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Thursday, October 13, 2016

The University Of California’s Extraordinary Legal Battle With Ex-Berkeley Law School Dean

ChoudryFollowing up on my previous posts (links below): San Francisco Chronicle, UC’s Extraordinary Legal Battle With Ex-Berkeley Law School Dean:

A lawsuit filed against the University of California raises the extraordinary question of whether UC’s efforts to hold the former dean of one of the nation’s top-ranked law schools accountable for violating its sexual harassment policy are, in fact, illegal.

The claim comes from Sujit Choudhry, a tenured law professor who resigned as dean of the UC Berkeley School of Law on March 10, two days after his former assistant claimed in her own lawsuit that he hugged, kissed and touched her repeatedly against her wishes in 2014 and 2015 and that campus officials did nothing to stop it.

Campus investigators had already determined in July 2015 that Choudhry violated UC’s sexual harassment policy. As punishment, UC Berkeley officials temporarily reduced his pay by 10 percent — from $415,000 to $373,500 — and ordered him to apologize and seek counseling.

That punishment was too light, UC President Janet Napolitano decided in March when she learned of the case — the latest in a string of high-profile sexual harassment incidents at UC Berkeley. Anger had reached a boiling point among students, faculty and the public over what critics saw as the school’s long tolerance of offensive behavior. Similar cases had made news across the country, creating a public perception that campuses willing to strongly discipline sexual harassers were good institutions, while those that did too little were not.

Choudhry’s lawsuit, filed Sept. 15 in U.S. District Court in San Francisco, claims that Napolitano’s motivation for stepping up the discipline against him was partly to “try to improve the university’s image, as well as her own.” ...

Choudhry returned to campus this semester but was given no classes to teach. He is seeking an injunction to stop the Senate’s disciplinary proceedings, and unspecified monetary damages. He argues that the university is singling him out for a second round of discipline because of his “race, color and national origin.” Choudhry, 46, is a Canadian citizen of Indian descent.

The suit claims he is being treated more harshly than two other UC Berkeley employees who also were embroiled in sexual harassment scandals last year: Graham Fleming, a former vice chancellor who remains a tenured chemistry professor, and Geoffrey Marcy, an internationally known astronomy professor who quit under pressure last October. Both are white.

Some legal experts say Choudhry may well have a case.

“It smacks of double jeopardy,” said Bill Gould, a former chairman of the National Labor Relations Board who taught labor law for 42 years at Stanford University until 2014. He now chairs the California Agricultural Labor Relations Board. ... Choudhry’s argument that he is being punished twice “may well be the strong part of his case,” Gould said.

In court papers filed Thursday, UC lawyers say the second punishment is allowed because university policies “expressly allow disciplinary proceedings (against faculty) even after administrative actions have been taken” against the faculty member as a dean.

Even if Choudhry wins, his victory could prove hollow, said Stanford law Professor Deborah Rhode, who called the former dean’s effort “career suicidal.” “What is he thinking?” she asked. “Already his conduct is going to make him a pariah in many law school contexts — and this just fuels the flames.” ...

“Is the claim of racial discrimination valid? It may be. Absolutely we see a pattern where men of color are held to higher standards,” said Wendy Leo Moore, author of “Reproducing Racism: White Space, Elite Law Schools, and Racial Inequality.” The second, stronger punishment against Choudhry “looks arbitrary,” said Moore, an attorney who teaches law and race theory at Texas A&M University. Napolitano “didn’t go back to the white men.” ...

UC’s court papers say that Choudhry “utterly disregards the harm he inflicted” on his former assistant Sorrell, so the court should not halt disciplinary proceedings against him. “Preventing UC from disciplining Choudhry would potentially expose students, faculty and staff to a harassing and hostile environment,” the university says.

The next court hearing is set for Nov. 3.

Prior TaxProf Blog coverage:

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