Madeline R. Lear
Harvard’s Legal Defenders: Behind OGC
As Harvard faces increased regulatory pressure, the influence of its internal legal apparatus grows
By Theodore R. Delwiche and Noah J. Delwiche, Crimson Staff Writers

In the past 12 years, as many of Harvard’s top University offices have experienced turnover, at least one top position has remained constant.

Tucked away in Massachusetts Hall, in close proximity to the cycle of University presidents, Robert W. Iuliano ’83 has for over a decade sat at the helm of Harvard’s internal arm of lawyers who together make up its centralized Office of the General Counsel.

With 17 decorated lawyers, often out of sight, OGC defends Harvard from outside lawsuits. The office, however, also has a significant, and growing, role on campus. Top administrators consult OGC frequently on issues ranging from online education to Title IX.

OGC also gets involved behind the scenes. In the fall of 2012, when administrators wanted to search the email accounts of the College’s resident deans in an effort to plug a leak of information in connection with the Government 1310 cheating scandal, they called OGC. From start to finish, OGC dictated virtually every action to Harvard University Information Technology, including a round of searches found not to be in accordance with Faculty of Arts and Sciences policy. Amid faculty outcry, Dean of the College Evelynn M. Hammonds, who authorized the final round of searches, stepped down; OGC, whose attorney relayed administrators’ instructions, largely avoided public scrutiny.

OGC’s relative anonymity, however, should not be confused with irrelevance. Though the office’s roster of attorneys has not grown significantly in recent years, OGC’s influence and responsibilities have. Harvard’s prominence makes the University a popular target for lawsuits, and heightened federal regulations like Title IX make adequate compliance an increasingly complex goal. And as Harvard itself grows administratively and expands overseas and online, there are more internal policies to interpret at home. Increasingly involved in those decisions is an unseen apparatus of professionals charged with protecting Harvard and its interests.

“If you can think about a legal issue out there, we touch it in almost all cases,” Iuliano said in May.

CALL IN THE LAWYERS

When then-University President Derek C. Bok first established OGC in the 1970s, he wanted to reduce outside legal fees and, in an increasingly regulatory environment, hire lawyers with deep knowledge of the complex University who would oversee legal compliance.

"The combination really of expense and expertise just began to tilt very much in favor of developing your own legal staff," he said this month.

Although University administrators relied on the office and occasionally sought legal guidance, OGC operated more or less out of sight but on behalf of top administrators. Neil L. Rudenstine, who served as University president from 1991 to 2001, said his interactions with the general counsel’s office were “relatively infrequent.”

For today’s Harvard leaders, that is no longer the case.

When asked in a May interview how often she interacts with Iuliano, University President Drew G. Faust said she had met with him two days before and emails him often; his office is in Mass. Hall. Harvard Business School Dean Nitin Nohria said he “must have 100 conversations a year” with OGC about contracts in the school’s international employment and financial operations. Dean of the College Rakesh Khurana said conversations with OGC are “continuous” and that he has consulted with the office about issues that pertain to “important aspects of the College,” such as Title IX.

“I believe the role of the OGC here has expanded,” Faust said.

As an influential office connected to the central administration, OGC walks a fine line, especially on a campus where faculty have loudly challenged central decisionmaking and gravitated toward a philosophy of “every tub on its own bottom.”

While all administrators interviewed for this story praised the work of the office, some lawyers fear that general counsels may be making too many decisions for universities.

“The job of Harvard’s lawyers was protecting the intellectual integrity and freedom of its faculty and of its students,” said author and civil rights attorney Harvey A. Silverglate, who attended Harvard Law School in the 1960s. “And now the role of the University counsel is to make sure that the bureaucrats are not angry at Harvard.”

Silverglate, who has written on a national trend of increasing numbers of administrators on College campuses, said lawyers have swarmed campuses “like a locust plague” on universities since the 1980s and that now instead of faculty making policy decisions, general counsel lawyers and administrators take the lead.

So far, however, OGC has largely avoided faculty ire, and Faust and Iuliano say the office is responding to pressures from the government that in some cases require a more unified approach. Faust also discounted the argument that OGC might take policy decisions away from faculty actors.

“If faculty or others are uncomfortable...what they are uncomfortable about is the increasing scrutiny and regulation that were subjected to,” she said. “And it's the OGC as the arm of the University that responds to that.”

ANSWERING SUBPOENAS

Like all universities across the nation, Harvard is subject to legal disputes. But administrators and legal experts say that Harvard, because of its international reputation and prestige, faces increased legal scrutiny and attention. As the chief legal defenders of the University, OGC has increasingly had to defend against external litigation.

"If your goal is not to win the suit, but to get publicity, then there's no better target,” said Howard E. Gardner '65, a professor at the Graduate School of Education.

Beyond the publicity, some administrators say that bringing a lawsuit against Harvard in particular raises the stakes of a ruling, meaning it is not just media reputation at risk. “Filing a lawsuit against Harvard makes it more likely that…whatever happens in that lawsuit will then become precedent for lots of other schools, and people will pay attention,” Nohria said.

And though he does not often speak to the press—since he assumed his post as University general counsel and vice president in 2003, he has rarely spoken with The Crimson on the record—Iuliano does help manage Harvard’s publicity, maintaining a “very close” relationship with Harvard’s public relations shop, Harvard Public Affairs and Communications.

“Much of what we do exists on the public boundary,” Iuliano said, adding that his office works with HPAC to “make sure that we are talking about that in a way that is responsible and consistent with the things that matter to us.”

When Harvard comes under legal attack, Iuliano vocally defends the University. Earlier this month, when more than 60 Asian-American groups charged that Harvard was discriminating in its undergraduate admissions processes, Iuliano wrote in a statement on HPAC’s website that the College’s admissions policies are “fully compliant with the law.”

He has also notified members of Harvard’s Board of Overseers and the Corporation about similar allegations, suggesting press inquiries be referred to HPAC and asking for Overseers’ and Corporation members’ “forbearance” when communicating about a case, according to hacked and published emails from Sony Pictures Entertainment CEO and Overseer Michael M. Lynton ’82.

The public relations strategy is necessary, in part, because of the volume of litigation that Harvard experiences. To deal with these cases, OGC typically hires outside firms who work with one internal attorney on litigation, meaning that staff normally do not interact with lawsuits on a daily basis. In 2013, the most recent year for which public tax filings are available, Harvard spent $13.04 million on outside legal fees, though Iuliano said some of that work may have been coordinated by offices other than OGC.

Now more than in the past, the University, through OGC, appears to be on the defensive. “This year is different. There’s been more litigation,” Iuliano said.

The list is long: A federal probe into the College’s Title IX compliance is ongoing. Another investigation into Harvard Law School finished in December when the government found the school in violation of Title IX and brokered a voluntary resolution agreement.

Suits from other parties have also been plentiful. In addition to the lawsuit and separate complaint challenging its affirmative action policy, Harvard was formally sued this spring by former associate Anthropology professor Kimberly Theidon, who claims that the University denied her tenure in part out of retaliation for comments she had made in support of victims of sexual assault.

The University is also the target of a lawsuit charging that its online content violates the Americans with Disabilities Act because it lacks captions. And although a judge recently dismissed a case from some student environmental activists who argued that the University was engaging in “abnormally dangerous activities” by investing in fossil fuel companies, the group plans to appeal.

“Direct legal action against anyone here—the first phone call is to OGC. We don't answer subpoenas,” said Sarah E. Wald, chief of staff and senior policy adviser at the Kennedy School of Government.

INCREASING INFLUENCE

As the University faces increased scrutiny and federal guidance on regulations ranging from Title IX to real estate, property, and intellectual rights, OGC’s importance and influence at Harvard is only growing. More so than ever before, the federal government is regulating and looking to intervene in University affairs, even the tenure process, according to higher education experts.

Across the nation, many institutions have just recently propped up or increased the size of their offices of general counsel, said Jonathan R. Alger, who has worked in general counsel offices and now serves as president of James Madison University.

General counsels are also increasing their workloads, according to Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law. “There's never been a time where general counsels were more worked than they are right now,” Lake said.

The anti-sex discrimination law Title IX in particular has been a hot spot of discussion on campuses this year, as the federal government opened more investigations and released additional guidance documents. Harvard is no exception to the pressure, and in July 2014, the University drastically modified its approach to handling sexual violence on campus.

“Society as a whole is much more regulated, and as there’s an increased set of regulatory obligations that every actor in American society has to meet, we’re not immune from that, and we have to figure out how to do what we’re trying to do within that context,” Iuliano said.

Federal regulations go far beyond Title IX. The rulebook has also made it more difficult to navigate federal grant applications, and as a result Harvard’s researchers have increasingly turned to OGC for advice: Ara Tahmassian, the University’s chief research compliance officer, said his department in the Office of the Vice Provost for Research has increasingly relied on OGC to provide advice to professors submitting research proposals or funding applications to his office. Vice Provost for International Affairs Jorge I. Dominguez, similarly, said he is in contact with OGC lawyers daily to maintain overseas research centers, which come with the unique legal requirements of the countries that host them, and coordinate study abroad programs.

To both handle this workload and defend Harvard in court, OGC tries to attract the best, and it does, for largely the same reason Harvard is a target for lawsuits: In the business of university attorneys, Harvard’s OGC has a strong reputation, lawyers say. The positions are quite competitive and the turnover in staff is infrequent, Iuliano said. According to Bok, a single opening on OGC, as he learned during his presidency, once attracted about 1,000 applicants.

OGC’s current attorneys—many of whom are graduates of Harvard, Yale, or Columbia law schools—have been on staff for an average of 13 years each, even if not for relative monetary gain. Margaret H. Marshall, Harvard’s former general counsel, said she would only leave Harvard for one position, as she did in 1996—to serve on the Massachusetts Supreme Judicial Court.

To some, Harvard’s legal apparatus has earned the University a formidable reputation. “Harvard is known for litigating aggressively,” Brian O’Reilly, an attorney who is facing Harvard’s Office of Technology Development in ongoing litigation, wrote in an email. “My client hired me because he knew that if he sued Harvard he was going to be in for a long tenacious battle. And that is exactly what’s happened.”

THE NEW POLICYMAKERS

OGC’s role transcends assisting professors with legal paperwork. With the increased external regulations and internal institutional complexity, Harvard leaders also rely on OGC for policy guidance. This side of OGC often goes unnoticed by the public, but is becoming increasingly more prevalent, and not without controversy.

In general, when it comes to forming policy, administrators now frequently consult OGC, whether at the beginning stages of or after creating policies.

“Any policy that you want to create at this school which reflects any change, you want to make sure that the OGC will at least take a quick look at it and make sure that you’re not doing something that unwittingly…puts either the University or the individual [at risk],” Nohria said.

In 2008, when the Department of Education’s Office for Civil Rights investigated Harvard Medical School’s Title IX compliance, OGC attorney Ellen F. Berkman ’86 communicated frequently with the lead investigators. Berkman persistently rebutted claims that the school had failed to act in compliance with Title IX but, according to case documents obtained through a Freedom of Information Act request, suggested a set of policy modifications.

“This proposal would likely have to be reviewed by administrative or faculty committees,” Berkman wrote. OCR eventually accepted modifications and entered the Medical School into a voluntary resolution agreement.

That was hardly the first, or last, time OGC played a key role in policy formation. And while the office, by design, represents the singular interest of the University, individual schools, professors, and administrators can disagree, leaving OGC in a mediatory position that sometimes raises more than just legal questions.

Most recently, this past year, professors at Harvard Law School sparred with the central administration over the University’s new Title IX policy and procedures, which leaders designed to bring further consistency to varying approaches across schools. When Law School professors lambasted the central office as stacked against the accused and later expressed their concerns to administrators, Faust allowed them to work with Iuliano to come up with a school-specific set of procedures.

“His role in that was trying to come up with a solution that would address the deeply felt concerns of the Law School faculty but also meet the criteria that were necessary to meet the University's commitments and obligations,” Faust said. “So he was negotiating on behalf of the University for an agreement that would work for everybody in this instance, which is what he and I discussed and what I asked him to do.”

Speaking in broad terms, Iuliano said there are occasions where “sufficient conflict” among constituents means that a decision whether a policy should stick with a decentralized or more unified approach “gets moved to a different part of the organization.”

For some, however, OGC’s involvement in administrative decisions—largely unseen by faculty members—raises questions. Sharon L. Howell, a former College resident dean, said OGC’s role in 2013’s email search scandal, detailed in a report by an outside lawyer, was just one instance where the office may have “played more of a leading role than was appropriate.”

Although Howell said OGC plays a critical function in advising leaders, she said there was a sense among some faculty that the balance had tipped away from one of supplementary guidance.

“The administration would be consulting General Counsel and following General Counsel’s lead rather than following the lead of faculty who govern the school,” Howell said, describing the impression of some faculty members. “Instead of just being counsel, they were driving decision-making based on some fear of litigation.”

Although Iuliano and administrators insist the office has not usurped administrative or faculty influence, that the office plays an ever more important but mostly silent role at the University seems unambiguous.

On a quiet Wednesday afternoon this month, after Faust answered a few more questions from The Crimson, she led two reporters out of her office, exchanging goodbyes as they went. After they were gone, she said earlier, she would prepare for a scheduled meeting with Iuliano.

—Staff writer Noah J. Delwiche can be reached at noah.delwiche@thecrimson.com. Follow him on Twitter @ndelwiche.

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