For most colleges, the academic year has ended. Harvard’s trudges on as it awaits a final grade on its investigations of a cheating scandal involving an undergraduate course in the College of Arts and Sciences. Amid allegations that an e-mail search conducted as a part of that probe violated university policy and the privacy rights of faculty members, the Ivy League school has commissioned an internal investigation of its own internal investigation that is still progress.
As first reported last August in a Harvard Gazette story, the mess in which Harvard remains began with the suspicion of cheating in an undergraduate course subsequently identified as Government 1310. In the wake of allegations that a significant number of students enrolled in that course during the previous semester may have inappropriately collaborated on answers or plagiarized their classmates’ responses on the final exam, the Harvard College Administrative Board began an inquiry into the matter.
The Board undertook a comprehensive review of more than 250 take-home final exams submitted at the end of the course that resulted in nearly half of the students in Government 1310 being brought up on academic misconduct charges. Students found responsible for academic dishonesty were subject to disciplinary action that might have included – but was not limited to – forced withdrawal from Harvard College for a year. According to a subsequent Harvard Magazine article, more than three-quarters of those students implicated in the cheating scandal were ultimately disciplined by compulsory withdrawal from the school for some period of time or placed on academic probation.
Information about those involved and impending punishments from an Administrative Board communication was allegedly leaked to news outlets by a school employee. This kicked off a second investigation of faculty and administrative personnel that primarily entailed searches of their e-mail accounts. Then – as now – Harvard College policy requires that faculty e-mail searches get the approval of the Dean of the Faculty of Arts and Sciences, while searches of administrative personnel do not require the same.
In the first round of searches, only administrative e-mails were scoured by subject line. In a second round, investigators specifically queried the administrative and faculty accounts of one of the Resident Deans – sixteen faculty members who advise undergraduate students and represent them in proceedings before the Administrative Board – in pursuit of e-mails from Harvard Crimson reporters covering the cheating case. This included a subject-line search of the latter account. These searches turned up two e-mails with a queried search phrase. Both were from the same Resident Dean. He or she was questioned and found to have inadvertently forwarded the Administrative Board message to two Harvard Crimson scribes.
As the Harvard Crimson reported in April, the second set of e-mail searches was authorized by Harvard College Dean Evelynn M. Hammonds without the approval of the FAS Dean, despite her earlier representations to the contrary. This touched off a furor that – according to another Harvard Crimson account – led to Harvard University President Drew G. Faust engaging Boston attorney and Harvard Law alumnus Michael B. Keating of Foley Hoag to look into the matter, specifically, the conflicting accounts of prior approval for the second e-mail searches. He will report to a newly created subcommittee of the Harvard Corporation, the University’s highest governing body.
In a piece at JDSupra entitled, “Harvard’s Secret E-Mail Search: The Intersection of Internal Investigations and Digital Privacy”, colleague Benjamin Fischer partly laments the fact that the investigation of the investigation has now completely overshadowed the student conduct at the heart of the matter. Rightly critiquing the second investigation into the leaked Administrative Board actions vis-à-vis the cheating students – where this all began to fall apart – he writes that:
“[a] growing criticism of Harvard’s approach centers on whether Harvard could have stopped short of a secret e-mail search to determine the source of the leak. Why didn’t the University just interview the 16 Resident Deans, thereby conducting a search in a way that would have limited the privacy intrusion? Fundamentally, from Harvard’s perspective, its decision to search e-mail subject lines, rather than interview 16 Resident Deans, reflected a cost-effective and efficient way to investigate and determine the source of the leak. Moreover, perhaps Harvard’s approach reflected a concern that if the Resident Deans were on notice of the investigation and were called in for interviews, they would, for some reason, be less than candid regarding their responsibility in forwarding the confidential e-mail, or, even worse, attempt to delete the forwarded e-mail, thereby creating even bigger problems for themselves and the University. In other words, perhaps Harvard believed a quick, simple and limited e-mail search would nip this problem in the bud and allow the University to confront the alleged source of the leak in the most streamlined way possible. But, as noted below, this approach, while efficient and arguably appropriate in light of the University’s authority to search these e-mails, does not come without serious consequences and backlash in the digital age.”
These are valid points and simply questioning the Resident Deans would have been a viable alternative to the searches now under fire. But better alternatives would have been to (1) secure the servers hosting the administrative and faculty e-mail accounts, advise the Resident Deans or that step, and request their consent to search those accounts; (2) secure the servers, advise the Resident Deans of the same, interview them to try to develop something tantamount to reasonable suspicion or probable cause about a particular one’s involvement in the leak, and then seek approval from the FAS Dean to conduct a limited search of that individual’s e-mail accounts; or (3) secure the server and proceed with searches of both types of e-mail accounts after obtaining the necessary, considered approval from the FAS Dean as required by school policy.
Any of these three options would have allowed Harvard to better protect the privacy rights of its people, forego the scrutiny and humiliation that it is now feeling, and to have avoided waiting on the results of the internal investigation of its first internal investigation of its initial cheating investigation.