Harvard Files Motion to Dismiss Lawsuit over Prison Investments

Harvard filed a motion Wednesday to dismiss a lawsuit brought by Harvard Prison Divestment Campaign over the University’s alleged investments in companies tied to the prison industry.

Harvard Prison Divestment Campaign first filed suit against the University in Massachusetts state court on Feb. 20. The suit alleges the defendants — Harvard University and University President Lawrence S. Bacow; the Harvard Corporation and its Senior Fellow William F. Lee; and the Harvard Management Company — violated Massachusetts state law on two counts.

The plaintiffs allege in their complaint that Harvard is in “violation of fiduciary duty and breach of the Harvard Charter,” by failing to “manage the endowment in ‘good faith and with the care that an ordinarily prudent person in a like position would exercise in a similar situation.’” The complaint states that “by continuing to profit off the caging of people” Harvard has violated its “legal duty.”

It also alleges Harvard has conducted “untrue and misleading advertising” in regard to the school addressing its ties to slavery.

University spokesperson Jonathan L. Swain declined to comment on the motion.

The University’s motion to dismiss states that the plaintiffs in the lawsuit have “failed to allege any wrongful conduct.”

“Even if Plaintiffs had standing—which they do not—their Complaint must be dismissed for the independent reason that they have failed to allege that Harvard engaged in unlawful conduct by making investments in prisons or companies that provide goods and services to prisons; and indeed Harvard’s investments are entirely lawful,” the motion reads.

The motion to dismiss also states that the plaintiffs’ “false advertising claims” should be dismissed. The authors of the motion argue that the plaintiffs in the lawsuit failed to demonstrate that the University made any “false or misleading” statements of fact.

The lawsuit’s definition of false advertising is based on a state law, M.G.L. c. 266, § 91, which prohibits “untrue or misleading advertisements.” The motion to dismiss asserts that the plaintiffs failed to demonstrate that Harvard’s information constituted “advertising” under the statute, and that the plaintiffs constituted a “aggrieved party.”

Harvard Prison Divestment Campaign published a press release Wednesday opposing the University's motion.

“In the midst of uprisings for Black Lives across the country and throughout the world, Harvard continues to defend its racist profiteering through its investments in the prison-industrial complex,” the press release reads. “These investments uphold and expand an industry that targets and cages Black people.”

Xitlalli Alvarez Almendariz, a plaintiff in the lawsuit and a doctoral student in Anthropology, linked the lawsuit to the ongoing movements for racial justice and prison abolition. Alvarez Almendariz criticized Harvard’s response to several recent high-profile police killings.

“It seems like the response is just more words and fluffy language and less concrete actions around the things that could actually constitute real transformation of the institution and address anti-Black racism, and also address how systemically Harvard is complicit in anti-Black racism, such as its investments in the prison industrial complex, such as its denial of tenure of Black faculty and other faculty who are making real critiques at the systemic level,” Alvarez Almendariz said.

Amanda T. Chan, a plaintiff in the lawsuit and a recent graduate of Harvard Law School, referenced Bacow’s characterization of the murder of George Floyd as “senseless” in arguing for divestment from the prison industry.

“If the killing of George Floyd was senseless, then what are the investments in these weapons that are used to kill Black people?” Chan said. “Some might say that by extension, they’re senseless as well.”

—Staff writer Ellen M. Burstein can be reached at ellen.burstein@thecrimson.com. Follow her on Twitter @ellenburstein.

—Staff writer Michelle G. Kurilla can be reached at michelle.kurilla@thecrimson.com. Follow her on Twitter @MichelleKurilla.