Who Sues Harvard?

Harvard presents itself as a tolerant and welcoming institution.

For the most part, evidence seems to bear this assertion out: student retention rates are the highest in the nation, almost all undergraduates live on campus, admissions yield rates continue to climb and giving by alumni is extremely generous.

But there are those who have their quibbles. So like any large institution, particularly one with so much influence in just about every powerful area of government and academic life, Harvard faces its share of lawsuits.

A review of pending and recently adjudicated litigation against Harvard shows that some plaintiffs are taking advantage of the Harvard name; others bring wholly unjustified--and often unusual--claims before the court. The vast majority of Harvard cases are stopped before trial by Harvard's legal machine--many are settled out of court.

Most start as photocopied sheets, turned in to the clerk's office at the Middlesex County Courthouse on Thorndike Street. A select few make it to the United States District Court in South Boston.

Despite the publicity that these cases may garner, members of Harvard's Office of the General Counsel (OGC) say that overall these suits take up little of the lawyers' time.

The Lonely Few

Over the last two-and-a-half years, Harvard has faced 20 lawsuits.

"We don't have many lawsuits for an entity as large as Harvard," says Vice President and General Counsel Anne Taylor. "We, as an institution, are good at what we do, so we don't [get sued much]."

Taylor says that in the 17 years she has worked for Harvard, she thinks only about five claims against Harvard have ever been tried before a jury.

"Good lawyers have failed if a complaint gets to a lawsuit," she says. "We try hard not to get sued."

She says easy solutions to avoid a lawsuit include sending a letter of apology, or helping people find appropriate resources to resolve their problems.

But when the University does get sued, it defends itself like a parent bird whose nest has been violated.

Tamara E. Awerbuch, an employee of the School of Public Health, is suing the University for sexual harassment. The is case scheduled to go to trial this month.

"Nothing to me is unexpected from Harvard," she says . "They are defending themselves extremely vigorously."

According to David C. Casey, a Boston lawyer with Bingham Dana who Harvard often hires to help with its defenses, this vigor in arguing its case does not prevent Harvard from attempting to settle lawsuits.

"If there is an appropriate way short of litigation, Harvard tries to do that," Casey says. "They're [Harvard's lawyers] reasonable people."

Yet he says Harvard only will settle when it is being presented with what it feels are reasonable demands.

Quite a few of the lawsuits filed against the University in the last two and-a-half years were indeed settled before reaching a judge or jury.

These include two 1998 suits in Middlesex Superior Court from the family of Trang Phuong Ho, who was killed by her Dunster House roommate in 1995.

Also, in 1998 Harvard settled a suit by an undergraduate who was injured in 1995 when a windowpane fell on her head in the Museum of Comparative Zoology building. Recently, the Harvard Business Review was sued in Federal District Court for using the term "breakthrough thinking," a term trademarked by another company, in one of their publications.

The suit was settled the same year.

While the University often defends employees who are sued in their capacity as Harvard workers, it does not provide them absolute immunity.

According to Taylor, the University will not defend employees from any action which was not a part of their official duties or which showed gross negligence.

She notes, for example, the University would not defend an individual who was genuinely guilty--in the University's eyes--of sexual harassment.

The Office

Defending the University from actual lawsuits is in fact such a small portion of the OGC's work that most cases involving lawsuits are handled predominantly by lawyers at Boston law firms. The University contracts work to them on a case-by-case basis.

Taylor says that this system saves Harvard money.

"We're not staffed to [take cases to trial]," Taylor says. She notes that one case will typically occupy all of a lawyer's time for a period of four or five months, something that an office of ten lawyers cannot afford.

Casey says that such a strategy is not unusual for large institutions.

However, even in the cases where outside attorneys are used, they are still supervised by OGC.

According to Taylor defending the University against lawsuits is only a "teeny-weeny" fraction of the OGC's mission which "is to provide legal advice to the University." So the office spends most of its time solving non-litigation problems as requested by the various Harvard schools.

The Risk of Employment

The few complaints that do actually make it to the courthouse, Taylor says, are generally related to employment.

For example, in 1998, there were two cases filed in Middlesex Superior Court by former Harvard employees.

One case involved Dinah K. Bodkin, a former instructor at Harvard Medical School (HMS) and researcher at Brockton/West Roxbury Veterans Administration Medical Center, a Harvard-affiliated hospital.

Bodkin claims she was fired from these positions because she reported what she claims were procedural lapses in the scientific study conducted by another HMS doctor. She says her dismissal violated the school's policies on reporting scientific problems, and ended her career as a research scientist. She is seeking $450,000 in damages. The case is still active.

Also in 1998, a former University security guard who worked for the University from 1988-1989 sued Harvard after learning that personally damaging information was included in his personnel file. He alleges that the University promised to remove the information after he voluntarily resigned. When he applied for a job with a Florida police department and his file was sent there, however, the information was still included in the file.

A judge quickly dismissed the suit because too much time had elapsed between the alleged actions and the suit.

Taylor says that employment is a very big source of the risk that the University faces.

To mitigate this risk as much as possible, OGC provides significant training to various units of the University to avoid legal problems.

Searching the Files

While employment issues may be a major source of litigation, a bulk of the lawsuits since 1998 defy any quick summary.

Two cases involve unsatisfied doctoral candidates, one at the Graduate School of Education and one at the Graduate School of Arts and Sciences. Both suits claim that the schools unfairly dismissed the students from their graduate programs and thus adversely affected their lives. One of them is still pending.

Another case sought $500,000 against the University, claiming the police unfairly banned a woman from entering Harvard buildings after she caused disruptions.

Several other cases were filed against Harvard in its capacity as the owner and landlord of Cambridge property. In one an individual fell on a sidewalk outside of a Harvard-owned building in 1996 during a winter storm.

Finally, Harvard was one of many defendants in a multi-billion dollar suit by a woman who claimed to have been "illegally implanted" by the federal government with a devise known as a "CATO," that caused great harm. Other defendants in the suit included former President George Bush, Sen. John Kerry (D-Mass.) and the Pentagon.

This suit was almost immediately dismissed by a judge for having "no basis."

The Harvard Name

Most agree that the Harvard name and the image of the institution represented by the name play a role in the litigation faced by the University.

Taylor believes the name and the image of the University as holder of great wealth serve as the impetus for people and organizations to sue.

Additionally, she says, if the case does make it to a jury trial, the jury members may side with the "little guy" plaintiff because jurors often view large institutions unsympathetically.

"The jury is always a crapshoot," says Taylor. "Juries often see a David and Goliath battle."

Casey, however, says this fear is not a reality.

"In the abstract one could worry about that dynamic," Casey says. "I have found many more times jurors take the oath thoughtfully and do not look at the wealth of the defendant. In my experience, Harvard has fared well."

However, one individual currently engaged in litigation against the University feels quite differently, saying Harvard's great wealth often "intimidates" individuals from suing the University.

"People tell me 'you're never going to win against them,'" Awerbuch says. "They can fight forever."