Lawsuit Decision and Official Statement

Founding member Jarrett Drake opened the hearing with a statement contextualizing HPDC’s lawsuit in the history of freedom suits: “I am here this afternoon, along with my fellow plaintiffs, in the spirit of a freedom suit. In the antebellum era, enslaved people filed lawsuits in protest of their enslavement. In the course of my scholarly research, one case always sticks out. In the late 1850s, seventeen people enslaved in Princess Anne County, Virginia, filed a freedom suit claiming that the man who had claimed ownership of them dictated in his will that they be emancipated upon his passing. However, after the enslaver’s death, his executor demanded they still be held in bondage. And so, these courageous seventeen souls went to the county circuit court to demand ‘a complete and perfect title to their freedom,’ relief which in their words would be ‘just and proper.’ The seventeen people were soon thereafter granted their perfect title.” But, overall, U.S. Courts upheld the legality of slavery and denied Black people their freedom. With Dred Scott, the weak moral vision and cowardice of a Judge ensured the widespread bloodshed and destruction of a Civil War.

The oral argument followed the Uprising of Summer 2020, where the world watched as cities all over the United States staged protests against the brutal and white supremacist rule of police forces — more accurately described as taxpayer-funded militarized goons — and soon after, corporate entities started reciting “Black Lives Matter” as if their investment returns depended on it. But make no mistake. These corporations only believe Black lives matter to the extent that Black people can be exploited for their labor and consequently fatten the corporations’ profits. The judges who support Black Lives Matter nevertheless sentence Black and brown poor people to violence in cages every single day. Banks prey upon desperate poor Black and brown people who need to support their families with unfair terms and insidious means of wealth extraction. And powerful, prestigious institutions such as Harvard — which refuse to actually state that “Black Lives Matter,” but dare to call George Floyd’s death “senseless” — profit in cold, capitalist cash through its investments in companies that profit from prisons.

The world has suffered under the reign of the United States’ first Black president and it continues to do so under President Biden and Vice President Harris’s administration. Biden and Harris are both architects of mass incarceration and proudly supported the systemic and racist caging of Black and brown people across the nation and beyond its violent borders. These liberals are no friend to those who seek Black liberation.

And the same goes for the Harvard leadership. President Bacow and William Lee have one job: to uphold the status quo. Harvard flourishes under the status quo. Harvard reinforces the status quo. Harvard profits from the status quo. This is part of the project of the American empire — take land, destroy the people, and oppress any of those who dare challenge this practice.

Mr. Drake summarized this in his opening statement as well:

 
“By its own admission, Harvard once profiteered from chattel slavery. We allege that although the particulars may have changed, the blood money remains the same. And so I am here in court, like my foremothers and forefathers before me, to speak my truth, to cleanse the crimson stain off Harvard’s endowment, and to get closer to a world where all Black people can finally and fully get a perfect title to our freedom.”

On January 7, 2021, the Superior Court rendered its decision and granted Harvard’s Motion to Dismiss. We lost.

Our arguments, and the court’s response

Our first argument was that, as donors, we were entitled to a degree of deference from the Harvard Corporation. The court rejected this. Judge Barry-Smith wrote:

“The plaintiffs, nonetheless, argue that they have a contractual right to influence Harvard’s investment decisions in light of the Charter’s reference to the ‘will of the donors,’ which they claim gives rise to special interest standing. The Charter states that Harvard’s endowment must be disposed of ‘according to the will of the donors.’ Contrary to the plaintiffs’ arguments, this provision can only be construed as requiring the charitable organization (i.e., Harvard) to uphold the terms of gift agreements and nothing more.”

 
Our second argument was that Harvard’s anti-slavery public sentiment, especially the language in President Drew Faust’s Harvard and the Legacy of Slavery statement, was in contradiction to Harvard’s actual practice and attitudes towards anti-slavery research and organizing and thus constituted false advertising. The court rejected this, writing:

“[I]t is clear that Harvard did not make representations of fact, because whether Harvard’s efforts were adequate is not a factual matter tha[t] can be proven; it is a matter of opinion. In other words, whether Harvard’s investments in private prisons and prison related enterprises deepen Harvard’s ties to slavery is a subjective opinion. Plaintiffs are free to advocate that Harvard should do more, to demand divestment, and to urge others to draw a connection between slavery and modern incarceration policies. But they have not stated a legal cause of action.”

 
In short, the court agreed with the arguments made by the Massachusetts Attorney General and the former prosecutor Martin Murphy, now a partner at the prestigious law firm Foley Hoag (indeed, many Harvard Law students trickle to that firm for a starting salary of $200,000 a year). The Attorney General asserted that wrongful conduct related to non-profit investment strategies was a domain of the State Attorney General and her domain only — yet when the Judge asked the Attorney General’s representative whether the AG had ever bothered to investigate Harvard’s and like-institutions in violating the spirit of their Charters, the representative stated, “I don’t know that I can direct you to a specific case off the top of my head that parallels the allegations in this complaint, but it is entirely within the realm of the work that we do day in and day out.” We have yet to see any evidence that the Attorney General Maura Healey and her team investigate institutions for their investments in prisons.

Notably, this is the same Maura Healey who denied wrongdoing when there were two Massachusetts labs revealed to have been tampering with drug reports, leading to faulty drug convictions. Obviously, these drug convictions disproportionately impacted Black and brown people, but it appears that the Attorney General was more concerned about her reputation than she was about the lives of those living in cages due to the mistakes of her office.

The former prosecutor, President of the Boston Bar Association and one of Harvard’s favorite lawyers for litigation matters, Mr. Murphy characterized the Plaintiffs as children:

 
“And, frankly, your Honor, that’s really not much — that’s a legal principle that reflects a fairly basic moral understanding that is — you know, goes back to elementary school. It’s the equivalent of saying the fact that you had your fingers crossed behind your back when you agreed to do something or agreed to make a gift didn’t — doesn’t give you an excuse not to do what you promised or to make the gift that you promised to make.”
The Plaintiffs disagree with Mr. Murphy’s characterization of the claim. Harvard’s promise to investigate and sever its ties to slavery is in direct contradiction to its choice to actively invest and profit from the same carceral systems that enslave and capture Black people is immoral. We do not see how our position does not reflect a basic moral understanding.

And we resent the characterization of Black liberation as childish — what is more childish is the avoidance of a painful and difficult reckoning with the reality that one may have built their entire career off of the backs of poor Black and brown people. Mr. Murphy is a self-proclaimed advocate against the death penalty — we can only urge Mr. Murphy to find some of the compassion he has for those sentenced to death by his government to also apply to those who find themselves in cages, deprived of all human needs, and subject to becoming a commercialized product for institutional investors world-wide.

Looking ahead

Although the Harvard Prison Divestment Campaign has chosen not to pursue an appeal, many of the original goals of the lawsuit were successfully met. First and foremost, we have successfully forced Harvard to take a public stance on our accusations of investments in slavery — their position is that prisons are not slavery. They have hired so many academics to explore the ties between prisons and slavery. They even accepted the archives of Dr. Angela Y. Davis herself. They now are touting their Radcliffe Institute as a anti-racist institution. But to even reconsider their investments in the systemic caging of human people? It is clear that Harvard’s answer is no.

Now, many of our beloved supporters ask us: what’s next? Just as it took ten years of tireless organizing to force Harvard to divest from South African apartheid, the Harvard Prison Divestment Campaign’s journey does not end here. Most importantly in this time, we must center the suffering and the liberation of the currently incarcerated — especially as our government officials and white supremacist policies fail to save them from the COVID-19 pandemic, in addition to the savage and widespread violence that regularly occurs within the prison walls.

The student movement at Harvard in the 80s and 90s surrounding divestment from firms with ties to South Africa’s apartheid government took many years, and received a lot of pushback among overall successes. Likewise, abolitionist efforts on campus and in general may have long timelines, but we remain committed to our work. Namely, HPDC is currently prioritizing power-building practices, political education, and working in solidarity with abolitionist organizations at other universities. The lawsuit was a groundbreaking one in many ways, and one of many courses of action to continue putting pressure on Harvard to fully divest from institutions of slavery.

We end this statement now with Xitlalli Alvarez’s statement in one of our briefings:

 
“The COVID-19 pandemic now exposes prisons, jails, juvenile detention facilities, and migrant detention centers throughout the world for what they have always been: death traps. Prisons are where those at the margins suffer without recourse. The basic necessities of life — soap, clean water, communication with loved ones — are often impossible to access for those behind bars. Imprisonment renders the very ability to socially distance impossible. Given this context, the issues raised by Plaintiffs’ Complaint are more pressing than ever.”