A group of Harvard students, frustrated by the university’s refusal to shed fossil fuel stocks from its investment portfolios, is looking beyond protests and resolutions to a new form of pressure: the courts.
The seven law students and undergraduates filed a lawsuit on Wednesday in Suffolk County Superior Court in Massachusetts against the president and fellows of Harvard College, among others, for what they call “mismanagement of charitable funds.” The 11-page complaint, with 167 pages of supporting exhibits, asks the court to compel divestment on behalf of the students and “future generations.”
Students at Harvard joined the broader movement for fossil fuel divestment that began two years ago at Swarthmore College. And while some schools have adopted new divestment policies, including Stanford University and Pitzer College, Drew Gilpin Faust, Harvard’s president, has argued that dropping fossil fuel investments is not “warranted or wise.” The university’s endowment, she said, “is a resource, not an instrument to impel social or political change.”
This spring, Ms. Faust, citing the scientific consensus that “climate change poses a serious threat to our future — and increasingly to our present,” announced that Harvard would integrate “environmental, social and governance factors” into its investments in ways that are “aligned with investors’ fiduciary duties.”
But that shift in tone did not go far enough for many students. “It became more and more clear they were just reaching a dead end with the university and the administration,” said Kelsey Skaggs, a member of the group of plaintiffs.
The students’ legal arguments are unusual. In one section of their complaint, they invoke a tort, “intentional investment in abnormally dangerous activities,” that has no apparent precedent in law. Their other major legal argument accuses the school of “mismanagement of charitable funds,” and cites the original Harvard charter with the Massachusetts Bay Colony in 1650 as well as state case law that allows those with a “special interest” in an organization to bring claims concerning mismanagement of its funds.
The students acknowledge that they may need a sympathetic judge to find that they fit within the legal definitions of those having a “special interest,” compared with the general population, and are thus entitled to sue. Ted Hamilton, a law student and a member of the student plaintiffs group, called their request a “slight expansion” of current law that “does not depart in any radical way from the course that the courts have been taking.”
A Harvard spokesman, Jeff Neal, said of the students’ filing, “We expect that a court will need to consider the legal basis of their complaint.” While acknowledging that “climate change poses a serious threat to our planet,” he continued: “We agree that threat must be confronted, but sometimes differ on the means. Harvard has been, and continues to be, focused on supporting the research and teaching that will ultimately create the solutions to this challenge.”
The students said that they drew inspiration from John Bonifaz, a graduate of Harvard Law School who, with other students, sued the university in the 1990s over racial diversity in the law school’s hiring practices. His suit was ultimately unsuccessful, but it was widely considered influential in nudging the school’s actions.
Mr. Bonifaz, a MacArthur grant recipient who now practices law in Massachusetts and is active in voting rights issues around the country, said the students had been in contact with him. They are making “a creative and powerful argument,” he said, “and I think it can shift the overall debate.”
The Harvard students, he added, are taking activism over divestment “to another level by grounding it in a legal argument.”
While a suit like the one filed by the Harvard students could conceivably open the door to all manner of student protest suits over a range of issues, the dire nature of climate change, the students said, makes their suit unique.
The decision to place climate change before the courts was not taken lightly, the students said. The judicial system has been slow to take a role in the climate debate, Ms. Skaggs acknowledged. In her home state, Alaska, a lawsuit against energy industry companies by Kivalina, a sea-threatened town, died in the courts. The Supreme Court in 2011 turned away a suit brought by eight states, New York City and environmental groups. Lawsuits brought on behalf of children to fight climate change have also met with judicial skepticism.
Lee Goldstein, a clinical instructor in the Harvard Law School legal aid bureau, said that the issue of whether the students were legally qualified to sue, known as standing, could be fatal to the students’ suit, as it was to the earlier suit brought by Mr. Bonifaz and others. Still, he said, “I think it’s a plausible theory that might give a court the opportunity to do the right thing.”