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Students Prepare For Hearing To Dismiss Lawsuit Urging Divestment

Students assemble outside Massachusetts Hall at a rally in April 2013 to call for Harvard to divest its endowment from fossil fuels.
Students assemble outside Massachusetts Hall at a rally in April 2013 to call for Harvard to divest its endowment from fossil fuels.
By Theodore R. Delwiche, Crimson Staff Writer

UPDATED: February 11, 2015 at 1:30 a.m.

A group of students suing the University to divest from fossil fuels is preparing for a hearing on motions by Harvard and the attorney general’s office to dismiss the case. The hearing was scheduled for Tuesday but has been called off due to inclement weather.

In November, seven students formed what they called the Harvard Climate Justice Coalition, representing themselves without a lawyer. The group argued in an 11-page complaint that Harvard’s continued investment of its endowment—valued last month at $35.9 billion—in fossil fuel companies represents “a breach of [Harvard’s] fiduciary and charitable duties as a public charity and nonprofit corporation.” The complaint also alleged that the University has been intentionally investing in “abnormally dangerous activities.”

All the plaintiffs in the case are members of Divest Harvard, a University-wide group founded in 2012 with the mission of encouraging Harvard to divest its holdings from fossil fuel companies. The students are seeking an injunction ordering the University to withdraw its direct and indirect holdings from fossil fuel companies.

Students assemble outside Massachusetts Hall at a rally in April 2013 to call for Harvard to divest its endowment from fossil fuels.
Students assemble outside Massachusetts Hall at a rally in April 2013 to call for Harvard to divest its endowment from fossil fuels. By Christopher J Magnani

In December, Harvard filed a motion for the case to be dismissed. The motion, filed by Martin F. Murphy and Jennifer A. Kirby on behalf of Harvard Management Company—the body responsible for investing the endowment—and the president and fellows of the University, argued that under Massachusetts law “standing to contest a charitable organization's management is the exclusive province of the Attorney General, except in extraordinary circumstances not present here.”

The motion also asserted that investment in fossil fuels is lawful, precluding the attorney general from bringing a case against the University for “misappropriation” of its funds.

“Permitting claims like the Plaintiffs' to proceed would improperly compromise the inherent authority of Harvard and other non-profit entities to manage their own affairs, entangling courts in the myriad internal decisions inherent in running a charitable organization—a result plainly inconsistent with the public interest and well-settled law,” the motion read.

A motion to dismiss the case, filed on behalf of former Attorney General Martha M. Coakley on Dec. 10, argued that the plaintiffs’ “status as Harvard students does not give them standing to assert claims of mismanagement against Harvard fiduciaries.”  The Harvard Climate Justice Coalition responded in early January with a memorandum to the University and also one to Coakley.

Many legal experts have noted the novelty of the case and worried that it may be too narrow. The students suing, though, say that a legal challenge is another tool in their arsenal to put pressure on the University to divest and disagree with the premise that because they are students, they do not have standing to sue.

“[The] Harvard Corporation should not be able to hide behind the fact that we are students who are here for four years,” Harvard Law School student and one of the plaintiffs Joseph E. Hamilton said. “They should still be accountable for their charitable duties.”

Hamilton added that he expects the judge to return a decision on the motion to dismiss within a few months and if the case is dismissed, the Climate Justice Coalition will file an appeal.

—Staff writer Theodore R. Delwiche can be reached at theodore.delwiche@thecrimson.com. Follow him on Twitter @trdelwic.

CLARIFICATION: February 11, 2015

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