A scholar who was denied tenure at Harvard University will take his case to court Tuesday, alleging that the institution violated its own tenure policies by giving improper weight to negative evaluations from students. Shmuel M. Rubinstein, a physicist, is also suing a Harvard computer-science professor, saying he sabotaged a job opportunity Rubinstein was pursuing after the tenure denial.
The case is notable not only for making it to a jury — most tenure-denial lawsuits don’t get that far — but also for its sociopolitical context. Though the denial was in 2019 and Rubinstein originally filed suit in 2020, the trial now occurs against the backdrop of public backlash to how Harvard and its former president, Claudine Gay, responded to antisemitism on campus. Rubinstein and his lawyers have argued in recent court filings that that context — Gay was dean of the Faculty of Arts and Sciences at the time of his tenure denial — is key to understanding the case, though the presiding judge has indicated he won’t allow such an argument.
Meanwhile, two dozen Harvard professors are urging the institution to “present its case in a fair and ethical manner” at trial. Early this month, the group sent a letter to President Alan M. Garber and other leaders noting that “the actions of some administrators and faculty members damaged Professor Rubinstein’s reputation within academic circles and among his scientific colleagues.” And a smaller subset of that group feels so strongly about their former colleague’s case that they’re helping to pay his legal costs.
“The university denies Professor Rubinstein’s allegations, which relate to events that occurred several years ago, and stands by the integrity of its tenure policies and practices,” a Harvard spokesperson said in an email to The Chronicle.
‘Very Deferential’ Courts
Though there is no central source of data tracking tenure denials, let alone their aftermath, experts agreed it’s rare for a tenure-denial case to be heard by a jury. That’s because employment law is a generally employer-friendly area, especially so when higher-education institutions are involved, said LaWanda W.M. Ward, an associate professor of higher education at Pennsylvania State University at University Park.
“The courts are very deferential to faculty in terms of allowing them to decide who they want to have lifetime employment, who they want to be their colleagues,” Ward said. “A lot of tenure-denial lawsuits, unless there’s a ‘smoking gun’ where policies were not followed or followed inconsistently, or some discriminatory action, cases normally don’t move past summary judgment.”
There are a few recent examples, though, including a former New College of Florida faculty member’s ongoing lawsuit against his former employer, and a former Boston College professor’s pending suit alleging sex and pregnancy discrimination occurred during her tenure-application process. And the case of Rashmi Gupta could potentially be seen as comparable to Rubinstein’s, Ward said. An appeals court upheld a decision in 2019 that San Francisco State University had retaliated in denying tenure to Gupta, who is from India. Gupta had complained about the university’s climate for minority women and claimed that negative student evaluations had been given undue weight in her tenure denial.
Institutions stand at increased risk of being hit with tenure-denial lawsuits “because the number of tenure-line positions seemingly isn’t as robust as it used to be,” said Scott Schneider, owner and founder of Schneider Education & Employment Law. Public perception of higher education can also work against a university. “That’s something that has radically changed, probably just in the last 30 years,” Schneider said. “There was a bit of a halo effect for most universities when they walked into a courtroom. Now, depending on where you are, the opposite may be true.”
Details of the Case
Rubinstein was, according to his original complaint, a “rising star” in Harvard’s applied physics department when he was encouraged by the dean to go up for tenure a year early, in the fall of 2018. The dean, Frank Doyle, noted that Rubinstein’s “scientific record more than met the benchmarks for tenure” and that his students regarded him highly. In March 2019, the departmental committee conducting the first review of Rubinstein’s dossier “unanimously” approved his tenure bid, and the full department also voted in his favor. The case then moved to the Committee on Appointments and Promotions, within Harvard’s Faculty of Arts and Sciences, of which Gay was then dean.
The committee, Rubinstein says, overstepped its bounds by reviewing three letters of negative feedback from former members of Rubinstein’s lab. One graduate student had in 2018 complained to Doyle that Rubinstein fostered an “abusive environment,” charges the dean cleared Rubinstein of and assured him would not factor into his tenure bid, according to court filings. A second graduate student who received negative feedback from an administrator on their mentorship of undergraduate students accused Rubinstein of “spreading rumors” about them based on the feedback (the student had been a member of Rubinstein’s lab, but left a year before). Both students submitted feedback as part of Rubinstein’s tenure process, as did a postdoc with whom Rubinstein had disagreed about the authorship of a paper. Rubinstein says he told the postdoc that they had “committed a serious and troubling professional error” and “disrespected colleagues and collaborators.”
The Committee on Appointments and Promotions, the professor’s complaint alleges, “considered and heavily weighted these letters even though it should have never had access to them, and even though there were many more positive letters that the CAP never saw.” That’s because, according to Rubinstein and his lawyers, Gay or “someone from her office” told the chair of Rubinstein’s tenure committee to include the negative letters “in the ‘verbatim’ fashion the policy explicitly prohibits.” The letters, Doyle told Rubinstein, ultimately led that committee to deny Rubinstein tenure.
Rubinstein also claims his troubles didn’t end there. After he was denied tenure, he’d nearly landed a tenured position at the Weizmann Institute of Science, in Israel. But as the parties were “close to finalizing an agreement” for Rubinstein to join the faculty, the professor heard from his would-be department head that the deal was off. Weizmann, the department head said, had “received a report from Harvard that Professor Rubinstein had been found responsible of a ‘pattern of abuse’ of students.”
Rubinstein alleges that Krzysztof Z. Gajos, a computer-science professor at Harvard, contacted the Weizmann hiring committee to warn the scholars there about the students’ complaints. (Gajos declined to comment.)
Rubinstein had a history of conflict with Gajos and the computer-science department, after one of the graduate students who complained against Rubinstein transferred there to continue their studies. Professors in that department had for years “targeted” Rubinstein, his suit alleges, and “trumpeted countless rumors about Professor Rubinstein’s treatment of students throughout the Harvard community, even after third parties have dispelled them.”
In October 2019, 31 senior scholars sent Doyle a letter asking him to reconsider Rubinstein’s tenure denial, citing the “injustice” of the CAP’s decision.
A Motion Denied
Early this year, shortly after Gay’s resignation as president of Harvard, Rubinstein and his team filed a motion to reopen discovery in the case. Gay’s “history of research misconduct, and Harvard’s efforts to shield her from consequences of that misconduct, are relevant to this case,” they argued, given that Rubinstein had also been accused of research misconduct by one of the graduate students. Christopher K. Barry-Smith, an associate judge of the Middlesex County Superior Court, denied that motion, writing that Rubinstein’s “attempt to re-cast the case and its substance ring hollow.” Barry-Smith added: “This motion strikes me as a clumsy effort to seize upon the recent, high-profile scrutiny of past alleged misconduct by Professor Gay in hopes it might discredit her as a decision-maker” in Rubinstein’s case.
Rubinstein’s team also said in a recent hearing, reported on by Bloomberg Law, that the backlash Gay and Harvard have faced surrounding antisemitism on campus is relevant to the case, as Rubinstein was born in Israel. “I do think it would be fair game to examine the witness in a limited way about Harvard’s admission that it has had institutional antisemitism pervade the university,” said Monica Shah, a partner at the Boston-based law firm Zalkind Duncan & Bernstein who’s representing Rubinstein. (Shah was not available for an interview with The Chronicle.)
In that hearing, Barry-Smith did not appear convinced of that argument. “If Professor Rubinstein or his attorneys had a hunch that bias against Israelis underlied this decision-making, it would have surfaced in the pleadings in the case in advance of 2023 or 2024, and it did not,” Barry-Smith said, according to Bloomberg Law. In an order last week, he wrote that it would be “unnecessary, time-wasting, confusing and distracting, among other reasons, to allow evidence concerning events in 2023-2024 related to Gaza protests or Harvard’s response, institutional antisemitism, or allegations of plagiarism, and plaintiffs should not expect to elicit evidence on those points.”
Ward, though, is skeptical that the sociopolitical climate at Harvard won’t play some sort of role in the trial. “Whether the judge or anyone else likes it, they’re likely going to try to introduce the inference of some bias there against him,” she said, “because he’s an Israeli professor.”
Even jury selection could pose a problem, Ward said, since congressional testimonies from Gay and leaders of other institutions drew such national attention in 2023.
