Law Professors

Touches weren’t sexual, says Berkeley law prof facing second disciplinary process

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Sujit Choudhry, the former dean of the University of California at Berkeley School of Law who stepped down after a university finding that he repeatedly hugged his executive assistant, has filed a grievance (PDF) about a second disciplinary process, which he says could result in him losing tenure.

The first investigation, from Berkeley’s Office for the Prevention of Harassment and Discrimination, also found that Choudhry repeatedly kissed employee Tyann Sorrell on the cheek. The July 2015 finding stated that his behavior violated university policy and showed a lack of judgment. Discipline included a 10 percent salary reduction for one year, an apology to Sorrell and one-on-one coaching focused on keeping appropriate workplace standards.

Choudhry resigned as dean in March 2016 after a lawsuit Sorrell filed against him and the university, alleging that it mishandled her complaints. During that same time, Janet Napolitano, president of the University of California system, announced that a new committee that would review and approve all proposed sanctions for senior leaders who violated sexual assault and harassment policies, the Daily Californian reported.

According to the grievance Choudhry sent April 22 to the school’s privilege and tenure committee, administrators launched the second investigation against him with the goal of taking his tenure. His grievance argues that colleagues, not administrators, have the authority to determine whether he violated the university’s faculty code of conduct.

Choudhry does not deny that he touched and kissed Sorrell, says his lawyer William W. Taylor III, and “she wasn’t the only one” at work who received his affection. According to Taylor, Choudhry’s touching was similar to comforting your child with a kiss on the head.

“He’d been brought in to fix a huge budget problem and administer a very unruly situation. The administrative assistant felt the pressure as well, and these were gesture of support, to show sympathy for her,” Taylor told the ABA Journal.

Various people have asked whether it’s possible his client didn’t know that sort of behavior would be frowned on, Taylor says, adding that Choudhry spent much of his academic career at the University of Toronto Faculty of Law, and had limited experience as a law school dean.

“He had not—probably regrettably—been to business school, where you learn a little bit more about managing people,” says Taylor, a Zuckerman Spaeder partner.

Choudhry learned in the news that there would be another discipline process against him, according to the grievance, and Napolitano was quoted as saying she directed administrators to take further actions. He also alleges that Napolitano used the word “groping” to describe his conduct, which he says is defamatory, in an interview with the Sacramento Bee’s editorial board.

“You can’t redo discipline because you think it’s not severe enough,” Taylor says. “He acknowledges the touching and apologized for it. The thing that stands out is [no one] suggested that there was a sexual motivation.”

Had Choudhry known there would be another disciplinary process, his grievance states, he would have appealed the July 2015 finding against him.

The faculty code of conduct clearly differentiates between faculty discipline and administrative actions taken against faculty members who serve administrative roles, a Berkeley assistant vice chancellor told the ABA Journal.

“Policy expressly permits both types of action to be taken if conduct violates the faculty code. The administration’s steps have complied with university policy and reflect the seriousness of the conduct described in the investigative report issued by the Office for the Prevention of Harassment and Discrimination,” Dan Mogulof wrote in an email to the ABA Journal.

Choudhry’s grievance states that Claude Steele, Berkeley’s former executive vice chancellor and provost, assured him that the initial sanction would be the only punishment given. Choudhry offered Steele his resignation as dean, which Steele initially refused. According to the grievance, Steele told Choudhry he could “justify the sanction to the Berkeley Law community.” After a faculty meeting later that day, Steele called Choudhry and asked for his resignation as dean.

In May 2015—while Choudhry was still dean and his discipline proceedings with the university’s Office for the Prevention of Harassment and Discrimination were ongoing—Choudlry nominated Steele to the Berkeley Law faculty, and professors voted in favor of the nomination. Steele recently declined the nomination and resigned from the provost position, the Berkeley News reported. Steele will join Berkeley’s psychology faculty next year. Chancellor Nicholas Dirks in March told the Daily Californian that Steele did not give Choudhry lighter sanctions in exchange for a law school faculty appointment.

John D. Winer, Sorrell’s lawyer, told the ABA Journal that Steele had a significant conflict of interest.

“Steele was in gratitude to Choudhry for receiving the prestigious position, and in one respect Choudhry’s subordinate at that time. How could he possibly make a fair decision?” Winer asks. “It is also disturbing to learn from Choudhry’s letter that when we filed the lawsuit and Choudhry offered to step down Steele actually refused to accept his resignation. This makes it even clearer that Steele, because of his conflict, was acting to protect Choudhry rather than Tyann and the school community.”

Steele told the ABA Journal that Winer is making a significant issue out of something minor. The nomination was for a part-time position, he says, and the nomination was made by the chancellor, not Choudhry. Also, Steele says that he was not aware of the disciplinary proceeding finding until after the nomination was made.

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