statute, its discipline policy, and HBS’ previous and interim research misconduct policies.

In addition to alleging discrimination, Gino accused Harvard of violating her contract by failing to adhere to its own policies when it placed her on unpaid administrative leave, stripped her of her named professorship, and barred her from campus, among other penalties.

As part of the suit, Gino’s attorneys released the Business School’s policies on research misconduct. Both the prior policy and an interim policy instituted after the allegations against Gino were brought to Harvard’s attention, according to the lawsuit.

The old policy, released as a two-page exhibit, was titled the “Research Integrity Policy” and detailed the procedures for investigations of allegations against faculty for research misconduct.

The policy defined research misconduct as “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.”

Per the document, the school’s dean could “attempt to resolve the matter through informal process or discussion” or if that is not “appropriate” for the situation, “appoint an individual or a committee to investigate the allegation.”

Following this process, a member of the investigating committee would report their findings to the dean, and after the accused party has a chance to review and comment on the findings, the dean would make the final decision.

According to the previous policy, it would be up to the dean whether to brief other parties at the University depending on the case — which could include the University President or officers of affiliated institutions with “an interest in the research.”

Per Gino’s complaint, the Business School replaced this policy with an interim policy in August 2021. The complaint alleges these rules were “created solely for” Gino.

The interim policy expands on the definition of “a finding of research misconduct” and adds that “individuals subject to this policy found to have committed research misconduct may be subject to sanctions up to and including termination.” The detailing of specific sanctions that may be levied in the case of a research misconduct finding is a key difference between the interim policy and the one that preceded it.

According to the complaint, HBS determined that its investigation committee had made a finding of research misconduct — a fact contested by Gino.

“The investigation committee failed to make the requisite, specific findings of intent, supported by a preponderance of the evidence, yet concluded that [Gino] was responsible for ‘research misconduct,’” per the complaint.

The complaint also alleges that “the investigation committee ignored exculpatory evidence, failing to consider or give credence to credible witness testimony, in violation of the Interim Policy’s mandates that it diligently pursue all leads and conduct a thorough and fair investigation.”

Through the lawsuit, University-wide discipline policies have also received new attention.

Harvard’s Third Statute — relating to the “Officers and Staff of the University” — specifies that “professors and associate professors are appointed without express limitation of time unless otherwise specified.” This is essentially the definition of the University’s tenure policy.

The statute does set a bar for firing tenured professors, however. According to the document, tenured professors can be fired “only for grave misconduct or neglect of duty.”

According to an attorney for Gino, the University notified Gino on July 28 that it had initiated proceedings to review her tenure. These proceedings will be governed by the Third Statute and the University’s discipline policy.

In her complaint against the University, Gino alleges she was punished “absent a finding of ‘grave misconduct,’ pursuant to the Third Statute.” The Third Statute, however, only requires this finding for removal from teaching and administrative positions.

A document formally called “Discipline of Officers, Tentative Recommendations,” Harvard’s discipline policy lays out procedures for the “discipline of officers of instructions.” The policy is invoked, among other cases, in instances “involving grave misconduct or neglect of duty arising under the Third Statute of the University.

Per the policy, a complaint will trigger an inquiry by the Screening Committee, which will make recommendations about what should be done and also may try to resolve the situation “by mutual agreement.”

The case moves to a Hearing Committee if either the Screening Committee recommends they take next steps or Harvard’s president determines “that it is advisable to have the case further considered.”

If the subject of the complaint, or the “respondent” has tenure — as Gino does — all members of the Hearing Committee will be tenured faculty members. Members of the previous Screening Committee are not allowed to serve on the Hearing Committee.

According to the policy, the Hearing Committee is not bound by “strict rules of legal evidence,” and may admit any evidence of “probative value” to the inquiry.

The Hearing Committee, after reviewing the case, then sends its recommendations to Harvard’s President and the Harvard Corporation, the University’s highest governing body.

Per the policy, the respondent should be allowed to provide their own arguments in response and should have a “full hearing and fair representation before an impartial tribunal” — which Gino’s attorneys allege she was not provided.

The discipline policy was amended in 1972, adding considerable detail to the procedures of the Hearing Committee specifically. It puts the burden of proof of finding “grave misconduct or neglect of duty” under the Third Statute on the complainant. It also notes that the burden will be satisfied “only by clear and convincing evidence in the record considered as a whole.”

The policy also establishes in most cases that “public statements, and publicity about the case by either parties or members of the Hearing Committee will be avoided” until the proceedings are finished, “including consideration by the Corporation.”

In the lawsuit, Gino’s attorneys wrote that “Harvard is obligated to keep information related to the complaint and impending disciplinary proceedings against a tenured faculty member confidential.

Gino’s case is the first known in which the University’s tenure review policies will come into action.

—Staff writer Rahem D. Hamid can be reached at rahem.hamid@thecrimson.com.

—Staff writer Neil H. Shah can be reached at neil.shah@thecrimson.com. Follow him on X @neilhshah15.

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Harvard Business SchoolFacultyFront FeatureFeatured ArticlesTenureResearch Misconduct