Judge Denies Harvard’s Request for Summary Judgment on Therapy Notes Dispute in Comaroff Harassment Suit

A federal judge denied Harvard’s motion for summary judgment on one of the counts of a lawsuit filed last year by three Anthropology graduate students who alleged the University failed to properly handle years of sexual harassment and retaliation reports against professor John L. Comaroff.

U.S. District Court Judge Judith G. Dein denied Harvard’s motion to rule in its favor without a trial on the last of 10 counts in the lawsuit, which alleges that Harvard violated the law by obtaining and disseminating the therapy notes of one of the plaintiffs, Lilia M. Kilburn.

The tenth count, on behalf of Kilburn, alleges Harvard breached fiduciary duty and illegally invaded Kilburn’s privacy by obtaining Kilburn’s private therapy records from a non-Harvard therapist and sharing them with Comaroff.

Harvard says Kilburn encouraged the University’s Office for Dispute Resolution to obtain these records and knew they would be shared with Comaroff as part of Harvard’s Title IX investigation process. The two parties argued over the matter in filings last fall.

In a 23-page ruling, Dein wrote that the facts of the case were not clear enough to merit summary judgment, adding the “facts are sufficient at this stage” to “support” Kilburn’s claim that Harvard’s actions constituted a breach of fiduciary duty.

Dein also wrote that Kilburn was “entitled” to “sufficient time and opportunity for discovery.”

“This court concludes that the extent of Ms. Kilburn’s consent is unclear and in dispute, and that this issue must await further development of the record,” Dein wrote. “Harvard is relying on ambiguous documents and disputed oral conversations that have been untested by discovery.”

Harvard spokesperson Rachael Dane declined to comment on the ruling.

The University also asked Dein to dismiss counts one through nine of the lawsuit, which detail the plaintiffs’ allegations of Harvard’s indifference to complaints of sexual harassment and professional retaliation. The motion for dismissal of these counts is still pending an order from the judge.

Kilburn, Margaret G. Czerwienski, and Amulya Mandava, three graduate students in Harvard’s Department of Anthropology, originally sued Harvard last February, saying the University’s “deliberate indifference” allowed Comaroff to assault Kilburn and retaliate against Mandava and Czerwienski.

“All three Plaintiffs repeatedly complained to Harvard administrators,” the February filing said. “But the University brushed them aside and opted to protect its star professor over vulnerable students.”

Comaroff has repeatedly denied all allegations of harassment and retaliation made against him.

After the plaintiffs submitted an amended complaint in June with further instances of alleged sexual harassment during Comaroff’s tenure at the University of Chicago, Harvard resubmitted its motions to dismiss counts one through nine and for summary judgment of count ten in July.

In a memorandum supporting the motion for summary judgment, Harvard argued that Kilburn had consented to the ODR contacting and interviewing her therapist directly when she told the ODR verbally in an August 2020 meeting that the therapist “should have a bunch of notes or memories” corroborating her account of Comaroff’s behavior.

In a response to the motion, Kilburn’s attorneys argued Harvard failed to obtain necessary written authorization from Kilburn to access her medical records and took Kilburn’s “ambiguous” remarks as “license to obtain full psychotherapy progress notes from two private sessions.”

On Monday, Dein described Harvard’s arguments as “unpersuasive.”

“The record amply supports a finding that Harvard knew or should have known that Ms. Kilburn’s therapist required written, specific authorization before she was able to release personal medical information,” Dein wrote.

“There is also evidence, even at this pre-discovery stage, that Harvard should have known that the therapist did not have the authorization she required, but that ODR nevertheless interviewed the therapist at some length and obtained information which went beyond anything that Ms. Kilburn had said the therapist could provide,” Dein added.

In an emailed statement, attorneys Russell L. Kornblith, Sean R. Ouellette ’12, and Carolin Guentert, who represent the three graduate students, wrote they were “heartened” by the judge’s ruling.

“Harvard knew or at least should have known that interviewing Ms. Kilburn’s therapist and asking for her medical records required written, specific consent, yet Harvard failed to get that consent,” they wrote. “Students have the right to access their school’s Title IX process without fearing that the school will obtain their private medical information and disclose it to their harasser without their consent.”

In a statement, Ruth K. O’Meara-Costello ’02, an attorney for Comaroff, wrote that the professor is not a party to the lawsuit and did not take a position on Harvard’s motion for summary judgment.

Comaroff “disputes Ms. Kilburn’s characterization of his participation and statements in ODR’s process,” O’Meara-Costello wrote.

“Discovery in this case will reveal that he did not sexually harass or retaliate against any of the plaintiffs,” she added.

The Department of Justice submitted an amicus brief on behalf of the plaintiffs in September, arguing that Harvard could still be held liable for allegations that Comaroff retaliated against the students who warned others of his alleged misconduct.

Allegations against Comaroff were first publicized in a 2020 investigation by The Crimson. Faculty of Arts and Sciences Dean Claudine Gay — who was elected as the University’s 30th president last December — put Comaroff on paid administrative leave shortly afterward, before placing him on unpaid leave.

Comaroff returned to teaching in the fall 2022 semester, prompting a student walkout and a protest by Harvard’s graduate student union. A similar protest followed this spring, with more than 100 students participating in a walkout.

—Staff writer Rahem D. Hamid can be reached at rahem.hamid@thecrimson.com.

—Staff writer Elias J. Schisgall can be reached at elias.schisgall@thecrimson.com. Follow him on Twitter @eschisgall.