On the University of California, IV: Sexual Harassment, “Respect,” and Tenure at Berkeley

BY HANK REICHMAN

This is the fourth in a series of posts on issues in the University of California system, the nation’s premier public research institution. Previous posts in the series may be found here, here, and here

On Friday, the University of California at Berkeley announced that Provost Claude Steele is stepping down from his position, citing his wife’s poor health.  “I can no longer offer UC Berkeley the time and level of commitment it needs from its (executive vice chancellor/provost), while at the same time being a part of my family in the way I want to be,” Steele said.

There’s no reason to question this explanation, but Steele’s resignation comes amid a widely publicized sexual harassment scandal during which the provost has been sharply criticized for his role in the discipline of prominent faculty members and administrators accused of sexual harassment, including his initial decision to allow law school Dean Sujit Choudhry to remain in his job after a campus investigation found him to have violated the sexual harassment policy by giving his executive assistant unwanted hugs and kisses.  Steele was also criticized for what some have deemed a conflict of interest: He was appointed to the law school faculty with the support of his subordinate, Choudhry, while the dean was being investigated. Last month, Steele resigned his law school appointment.

The harassment scandal has raised important issues not only of campus safety, sexism, and disparate enforcement, but also of the relationship between harassment and speech and between abuse and “disrespect.”  It has also raised important questions about privilege, tenure and ultimately academic freedom.

The scandal first surfaced last summer when investigators found that another Cal professor, famed planet hunter Geoffrey Marcy, had violated UC’s sex harassment policy repeatedly between 2001 and 2010 by giving massages and other unwanted attention to at least four female students. Administrators privately warned him not to do it again but did not fire the astronomer, who many believed would win a Nobel Prize. Yet word leaked, and by fall, UC Berkeley was being widely criticized for its light-handed approach. Marcy resigned in October.

Choudhry resigned as dean a day after he was suspended from the top-ranked law school after his former assistant filed a sex harassment lawsuit in Alameda County Superior Court. The suit alleges that he hugged, kissed and touched the assistant repeatedly during 2014 and 2015 and that the campus did nothing to stop it.  Berkeley’s Office for the Prevention of Harassment and Discrimination had investigated the claims by Tyann Sorrell and concluded in July that Choudhry “violated policy (and) demonstrated a failure to understand the power dynamic and the effect of his actions on the (assistant) personally and in her employment.”  As punishment at the time, the dean was docked 10 percent of his pay for one year — from $415,000 to $373,500 — and told to apologize. Steele said he also required Choudhry to see a counselor at his own expense.

Previously, Graham Fleming, UC Berkeley’s vice chancellor for research, resigned last April after allegations arose that he sexually harassed a former campus employee. But he retained a position as an international ambassador for the school’s planned Global Campus in Richmond until, in the wake of the Choudhry disclosure, UC system President Janet Napolitano ordered him immediately removed from that job and all other administrative responsibilities.

Napolitano also announced a new sexual harassment review process for administrative leaders. In a letter to all ten UC campus chancellors Napolitano said the rash of cases had underscored the importance of action against sexual violence, assault and harassment.  “This issue is critically important to the University of California, and to me personally,” she wrote. “At a minimum, our employees are entitled to come to work without fear of sexual harassment or sexual violence.”  Napolitano served as an attorney for Anita Hill during the 1991 Clarence Thomas confirmation hearings, when Hill accused the now-Supreme Court justice of sexual harassment.

Napolitano said university leaders must make sure that substantiated cases of sexual misconduct were dealt with “firmly, fairly and expeditiously and that appropriate sanctions are imposed that recognize the serious nature of these claims.”  She announced that a new systemwide committee would review and approve all proposed sanctions against senior leaders who violated UC sexual assault and harassment policies. She also ordered that all leaders — chancellors, provosts, vice chancellors, vice provosts and deans — complete sexual assault and harassment training by March 25.

In a separate letter, Napolitano directed Berkeley Chancellor Nicholas Dirks to bar Choudhry from campus for the rest of the term and institute disciplinary proceedings against him through the Academic Senate, which could result in suspension or dismissal. Napolitano also told Dirks that UC does not intend to defend Choudhry against Sorrell’s claims in court.

But that was hardly the end of it.  Just days later, in mid-March, Berkeley fired assistant basketball coach Yann Hufnagel after an investigation found he violated the university’s sexual harassment policy.  The coach’s firing came four days before Cal was to begin play in the NCAA tournament (they were upset in the first round).  And questions soon arose about whether head coach Cuonzo Martin had responded adequately to initial complaints about his assistant’s behavior toward a female reporter assigned to cover the team.

Then, on April 5, the San Jose Mercury-News reported that a trove of investigative and disciplinary documents released by UC Berkeley in response to a public records act request by the newspaper revealed that 19 employees — including six faculty members — had been found to be in violation of the university’s sexual misconduct policies since 2011.  “The newly released reports, dating back to January 2011, show the university’s Office for the Prevention of Harassment and Discrimination upheld sexual harassment claims against an assistant diving coach, a counselor for disabled students, an adjunct statistics professor and an assistant professor in South and Southeast Asian studies,” the newspaper said.  “The new documents reveal that all of the employees fired as a result of sexual harassment violations were staff members; none were tenured faculty.”  Seven of the victims were students and ten were employees.

Among the cases reported were these:

In sexually explicit emails last fall, Howard D’abrera, an adjunct professor in the Statistics Department, invited a student to Hawaii for a “dirty smoke-filled weekend of unadulterated guilty pleasure and sins,” according to the report. D’abrera also threatened to lower the student’s grade and spread sexual rumors about him if he didn’t accept D’abrera’s offer for a free trip to Australia.

After being placed on administrative leave and receiving a notice of the administration’s intent to fire him, D’abrera resigned in January.

Scott Anderson, a former disability counselor whose job involved coordinating academic services for students with major mood and psychotic disorders, was accused of sending “egregious, inexcusable” emails with sexual innuendo to a student with a psychiatric disability in 2008 and 2009. In one email, according to the documents, he attached a photo of whipped cream and handcuffs and asked what she was doing for Valentine’s Day. Anderson was given a notice of intent to dismiss and subsequently resigned, according to the university.

Investigators concluded Dr. Blake Wentworth, an assistant professor in the Department of South and Southeast Asian Studies, made an “unwelcome, sexual advance” to a grad student in 2015, according to documents. Wentworth took the student’s hand, told her he was attracted to her, and asked her out to dinner, according to documents. Later, he came up behind her and cupped her ear.

Two graduate students, Erin Bennett and Kathleen Gutierrez, said last week that their complaints against Wentworth have been pending for more than a year, and that they have received little information about the process.

On March 24, Chancellor Dirks announced a series of plans to reform the handling of sexual harassment and sexual assault at Berkeley. “We are committed to ensuring that Berkeley is a welcoming, safe, respectful, and inclusive community for every one of our students, staff, faculty, and visitors,” Dirks said in the statement, emailed to all campus students and employees. Dirks announced that the Office for Prevention of Discrimination and Harassment (OPHD) will be given additional resources in order to reduce the time taken to investigate cases of sexual harassment and violence.  Associate vice chancellor for communications and public affairs Claire Holmes said the number of OPHD investigators would be doubled from three to six. In addition to allocating more funding to various prevention and care bodies on campus, the Confidential CARE Advocacy and Prevention Program will develop a sexual harassment and sexual violence prevention plan. The prevention initiatives could begin to be implemented as early as this summer. Dirks will also periodically submit written reports to Napolitano’s office on the campus’s progress in combating sexual assault and harassment, according to the Los Angeles Times. He also began meeting with her on a monthly basis as of April 1.

Three days later the chancellor announced that he had named history professor and executive dean of the College of Letters and Science Carla Hesse as interim leader of the campus’s efforts to improve its handling of sexual harassment and assault cases.  Hesse, he said, will coordinate the administration’s improvements on its processes tackling sexual harassment and assault claims.  Hesse will also create and train a campus peer review panel in conjunction with current campus offices that investigate claims and recommend disciplinary processes. In addition, Hesse will establish protocols tracking and analyzing trends in the number and nature of reports and decisions.

On March 28, a group of six feminist faculty members issued the following statement, which has since garnered almost 150 signatures:

As feminist faculty at UC Berkeley, we are gravely disturbed by the failures of our Administration to address sexual harassment as a fundamental violation of civil rights.  This year’s gross mishandling of the Marcy, Fleming and Choudhry cases reveals an administration that neither treats sexual harassment as serious nor recognizes its damage to its victims.  These failures make a mockery of the Administration’s continuous verbal promotion of the values of diversity, equity, inclusion and civility; the Administration appears far more concerned with risk management and with the careers and reputations of the prominent.

Sexual harassment is a violation of equal rights prohibited by a 1976 U.S. Supreme Court interpretation of the 1964 Civil Rights Act.  More than merely unpleasant or offensive behavior, and in a very different legal and political category from sexual assault, sexual harassment violates the right, at work or school, to avoid barriers or burdens on the basis of one’s sex or gender. Instead of respecting this principle of equality, the current administration has gone out of its way to shield those who have engaged in repeated acts of sexual harassment, and has sacrificed the entitlement of all staff, faculty and students to a harassment-free environment.

These high profile cases have produced a general crisis of confidence in the Administration. They also identify a long-standing and seemingly worsening problem at UC Berkeley, which is that reports of harassment are difficult to lodge and are often met with lethargic, arbitrary or feeble responses. While emphasis is placed on employee compliance with online education in identifying harassment, the actual system for reporting and resolving it is discouraging and ineffective for those who would bring complaints.  Consequently, many well-known repeat offenders have not been reported or, when reported, have not been stopped, a situation that has created a climate of frustration, anger and cynicism for those experiencing and witnessing harassment. Due process is essential for those charged with sexual harassment, but so too are clear, accessible and non-intimidating procedures for those who would make the charge and expect just results. The solution is not another education campaign or public statement of administrative resolve but a functional system for reporting harassment and removing harassers from positions of power over their victims.

There can be little doubt that the concerns voiced by these faculty members are both genuine and pressing.  Sexual harassment, like sexual violence, is a crime and needs to be treated seriously.  But at the same time, as the AAUP has recently argued at great length in its draft report on “The History, Uses, and Abuses of Title IX,” speech is not necessarily harassment, nor is disrespectful or uncivil behavior.  Yet that lesson may not yet have resonated with the Berkeley administration.  Readers of this blog may recall how in the fall of 2014, as the Berkeley campus was preparing to celebrate the 50th anniversary of the Free Speech Movement (FSM), Chancellor Dirks issued a statement, which claimed that “civility” and free speech are “two sides of the same coin.” That statement was roundly condemned by the Council of UC Faculty Associations and by veterans of the FSM, who reminded the chancellor that “It is precisely the right to speech on subjects that are divisive, controversial, and capable of arousing strong feelings that we fought for in 1964.”

Now, however, in a controversial op-ed piece in the Daily Californian, Hesse once more evoked the memory of the FSM and the need for “respect,” declaring that,

Incidents of sexual harassment and sexual assault are not unique to the UC Berkeley campus or to college and university campuses. But there is something deeper about the difficulty in dealing with this problem at UC Berkeley than might be found elsewhere, and it is high time we faced up to this.

We have a very easy time talking about freedom on this campus. It is a personal and public value — it might even be the only one — that is shared across our entire political and social spectrum. It is our moral bedrock and we are rightly proud of our reputation for the freedom of speech enjoyed by our students and the academic freedom cherished by our faculty. Freedom and UC Berkeley are almost synonyms.

But if we are to change the culture that too often tolerates or simply turns a blind eye away from abusive and disrespectful behavior, we need to find a way to draw a bright line between freedom and impunity.

Let’s be honest. Freedom is great, but we have a very hard time talking about any other public values at UC Berkeley — like respect. But if we are going to succeed in producing a campus environment in which every one of our members can enjoy the personal safety and social dignity that are preconditions for freedom, we are going to have to learn how to embrace the virtue of respect for those who are different and of those with whom we disagree.

Without respect, the Free Speech Movement becomes the Filthy Speech Movement. Free love becomes harassment and even assault. UC Berkeley needs to find a way to stand up more firmly and more forcefully for the virtue of putting limits on our own behavior so that the opportunities that freedom affords are a privilege of every member of our community, and not just those of the most privileged members of our community.

There is so much wrong with this that one hardly knows where to begin.  Sexual assault and sexual harassment are not just matters of “filthy speech,” “free love,” or disrespectful words or behavior.  The problem is not that respect or civility are lacking; structures and practices that condone abuse are what’s really at issue.  Hesse and other campus leaders should be addressing these and not urging everyone to respect each other, however nice that would be.  Speech and conduct are not the same thing, hence it is dangerous to conflate behavior that is “abusive” with that which is “disrespectful,” as Hesse does. Similarly, Hesse’s treatment of “freedom” as if it were a “privilege” is deeply troubling.

And then there is this:

I grew up here, and as a Berkeley High School student in the early 1970s, I used to spend evenings studying at a cafe on Hearst Street, right below Euclid: the Cafe Espresso (fondly called “the Depresso” by its denizens). One evening, a slightly deranged middle-aged man came into the cafe and meandered from table to table, disrupting conversations, chess games and people buried in their books and pocket calculators. The cafe owner, taking in the scene, finally came out from behind the counter and said to the gentleman: “This is Berkeley. It is perfectly OK to be crazy. But it is not OK to be anti-social. I am afraid I am going to have to ask you to leave.”

Freedom: “yes”; lack of respect for others: “no.”

There is much we can, and will do in the coming months to improve our processes and procedures for handling individual cases of sexual harassment and assault, but the real change will happen when each of us takes personal ownership of our campus honor code: “As a member of the Berkeley community, I act with honesty, integrity and respect for others.” It is time to recover our moral equilibrium.

Maybe it is Hesse who needs to recover her moral equilibrium.  For what is one to make of this tale of a “slightly deranged” Berkeleyan?  Does Hesse have no compassion for the disabled, for the mentally and emotionally disturbed?  Does she really wish to conflate this sort of experience with sexual harassment?  Of course It’s not just members of the Berkeley community who should strive to “act with honesty, integrity, and respect for others,” but are such feel-good sentiments really the principal message that must be conveyed about sexual harassment?  Is this scandal simply a product of the failure of the campus community to live up to its code?  Shouldn’t it be treated more as a product of entrenched sexism and unequal power and privilege?  As the faculty statement of March 28 so correctly concluded, “The solution is not another education campaign or public statement of administrative resolve but a functional system for reporting harassment and removing harassers from positions of power over their victims.”

As Associate Professor of South and Southeast Asia Studies Penny Edwards, a signatory to the March 28 statement, put it in a Daily Californian op-ed,

our leadership has responded to the growing furor over its mishandling of sexual harassment cases with a veritable circus, ranging from a top-down architecture of managed protest (“teach-ins” designed from on high and scheduled a semester in advance) to more committees. Pledges from on high to become a national leader in the prevention of sexual harassment on college campuses appear to be driven more by damage control and concerns to protect our market value than by the core values of this university. . . .  Creating a genuinely inclusive and diverse environment requires more than ticking off Title IX boxes. It requires the reform of campus structures to incorporate staff, faculty and students as a single campus community who are all equal before a universal standard of acceptable behavior.

But what would such a universal standard entail?  Clearly to date all offenders and all victims have not been treated comparably.  On April 9, the San Jose Mercury-News published a piece by reporter Katy Murphy (whose work on this story, by the way, has been terrific) arguing that the cases uncovered by the paper revealed a “double standard: While university staffers were routinely fired or forced to resign, tenured faculty members who committed similar transgressions received lighter sanctions and were allowed to keep their jobs.” 

“The faculty are very much untouchable,” Jenna Kingkade, a UC Berkeley law student and president of the Graduate Assembly told Murphy. “It’s a function of the hierarchy on this campus.”

Back in October, after initially defending the agreement with Marcy as a “strong action” by the university, Chancellor Dirks acknowledged it was done to avoid a formal conduct proceeding, which he described as “lengthy and uncertain,” with — as should be the case — a higher standard of proof than is used in the campus harassment investigations. “We recognize and share the frustration that many have expressed,” Dirks wrote in a message to the campus, pledging to help “reform the university’s disciplinary processes, criteria and standards so that in the future we have different and better options for discipline of faculty.”

At that time President Napolitano convened a panel charged with recommending reforms for the investigation and discipline of faculty accused of sexual misconduct.  But in a letter released just today Napolitano said the committee’s recommendations, contained in a 45-page report, did not go far enough.  She said the committee made “several important recommendations,” including changes to make it easier to place a faculty member who is under investigation on involuntary leave. But, she said, the committee needs to come back in three months with recommendations for a clear timeline — no longer than five months for the investigation and discipline of a professor — among other changes that will require careful consideration. (The committee learned of 141 sexual misconduct allegations made against faculty at eight campuses between 2012 and 2015; of those, just 34 were investigated by Title IX offices and 11 were substantiated. The other 107 were either unsubstantiated or resolved in an early resolution process without a formal investigation.)

“Given the seriousness of these cases and the shortcomings that have been identified with existing processes and policies, however, this work is crucial,” Napolitano wrote.

Napolitano says she wants recommendations on how UC can combine two investigations currently done for faculty members accused of sexual misconduct into one, and establish a review committee on each campus to make final decisions on disciplinary settlements; establish a peer review committee on each campus to recommend disciplinary sanctions and to have the final word on settlements reached by the faculty member and the administration; and reconsider a rule that requires charges to be brought against a faculty member within three years of receiving a complaint — at least in cases where a department head or other official fails to report the conduct to the campus anti-discrimination office.  Napolitano said she would require the campus office that receives sexual harassment complaints to inform the chancellor of any complaint involving a faculty member. She will also require academic affairs offices to indefinitely keep records of faculty members accused of sexual misconduct who were disciplined or who reached a settlement on such a case.

It is unclear what some of this might mean.  I certainly hope that both the committee and President Napolitano take heed of the lessons to be learned from the case of Teresa Buchanan at Louisiana State University.  Buchanan was the subject of a secret sexual harassment investigation, which concluded that she had violated the school’s harassment policy by using allegedly inappropriate language.  Then, when the administration moved to discipline her, the faculty hearing body’s verdict was effectively foreordained — they had to acknowledge that she had technically violated the harassment policy — but its recommendation for mild sanction was ignored and Buchanan was fired, a move that triggered yet another faculty investigation by the Academic Senate, which condemned the dismissal in an overwhelming vote censuring the administration.  Buchanan has now filed suit against the university, with the support of the AAUP Foundation and others. The point is that UC should avoid a situation in which administrative investigations of sexual misconduct essentially render moot the appropriate and adjudicative faculty disciplinary process.

Part of the problem, in the view of some, is that faculty are too firmly protected by tenure.  Shortly after the Choudhry case became public I was speaking with a family friend who is a graduate of Berkeley’s law school and who became active in the alumni effort to hold the former dean accountable.  She was frustrated that while Choudhry had been dismissed from his administrative position, he was still a member of the faculty and receiving full salary, which she blamed on tenure.  When I pointed out that tenure is not a lifetime guarantee of employment, and that the university could move to dismiss him (Berkeley does have a dismissal process that, I believe, is consistent with AAUP standards), she responded that she knew about that but had been told that “it’s just not done.”

Indeed, according the the Mercury-News, for all faculty misconduct cases resolved in the past five years at Berkeley, the Academic Senate’s Privilege and Tenure Committee has held just one hearing — and not for a sexual misconduct case.  To be sure, undoubtedly in some cases — the Marcy case, for one — the faculty member chose quietly to resign or retire.  But the fact that the process is so rarely employed suggests a potential problem.  If tenure is seen as something that can never be revoked, as a lifetime privilege, and if dismissal procedures are so difficult to implement as to be dysfunctional, then tenure’s critical role in assuring the protections of academic freedom and guaranteeing essential economic security to faculty members will be lost.

Cory Hernandez, who coordinates sexual violence and harassment policy for UC Berkeley’s Graduate Assembly, said, “It might be we need a bright-line rule: that if you violate our sexual misconduct policy, you are automatically stripped of tenure.”  That’s going too far.  Dismissal should never be automatic; those accused of harassment or, for that matter, any form of misconduct must be guaranteed the due process protections appropriate to their status, especially at times of potential “moral panic.”  This was one of the primary arguments of the AAUP’s report on Title IX.  But as Anita Levy of AAUP’s Department of Academic Freedom, Tenure, and Governance told the Mercury-News, “I do hope that they begin to adjudicate these cases consistently, regardless of how elite or influential the academic involved.”

 

 

2 thoughts on “On the University of California, IV: Sexual Harassment, “Respect,” and Tenure at Berkeley

  1. Pingback: Berkeley Faculty Demands New Probe of Controversial Coach | ACADEME BLOG

  2. Pingback: Berkeley Chancellor Resigns | ACADEME BLOG

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