On December 12, 2023, the Harvard Corporation unanimously reaffirmed its support for President Claudine Gay's continued leadership despite her controversial testimony before the U.S. Congress and allegations of plagiarism. Harvard is a corporation and one of its two governing bodies is somewhat confusingly also referred to as "Harvard Corporation" or simply the "Corporation".

In this December post, I noted "Ever since [the 1650 charter], principal fiduciary responsibility for Harvard’s institutional well-being has been vested in the President and Fellows of Harvard College, more familiarly known as the Harvard Corporation". Report of the Harvard Corporation Governance Review Committee Report to the University Community (Dec. 6, 2010) (emphasis added). To whom is this fiduciary responsibility owed?

In recent article in The Wall Street Journal, Douglas Belkin and Melissa Korn quoted an unnamed faculty member as saying that the corporation answers only to G-d. However, a fiduciary relationship is "any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party." Wolf v. Superior Court, 107 Cal.App.4th 25, 29 (2003) (internal citations omitted). Thus, the acknowledged status of the Harvard Corporation's members as fiduciaries would appear to impose earthly obligations in addition to divine accountability.

As I noted in this earlier post, Harvard is a very old corporation that predates the United States by more than a century. Accordingly, Massachusetts or English law (Harvard was incorporated when Massachusetts was an English colony) is likely to determine to whom fiduciary duties are owed and who may enforce breaches of those duties. There can be little doubt, however, that the members of the Harvard Corporation would be facing derivative lawsuits if Harvard were governed by modern corporate laws applicable to for-profit corporations.