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Tuesday, September 27, 2016

Is Berkeley Sacrificing Due Process to Appease an Angry Mob? The Sexual Harassment Case Against Sujit Choudhry

How much and what sort of process is due in university sexual harassment administrative proceedings? The question, once for me a relatively academic question, has become painfully personal after Sujit Choudhry, a personal friend and the former Dean of Berkeley, was accused by his former administrative assistant of sexually harassing her.

Five years ago, I criticized my friend Peter Berkowitz for insisting in a Wall Street Journal op-ed that criminal procedures – in particular, the “beyond-a-reasonable-doubt” (BARD) standard -- be imported wholesale into university hearings where accusations of sexual misconduct are being adjudicated. Without taking any position on the right standard of proof, I argued that one could not automatically assume that the BARD standard was appropriate for a university’s administrative hearing where the stakes are not personal liberty but rather suspension or expulsion. The justification for criminal trial procedures favoring the accused is that the social and moral costs of convicting one innocent person vastly outweighs the costs of letting a lot of guilty people go free (the exact ratio of false positives to false negatives being a conundrum in which 1L criminal law professors delight). The appropriate ratio of false negatives to false positives in the university setting is, to my mind, a closer call. Because the procedural norms for these university adjudications are both hotly contested and reasonably disputed, I urged that the U.S. Department of Education not prematurely centralize them with OCR guidance documents but instead allow universities to experiment with different procedures.

Peter has now trained his sights on one of those decentralized experiments – namely, University of California’s attempt to re-try an accusation of sexual harassment against former Berkeley Law Dean Sujit Choudhry for which Choudhry has already been charged, investigated, and punished. This time I have to agree with Peter as well as with Brian Leiter and Slate: This is a Dr. Frankenstein’s experiment gone horribly awry. As Choudhry’s complaint in federal court alleges, there is an egregious assault on procedural due process going on at U.C. Berkeley. After the jump, I will offer my reasons for believing that President Janet Napolitano, the President of the University of California, is abetting mob justice in urging a do-over.

After the jump, I will plunge into the details of the Choudhry case (this is my longest blog post ever, for which I apologize, claiming as an excuse my desire to be especially scrupulous about the facts in an especially sensitive case). I will argue that these facts suggest why due process requires some sort of collateral estoppel in university sexual harassment cases. I emphasize that, as Choudhry’s friend, I am not impartial here. For the purposes of my plea for due process, however, my partiality is not a bug but a feature. It is precisely because all of us, myself as well as Choudhry’s now-numerous detractors, cannot be coolly impartial in cases like this that scrupulous adherence to norms of procedural fairness is essential. Holding a second hearing simply because there was a public outcry against the result obtained in the first is the antithesis of such procedural fairness, which is why I believe that Berkeley should be ashamed of what they are apparently about to do.


1. First, the Facts: To appreciate the merits of Peter’s call for a Double Jeopardy limit on re-adjudication of Choudhry’s case, it is necessary to recount in tedious detail the events of Choudhry’s case to support the following position: On one plausible view of this record, the university imposed a fair and proportionate penalty on Choudhry in the first university proceeding based on a reasonable assessment that he inadvertently crossed a workplace line without any lecherous or predatory intention. This is not the only possible view of the record, but, as I shall suggest below, it was reached by officials acting in good-faith based on a reasonable view of the evidence. The purpose of a “do-over,” therefore, cannot be to correct some manifest injustice in the first proceeding.

Choudhry became Dean of Boalt Hall in the summer of 2014. Tyann Sorrel, the complainant and now plaintiff in a civil case against both the University and Choudhry, was Choudhry’s administrative assistant. According to the report from Berkeley's Office for Prevention of Discrimination & Harassment ("OPHD"), Sorrell accused Choudhry of hugging her, kissing her on the cheek, touching her on her shoulder and arms, and, on one occasion, taking “the Complainant’s hands and put them on his waist, rubbed her hands and wrists that were on his waist, and kissed her on the cheek.” Sorrell stated that these acts started in September of 2014 but that they “escalated in February of [sic] March 2015 to multiple times, daily.”

Sounds creepy, right? But, as I will discuss more fully below, not only does Choudhry dispute this account of the facts, but, contrary to most news accounts, the university officials for resolving the dispute made no finding averse to Choudhry’s version, which has some support in the sketchy record available to the public.

What is Choudhry’s side of the story? In a complaint brief filed in federal district court, he states that he would occasionally kiss Sorrell and other female members of his staff on the cheek as a friendly greeting “once or twice per week.” He asserts that his occasional hugs and pecks on the cheek were intended merely to promote office camaraderie among an overworked and – he thought – close-knit staff, that they never were motivated by any lascivious purpose, and that, until she filed her complaint with the university, Sorrell had never suggested that these greetings were unwelcome.

It is difficult to prove a negative, but, to the extent that any circumstantial evidence exists, it is consistent with Choudhry’s account. According to the OPHD report, Although Sorrell believed that others “observed the Respondent’s behavior” such that “she felt that her professional reputation in the office was compromised,” neither of the two witnesses interviewed by OPHD observed anything other than an occasional “familial-like” kiss as Choudhry entered or left the office. Both witnesses, who were women, had been hugged and kissed by Choudhry on occasion and were not offended by the experience. Had Choudhry really been hugging and kissing his assistant multiple times a day in a way to compromise that assistant’s reputation, one would think that someone else in a busy dean’s office would have noticed.

Sorrell had spoken to the two witnesses about her objections to Choudhry’s behavior a few days before she sent an email to Choudhry on March 19th, 2015, complaining about his behavior. The same email was sent to the OPHD on the same day. Choudhry, in other words, was never told that his actions were unwelcome before she accused him of sexual abuse. In any case, he stopped immediately, mortified by Sorrell reaction.

Should we believe Choudhry when he states that his motives were not lecherous or seductive but merely friendly? Yes, because, surprisingly, this part of his account is undisputed. In her complaint to OPHD, Sorrell never alleged that Choudhry had any lecherous or seductive intentions. Indeed, in an open letter published in the Daily Californian, a student-run newspaper, Choudhry quotes from the email sent to him by Sorrell immediately before Sorrell filed her complaint with OPHD in which Sorrell states that she believes that Choudhry had “pure intentions”: “I know you don’t mean anything by it,” Choudhry quotes Sorrell as writing to him, “other than, perhaps, a warm and friendly greeting.”

So why all of the hugging and kissing? One possibility is that Choudhry was trying to cultivate a friendly (“familial” as a witness put it) environment in an otherwise overstressed workplace. Most of Sorrell’s email complaining about Choudhry’s behavior focuses not on his hugging and kissing but rather his yelling. Choudhry apparently swore a lot, mostly about faculty, university administrators, and alumni who were not present at the time of the yelling. Sorrell found this behavior intimidating and unprofessional. According to Choudhry’s own brief seeking a preliminary injunction on his exclusion from his office, Sorrell was also experiencing extraordinary stress from the workload in Choudhry’s office: Falling behind, she actually tried to quit. Choudhry responded by hiring more staff and generally providing reassurance that she could cope with the job. The occasional squeezes on the arm, kisses on the forehead or cheek, and hugs were part of this effort, according to Choudhry, to comfort a staffer who apparently felt beleaguered by the job. That these gestures backfired might speak more to Choudhry’s cluelessness not his lewd intentions.

This interpretation of Choudhry’s behavior seems a bit more plausible to me as a result of my personal knowledge of Choudhry’s character and experience.

First, Sorrell’s accusations are wildly inconsistent with my experience of spending a lot of time with Choudhry. After first hearing about Choudhry’s fate in the national press, I was dumbfounded, because the allegation that Choudhry would ever make unwanted sexual advances to anyone seemed utterly alien to my conception of the person I thought I knew. Accordingly, I tried to check my intuitions against those of other people, inquiring of a dozen -odd colleagues and NYU staff if they ever heard of any rumor of a hint of sexual impropriety by Choudhry while he was at NYU. Their universal reaction was the same as mine – not merely that no such allegations had ever been made against Choudhry but that, given his general demeanor and personality, they never would have imagined that he would be capable of such conduct. (For the record, Choudhry has never been accused of any sexual impropriety by anyone aside from Sorrell in decades of teaching at three different institutions).

Second, knowing Choudhry’s background, I find it easy to explain Choudhry’s kissing and hugging as a product of his adopting “continental” greeting norms, in which it is common to greet friends of friends and others not part of one’s immediate families with a mix of cheek-kissing and hugs. Choudhry is a specialist in comparative constitutional law (He ran a Center for Constitutional Transitions at NYU). Consequently, at least when he was my colleague at NYU, he spent a vast amount of his time at conferences mostly attended by continental Europeans or by scholars educated in a continental culture. As an attendee at one such (on federalism) in Zaragoza Spain, I can personally attest that men routinely greeted women who were friends of friends with two quick pecks and a shoulder squeeze.

So did Choudhry import European norms into a California workplace, clueless that Americans tend to bristle at what Europeans regard as normal? My suspicion that such a misunderstanding could have occurred is reinforced by Choudhry’s background as a friend and colleague of John Sexton, our former NYU President. Sexton famously is a serial hugger whose bear-like embraces are his trademark way of breaking down boundaries of reserve to establish rapport. In addition to adopting a “continental” style, Choudhry might have been attempting to replicate Sexton’s (admittedly controversial) managerial style at Boalt. Like Sexton, Choudhry is frenetically, almost crazily active in his professional life, dashing off to conference projects from Madrid to Addis Abba while simultaneously writing piles of article. I could see how he might overwhelm colleagues with his hyper-active work ethic, sometimes breathlessly laced with epithets as he impatiently demands as much from his colleagues and staff as he does from himself. And I could easily see him sensing the tension his behavior generated in Sorrell and trying to compensate for his brusqueness with a ham-handed gesture of camaraderie.

I emphasize that the interpretation of the meager written record offered above is merely a possible view of a thin and cold written file available to the public. Moreover, I am biased by ties of friendship to Choudhry, and I did not interview Sorrell, so I am in no position to assess her credibility.

The university officials who ultimately imposed the first sanctions on Choudhry, however, were in a position to assess the entire record and had no apparent reason to take Choudhry’s side. Yet they seemed to have interpreted the facts as I do – as a colossal misunderstanding rather than a predatory act. Claude Steele, the University’s Provost and Executive Vice Chancellor, wrote to Choudhry that, as a sanction for his kissing and hugging, he proposed to dock Choudhry’s pay by 10% in 2015, instruct Choudhry to write a letter of apology to Sorrell, and told Choudhry to undergo counseling. Steele’s disposition was reviewed by a bevy of other university officials who had the option to increase the sanction – for instance, by dismissing Choudhry as dean. That no one did so suggests that every official who looked at the file found that Choudhry had been emotionally clueless rather than sexually predatory.

This suggestion of a misunderstanding rather than sexual predation is made explicit in Steele’s letter to Choudhry, which Choudhry quotes in his brief: “You have a very promising career as Berkeley’s Law School Dean with your innovative ideas, high energy, and enthusiastic citizenship,” Steele writes, “and I trust that you will grow into the kind of leader that we both know you can be.” As the official university “settlement” of the dispute, Steele’s letter strongly implies that he found that Choudhry was devoid of any sexually predatory intention and made an honest mistake about social norms rather than a bid for sexual favors.

Why, then, do news accounts routinely and incorrectly assume that the university adopted Sorrell’s version of the facts? Such accounts rely exclusively on the OPHD report written by one Andrea LaCampagne, a OHPD “complaint resolution officer.” LaCampagne accepted Sorrell’s version of the facts, finding that Choudhry was guilty of sexual harassment. Two aspects of this report, however, seem so odd that, for me at least, they cast suspicion on the entire document's impartiality. First, although the report expressly refrained from finding that Choudhry had any “sexual intent,” LaCampagne nevertheless found that Choudhry’s acts were “objectively sexual in nature” because Choudhry did not hug and kiss male colleagues and staff members to show gratitude or friendliness, preferring to slap them on the back or shoulder. Second, the report resolved the factual dispute between Choudhry and Sorrell about the frequency of Choudhry’s kissing and hugging by crediting Sorrell’s account on the ground that “[t]he Complainant has no motive to exaggerate” and had given the same account to one of the witnesses shortly before she sent her complaint to OPHD.

The first of these statements appears to take the position that the reasonability of the defendant’s beliefs about “welcomeness” is irrelevant to liability. Such a view, however, makes sexual harassment into a strict liability tort in which a defendant can be held liable for gender-based distinctions that are ordinarily regarded as consistent with workplace norms. As I noted above, gender-based distinctions in kissing and hugging as a social greeting are normal behavior in much of continental Europe. I am neither “continental” in my norms nor much of a hugger, but when couples come to visit my house on social occasions, I have been known to hug the woman and shake hands with the man. It had not occurred to me that this sort of traditional gender-based distinction rendered my behavior “sexual” in nature, objectively or otherwise. Of course, if the recipient complained about a hug, I would immediately stop hugging – but Sorrell never communicated to Choudhry that his greetings were unwelcome. Should a complainant’s subjective feeling of unwelcomeness, never communicated to a defendant, be sufficient to create liability, even when that defendant’s actions otherwise fall within objectively reasonable norms of workplace behavior? Students protesting Choudhry's presence on campus display banners declaring "impact, not intent," but one can, I think, pardon Berkeley for not uncritically embracing this slogan. A pure impact standard is not (yet) established as the law, and it has the arguably absurd consequence of allowing the complainant's subjective and unexpressed objections create liability even if no reasonable person would regard the unwelcome conduct, absent some actual complaint from the complainant, as harassing.

Second, the claim that Sorrell “has no motive to exaggerate” seems to announce a presumption of guilt that sits uneasily with the normal burden of proof. Sorrell had no more and no less of a motive to exaggerate than Choudhry had to minimize the gravity of his conduct: Both parties presumably want their position to prevail. Why, then, mention Sorrell’s impartiality as a reason to rule against Choudhry except to imply that Choudhry did have a motive to lie simply because he had been accused?

There are, in short, reasons for university officials to be skeptical about LaCampagne’s report as the final word on Choudhry’s culpability. One could reasonably infer that Steele and others discounted LaCampagne’s adoption of a “strict liability” standard as well as her use of a skewed evidentiary standard and imposed sanctions that reflected their independent assessment of Choudhry’s actual culpability. Choudhry accepted these sanctions without ever conceding his position that his intentions were entirely non-sexual and the effects of his acts, entirely inadvertent. In waiving his various rights to challenge Sorrell’s account, he plainly relied on the university to stand by its decision.

Sorrell, however, was not pleased by this outcome: She filed a civil lawsuit in state court against the university and Choudhry, alleging that the university covered up a case of sexual harassment in violation of state law. A firestorm of anger at Choudhry erupted when Sorrell’s allegations went public, with alumni and students inaccurately assuming that the university investigation had found that Choudhry had acted with lecherous intentions. Town meetings were held, calling for Choudhry to be banned from campus as a dangerous sexual predator around whom students felt unsafe. Members of the faculty compared Choudhry’s case to that of Catholic priests who molested children. In short, hysteria prevailed – without anyone’s noticing that the OPHD report actually never found that Choudhry had engaged in any “sexual” behavior as that quoted term is normally understood and that branding Choudhry as a dangerous predator threatening to students on the basis of this report was patently ridiculous.

With the courage that we have gradually come to expect from university administrators, support for the provost’s decision melted away. President Napolitano, under fire for the university’s handling of entirely different cases against other faculty, falsely accused Choudhry of “groping” and called for his being banned from campus. Students demonstrated against Choudhry’s presence on campus, chanting that he had to be fired, and the faculty Senate gave an award to Sorrell for unmasking a predator. The dean of students for the university has been forwarding emails organizing demonstrations (styled “town hall meetings”) to warn of Choudhry’s alleged predatory propensities.

Now, in the wake of Sorrel’s March 2016 civil lawsuit and the ensuing public outcry, the University wants to re-open the case by launching a second administrative investigation to strip Choudhry of his tenure and fire him.

2. Was the sanction imposed after the first investigation insufficiently severe? I do not know. Neither do you: it is excruciatingly difficult to answer this question in an impartial way. One’s view will inevitably be colored by one’s priors.

Knowing Choudhry as well as I do, I am inclined to think that he was trying to build espirit de corps as a new dean by creating (in the words of one of his staff) a “familial-like” atmosphere of informality and friendliness in an office working long hours at a breakneck pace. On this view, his behavior was neither predatory nor “sexual,” and it barely qualifies as a hostile work environment. Claude Steele, the University’s former provost and Executive Vice Chancellor and Provost, could very reasonably have imposed a fine and counseling precisely because the underlying conduct presented a borderline case of harassment.

But, of course, I am not impartial: I am Choudhry’s friend and former colleague. You, gentle reader, should discount my testimony by my friendship.

Likewise, Choudhry’s many critics are not impartial. They are using Choudhry’s case to make a larger point about the evil of sexual harassment and the importance of harshly punishing its perpetrators. None of Choudhry’s critics are focused on the details of the OHPD report – indeed, they essentially ignore its findings -- nor are they privy to the rest of the administrative record on which the University’s initial decision was made. For those who do not know him, Choudhry’s actions are easy to assimilate to an all too familiar pattern of predatory behavior by male bosses against female subordinates. One of Boalt’s former deans undressed and fondled a law student while she was passed out drunk. When hearing about another dean’s kissing and hugging staff, therefore, the general public will automatically impute a predatory, sexual purpose, even where none was found by the OPHD. Activists will dust off their poster board signs and start to march and chant. The Faculty Senate, its members either cowed or elated, voted an award to Tyann Sorrell for bringing sexual harassment to the attention of the community.

In short, we all tend to view actions through the narrative context that we impose on events, based on our personal experience and general ideology. The result is that our post hoc assessments of the university’s initial decision tend to be untrustworthy. As Choudhry’s friend, I see the decision as correct; as a community suspicious of the university’s stance towards sexual harassment, Choudhry’s detractors disagree.

I would characterize this disagreement as reasonable: it is plausible to believe that the university erred, just as it is plausible to believe that they chose the right sanction. Maybe they should have credited Sorrell’s statements that Choudhry kissed her multiple times per day, put the worst spin on such actions, and discredited Sorrell’s statement to Choudhry that his intentions were pure. If they believed that Choudhry really was pressuring Sorrel for sexual gratification, then, of course, they should have fired Choudhry from his dean’s position and even have revoked his tenure.

The university, however, was not required by this record to reach such a conclusion: The undisputed facts do not, as a matter of res ipsa loquitur, require any finding of intentional sexual misconduct. The only undisputed facts are that Choudhry kissed and hugged a staff member in ways that some witnesses apparently found to be within the outer bounds of appropriate workplace conduct but that the complainant found unwelcome, a discomfort that she never communicated to Choudhry before she accused him of sexual misconduct before the university. In light of Sorrell’s own statement to Choudhry that she regarded his intentions as “pure,” the university could reasonably – albeit perhaps mistakenly -- decide that such an innocent blunder merited a carefully calibrated sanction reflecting Choudhry’s low culpability.

3. What does due process require? It is precisely because we tend to view facts in light of our personal commitments unrelated to those facts that decisions about individuals should be made before those commitments are engaged. Individualized justice requires that that factual particularity of Choudhry’s actions should determine his fate, not personal friendships like mine, and not the general Weltanschauung about campus sexual assault. President Napolitano obviously has a need to assuage alumni and students about campus sexual assault in general; making an example of Choudhry suits this purpose. But those essentially political needs are antithetical to individualized justice. What exactly Choudhry said and did, and when, how, where, and why he said and did it, should determine whether his acts should constitute sexual harassment and how severe his penalty ought to be. He should not be served up to satisfy students’ and alumni appetite for a general condemnation of sexual harassment. That sort of appeasement is mob justice.

The critical question, therefore, ought to be whether there is a reason for this second proceeding beyond appeasing the mob. As I noted above, I can find nothing whatsoever in the public record suggesting any procedural flaw in the first proceeding. No one anywhere alleges that the investigation was not thorough or did not uncover all of the relevant facts; there is neither any new evidence nor any new complainants. No one alleges that the University did not follow its established procedures properly, and no one alleges that those procedures were somehow inferior to the procedure now being deployed. Although the University Faculty Senate complained that the punishment meted out to Choudhry was too lenient, there is not a single word in any of the news accounts of their meetings that they weighed the evidence that formed the basis of Steele’s decision. Indeed, they apparently did not weigh any evidence at all: They inveighed against sexual harassment in general, essentially transforming Choudhry’s case into a stick with which to beat the incumbent administration and make a larger point about the importance of taking sexual harassment seriously.

In sum, this second process, baked by the glare of national publicity, is custom-designed to provide the outcome demanded by public pressure rather than assess a factual record impartially.

Does this sort of “do-over” fall outside the limits of procedural due process? I began this post by emphasizing the importance of decentralization and experimentation when procedural norms are reasonably contested. I am a fan of federalism even when important rights are stake, as long as they is a plausible argument that the challenged subnational procedure falls within a fairly capacious definition of “reasonable.”

Even against this high bar, however, I believe that the university’s conduct in this case rises to the level of a deprivation of due process. Consider three reasons that together suggest such a deprivation.

First, there has been no credible allegation that the first process was procedurally flawed. The university followed its standard investigatory rules that, if anything, were biased in favor of complainants to the extent that the accused lacked some of the tools normally available in an administrative hearing such as the opportunity to subpoena and examine cross-examine witnesses.

Second, the context of this second proceeding strongly suggests that its reason is solely to appease constituents (students, faculty, alumni), not correct an error. As a result, it is impossible to believe that the conclusion will not a foreordained result of ill-informed and emotional public pressure rather than examination of the record. The Promotions & Tenure Committee is a subunit of the Faculty Senate, a body that has openly sided with Sorrell, apparently based on the untrue assumption that the internal investigation found that Choudhry had some sort of illicit sexual intention in his hugging and kissing. It seems far-fetched to believe that Choudhry can expect a fair hearing from such a decision-maker when it is under intense pressure from students to fire him.

Third, Choudhry relied to his detriment on the first proceeding in accepting the sanctions that the university imposed. His acceptance has been (mistakenly) construed in the press and among the public to mean that he has conceded that he engaged in improperly sexual behavior. His reputation has been ruined and his job, imperiled by this perception. Had he vigorously contested Sorrell’s narrative from the onset, his own side of the story would have had a fighting chance. Now he is deluged by a flood of anger that he has no hope of stemming.

In short, Choudhry relied on a proceeding represented to him as a final disposition of his case in which he waived procedural rights that could have saved his reputation from public fury, only to face a second proceeding that is being held for the sole purpose of assuaging that fury before a body that has publicly taken the side of his accuser. It is as if a defendant in a criminal case entered a plea bargain, pleading nolo in return for a sanction, only to have that bargain withdrawn when the public reacted angrily to the deal and have that very bargain used to whip up public anger against him.

Of course, as I acknowledged in the second paragraph of this post, a university administrative hearing is not a criminal trial. I reiterate that I would not import every aspect of due process in a criminal proceeding to the university context. But I also would not allow a public university to adopt a procedure for which no defense can be made beyond the political need to appease the public’s disagreement with an otherwise reasonable prior settlement. I agree with Brian Leiter and Slate, therefore, that Choudhry has a powerful procedural due process claim against this “do-over.”

I admit that, behind this general stance on an impersonal question of law, lies a more personal motive. A friend whom I believe to be a decent person may have been falsely maligned as a sexual predator. I might be wrong in my judgment about his character and my resulting inferences about his likely actions. But, no less than his accuser, he deserves to be judged by an impartial tribunal, not be by university officials intent on saving their own reputation by throwing him to the mob.

Maybe he will finally get that tribunal in federal court.

Posted by Rick Hills on September 27, 2016 at 11:35 PM | Permalink

Comments

Quite a post. I think it a fair take on the events at Berkeley, and if there is good reason to tip the balance the other way on the issues of credibility or severity, I'm sure others will let us know. You've certainly been more than careful in acknowledging your understandable biases here.

I recall your post from five years ago. At the time, I thought it rested on an unspoken but rather optimistic view regarding the commitment to fairness university administrators are likely to display in cases of alleged harassment and assault. The past few years have been illuminating on this point, in numerous cases across the country. While you could make the same structural arguments today (decentralization: good; consequences of getting it wrong: not so bad, and hey - nothing's perfect!), I have the feeling you wouldn't. Am I right about that?

Posted by: Adam | Sep 28, 2016 10:48:21 AM

Putting the important questions of sexual harassment and due process to the side, I do not think kissing one's female colleagues on the forehead is appropriate workplace behavior. It's patronizing and gendered.

Posted by: anonymous | Sep 28, 2016 1:29:22 PM

It's concerning that your application of due process rights appears to dependson whether you personally believe that person "deserves to be judged by an impartial tribunal." One wishes that, instead of explaining that Choudry is an exception to the experimental process you endorsed in 2005, this argument recognized that everyone -- students as well as law school deans -- deserved a fair hearing in front of an impartial tribunal.

Posted by: Owen | Sep 28, 2016 5:15:32 PM

That is a long post and I may have missed something but the motion recently filed by Choudhry argues that it is impermissible for the University to institute a second disciplinary process, and it is not at all necessary for you (or them) to justify his actions as a way to discuss his recent filing. And without seeing the University's response, it seems a bit premature to conclude that there has been a deprivation of due process. You also are wrong on sexual harassment law, which does not require sexual intent or desire as part of a claim, and never has. While there might be some legitimate contract or due process issues, his behavior was unquestionably inappropriate, as any employment lawyer would tell you, and his subsequent behavior leads me to believe he was not fit to be a Dean.

Posted by: MLS | Sep 28, 2016 5:44:14 PM

I have never met Professor Choudhry and I have no opinion on the merit of the allegations against him. This post is exceedingly thoughtful and fair-minded, but it nevertheless leaves me unsatisfied on two counts:

First, the focus on Professor Choudhy's perhaps benign intentions seems misplaced. Sexual harassment law is judged by an objective test, asking whether the harassment was sufficiently severe or pervasive to amount to an alteration in the terms and conditions of employment, and whether the harassment was on the basis of sex. It may be that the alleged harassment here was not sufficiently severe or pervasive to justify discipline of Professor Choudhry, but it seems quite unlikely that Professor Choudhry would have treated a male employee in the same way, and that is the only motive that is relevant under harassment law.

Second, the claim of "double jeopardy" seems to me to be misplaced as well. The Double Jeopardy Clause applies only to criminal punishments, and no one contends that Professor Choudhry has ever been placed in jeopardy of criminal punishment even once. The argument instead seems to be based on some sort of loose due process analogy to double jeopardy (although a textualist might point out that if the Due Process Clause of its own force prohibited double jeopardy in both civil and criminal matters there would be little need for a separate Double Jeopardy Clause in the Fifth Amendment). It is unclear to me, however, why Professor Choudhry's ability to assert whatever contractual rights he has under state law does not supply all the process that is due. If Professor Choudhry received some sort of binding commitment in the original settlement agreement that his acceptance of that agreement precluded reopening of disciplinary proceedings against him, then the law of contracts would supply Professor Choudhry with complete protection -- after all, nothing the University has done prevent Professor Choudhry from asserting his contractual rights under state law, and his ability to assert his contractual rights seems to me to offer him all the process that is constitutionally due. Even assuming that the initiation of new proceedings was a deprivation of a property or liberty interest (a doubtful proposition in itself), Professor Choudry's ability to present a contractual defense in the pending proceedings, or seek a post-deprivation hearing on his contractual claim in state court (or an immediate injunction in state court if he faced truly irreparable injury) would provide him with due process of law. Cf. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 197 (2001) ("We hold that if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process."). If, on the other hand, Professor Choudhry never received any sort of binding assurance that his acceptance of the settlement agreement precluded further proceedings if the President or Board of Trustees once subsequently decided that the matter should be reopened, then I do not see how Professor Choudhry could claim any sort of entitlement to prevent a reopening of the matter. Perhaps Professor Choudhry has a good contract claim against the University under state law (although his apparent failure to make such a claim makes me doubt whether that is so), but I do not see how such a contract claim can be converted into a denial of due process.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Sep 28, 2016 7:08:37 PM

I teach at the undergraduate level, and I have observed only one Title IX proceeding up close. The adjudicator found the complainant 1% more credible than the respondent (just enough to reach preponderance but no more). Given the alleged behavior, the sanction was quite lenient (basically probation and counseling). One might interpret this leniency as being partly due to the uncertainty as to whether the respondent were guilty. One could interpret the Berkeley case in the same way.

Posted by: anonymous | Sep 28, 2016 9:05:58 PM

I want to clear up some misunderstandings suggested by Larry Rosenthal's and Michael' Selmi's comments -- a misunderstanding for which I take entire responsibility. (It is embarrassing to write so much and yet still be unclear: The situation brings to mind Mark Twain's statement: "The more you explain, the more I don't understand").

Both Larry and Michael attribute to me the (obviously mistaken) idea that there is some sort of mens rea element to Title VII under which the plaintiff would have to prove that the defendant had some sort of "bad purpose." I agree with them that there is no such requirement -- but my post never suggested otherwise.

Instead, I suggested that the defendant's intentions are probative on the question of "unwelcomeness." Meritor Bank requires that the plaintiff show that the defendant's conduct was "unwelcome." Where the plaintiff is silent about the conduct in question, then I suggested that unwelcomeness must be established by looking at objective norms of reasonably acceptable workplace behavior. As I wrote in the post, "[s]hould a complanaint's subjective feeling of unwelcomeness, never communicated to a defendant, be sufficient to create liability, even when that defendant’s actions are otherwise reasonably consistent with social norms of acceptable behavior?" My answer to this question was "No": In such a case, the plaintiff must show not only that he or she secretly harbored objections to the conduct in question but also that a reasonable boss or co-worker would have been aware of such objections, because the conduct violad objective social norms.

The defendant's motives are relevant to this question of whether the defendant's conduct crossed such an objective line defining unwelcomeness. There is a social norm against bosses using their power to obtain sexual favors from subordinates. If Choudhry violated this social norm, then that violation would be powerful evidence of unwelcomeness. By contrast, if Choudhry were simply engaged in a clumsy effort to foster a friendly environment, then this fact about his motives would make it harder to show that his conduct was objectively unwelcome. Employees often tolerate maladroit efforts by their supervisors to promote a friendly, informal workplace: Mere clumsiness is not normally regarded as constructive discharge from a job or breach of an implied term in an employment contract: Predatory behavior, by contrast, is.

Now I defer to Michael on all questions regarding employment law: If he tells me that the defendant's motivations and beliefs, however reasonable, are irrelevant to the question of unwelcomeness" under well-established caselaw, I'll take his word for it. Such a position, however, seems to me to be inconsistent with the spirit of Harris v. Forklift Systems, which specifies that an "objectively hostile or abusive work environment" is created when "a reasonable person would find [the work environment] hostile or abusive." The defendant's desire to abuse workers or otherwise express hostility toward plaintiff seems relevant to whether a reasonable person would view that defendant's conduct, so motivated, as hostile or abusive.

Michael also states that it is not necessary to discuss the appropriateness of Choudhry's actions in order to assess whether his Due Process rights were violated. I disagree. The appropriateness of a second hearing depends on the University's justification. If the University justified the second procedure by stating that the first procedure was procedurally unfair to Sorrell (say, because Choudhry bribed Steele or because the sanction was patently inadequate in light of the facts), then Choudhry's Procedural Due Process objection would be much weaker. If, by contrast, the University justified the second proceeding as a way to placate alumni and students who want to see Choudhry punished more severely regardless of the underlying merits of the first proceeding, then, under Matthews v Eldridge, I think that there is a more powerful claim that the second hearing is a violation of the Fourteenth Amendment.

To assess whether the Fourteenth Amendment requires some sort of estoppel, therefore, one must assess the merits of the first proceeding. Hence, my inordinately long account of the facts and my assessment of whether the process or outcome in the first proceeding was so flawed as to require a do-over.

Larry argues that Choudhry has a due process claim only if the settlement offered by the university was a contract under state law. Again, I disagree: Larry is confusing substantive due process with procedural due process. Assuming that he has a property interest in his job, Choudhry is entitled to be judged according to an administrative process that meets the mushy Matthews v Eldridge test of fairness. A process under which the university re-tries respondents whenever they are unpopular with alumni and students does not to my mind meet Matthews' admittedly hazy standards. Larry might disagree with this application of Matthews, but the question of whether Choudhry had a binding deal seems irrelevant to this assessment.

Posted by: Rick Hills | Sep 28, 2016 10:29:26 PM

This long post isn't really an exploration of what process is due in these kinds of hearings. It's merely an exceptionally one-sided attempt to exculpate the author's friend with some law thrown in at the end to justify its publication in Prawfsblawg, where many law professors will see it.

Posted by: Kevin Jon Heller | Sep 29, 2016 11:12:01 AM

Kevin, I value your perspective on matters of international law and politics, but your insulting reply to Rick Hills here is disgraceful and surprising. Chouhdry is not my friend, I don't know that I've ever met him in my life. I think we've exchanged a couple of e-mails that were blog-related years ago. Rick is candid that he is Sujit's friend. But his analysis is also correct, and Berkeley's conduct is not defensible. Yours, Brian Leiter

Posted by: Brian | Sep 29, 2016 11:48:38 AM

This is not the place for an extended discussion of sexual harassment law, which based on your follow-up, it remains clear that you misunderstand. Sexual desire is not an element and there was no question that his behavior was unwelcome based on her complaints and the nature of the behavior (it is not necessary for someone to complain directly to the harasser, particularly when it is her boss, or to complain at the first instance). Let me just add that most men accused of sexual harassment respond with some variation of the following: “I did not mean anything by it,” “I did not know it bothered her,” "If I knew it bothered her, I never would have continued," “I was just being friendly,” or “I did not do it.” Your factual recitation is also deeply inconsistent with the Report of the Berkeley investigative office, which made it clear that he hugged and kissed and touched the complainant repeatedly and that his conduct was not welcome. It also seems a particularly poor grounds for a preliminary injunction to claim that he did not do anything wrong and therefore the second hearing must be stopped, which is to me what your argument amounts to. I would add that his own PI motion never discusses the merits of the claim under the due process part of his argument, though they do in the factual recitation. As I noted before, based on the Investigative Report linked above, Choudhry’s behavior was seriously inappropriate and I think it is wrong for you to try to justify that behavior in a public forum, particularly based on your very limited (and erroneous) knowledge of sexual harassment law.

Posted by: MLS | Sep 29, 2016 11:52:20 AM

I was perhaps a bit unnecessarily rude in the comment above. I apologise to Rick for that. But I stand behind my point that the post seems more interested in rationalising Chaudhry's behaviour than discussing what procedures should apply in cases like his. And I would add that I do not think the post fairly acknowledges the full extent of Chaudhry's predatory behaviour, which bears no resemblance whatsoever to "continental greeting practices." (Something I say as an American who has lived in "kissing" countries for more than a decade.) Here are the relevant paragraphs from the report Rick links to. Readers should judge for themselves whether the actions described therein could be little more than a cultural misunderstanding:

"The second part of the Complainant’s complaint is that the Respondent has touched hugged and kissed her since September of 2014, and that this behavior constitutes sexual harassment. The Complainant stated that this behavior started out as “bear hugs” where he opened his arms wide and gave her a hug every few days. However, the hugging and kissing on her cheek quickly escalated into a daily event, occurring five to six times a day. For example, initially the Respondent blocked the entrance of her cubicle with his arms spread to give her a “bear hug,” but over time the hugs became “tighter and he [continued to] kissed me on the cheek.” Eventually, the Complainant began to feel “smothered” and “encroached upon” when the hugging and kissing started to occur daily. The hugs from the Respondent became “more lingering.” Then a kiss on the cheek would be added to the lingering hugs. The Respondent would also come up behind the Complainant while she was at her desk typing and rubbed her shoulders from behind, rubbed the side of her arms from her shoulders to her elbows and kissed her on the cheek from behind. The Respondent has also squeezed the Complainant’s arm when he passes by her desk. The Complainant reported that the Respondent’s pattern of hugging and kissing the Complainant on the cheek, escalated in February of March 2015 to multiple times, daily. The Complainant reported that the Respondent would hug and kiss her when he was “happy.” For example, he’d hug and kiss her good morning, after he had a good meeting, and to say good-bye. He kissed her mostly on the cheek, but also kissed her on the top of the head if she was sitting down at her desk. In January of 2015, the Respondent took the Complainant’s hands and put them on his waist, rubbed her hands and wrists that were on his waist, and kissed her on the cheek. After this incident the Complainant went to the bathroom and cried. The Complainant believed that others observed the Respondent’s behavior, and she felt that her professional reputation in the office was compromised."

Posted by: Kevin Jon Heller | Sep 29, 2016 11:52:44 AM

Brian,

I have apologised to Rick above. But I don't think I was "insulting" him by pointing out how his post reads (at least to me). I also neither claimed that Chaudhry engaged in sexual harassment (though I believe the evidence makes quite clear he did) nor defended Berkeley's handling of his case (which I think is completely indefensible).

Posted by: Kevin Jon Heller | Sep 29, 2016 12:06:38 PM

Kevin and Michael both fault me for not quoting more of the OPHD report. In what everyone acknowledges is a very long post, I quoted what I took to be Sorrell's most damaging allegations. (In fact, I quote verbatim much of the language re-quoted by Kevin).

But the critical point, for the purposes of assessing Choudhry's due process rights, is that Choudhry disputes these allegations. He has an alternative account of what happened in his office.

Kevin, you cannot conclude that Choudhry's conduct "bears no resemblance whatsoever to 'continental greeting practices'" simply by taking as fact the very account that Choudhry challenges! You seem to be making the error of treating OPHD officer's report as if it were the fact-findings of a jury or trial judge. It is not. It is not even the akin to the fact-findings of an administrative hearing officer. Rather, it is the report of an investigator, to be assessed by the ultimate factfinder -- in this case, the university officials charged with making the final determination of liability and sanction -- as part of the evidence against Choudhry.

Michael, you assert that "there was no question that his behavior was unwelcome based on her complaints and the nature of [Choudhry's] behavior." But, again, the "nature of [Choudhry's] behavior" is a matter of factual dispute: Choudhry emphatically denies many of Sorrell's allegations. One cannot infer that this behavior was unwelcome, therefore, simply by dismissing Choudhry's account as false and accepting Sorrell's allegations as true.

Finally, Michael, I am confused about why you repeat what I do not dispute -- that "[s]exual desire is not an element" of a Title VII constructive discharge claim under Meritor Bank. As I said in response to your initial comment, I never asserted otherwise: Of course, sexual desire is not an element of such a claim!

The defendant's reasons for his or her conduct, however, seem to me to bear on the question of whether such conduct is hostile or abusive. Do you deny THIS claim, which is the claim I actually made?

As I said before, I defer to your expertise in this area of employment law. But -- and I say this with respect, because the comments to this post are getting a bit too heated for my taste -- it seems unhelpful not to respond to my actual argument and, instead, knock down a strawman of your own making with dismissive comments about my ignorance.


Posted by: Rick Hills | Sep 29, 2016 12:18:00 PM

I commend you, Kevin, for apologizing and for offering a more substantial response. What you quote from the Report are the Complainant's allegations, not the Report's findings. The Respondent acknowledged much the conduct, but disputed the frequency, and the Report does not appear to have made a finding one way or another (if I am mistaken, someone will no doubt cite the relevant page). MLS's comment is a non-sequitur: that a defense is common among the correctly accused has no bearing on whether the defense is correct in a particular instance. Rick is not confused about sexual harassment law, as his response to Professor Selmi makes clear. I would put the point differently: the relevance of Choudhry's intent is that it has a bearing on whether the punishment was proportional, which in turn has a bearing on whether a second "trial" on the same facts is warranted. All the evidence in the public domain--including the fact that there are no other allegations against Choudhry--suggests that is behavior was clueless, not predatory. That should have been enough, in my view, for the Provost to have removed him from the Deanship in the first place, but that issue is now moot.

Posted by: Brian | Sep 29, 2016 12:22:31 PM

My last comment and Rick's crossed in cyberspace. I am sorry about the various typos in my comment, I hope the meaning is clear nonetheless.

Posted by: Brian | Sep 29, 2016 12:24:48 PM

The report concludes the following by a preponderance of the evidence: "The Respondent... engaged in intentional physical touching of the Complainant: hugging, kissing her cheek, squeezing her arm, rubbing her arms and shoulders, and holding her hands to his waist at the workplace. These actions consistently occurred over seven months. Therefore, the evidence reflects the Respondent’s conduct was unwelcome and objectively sexual in nature" (p. 9).

And the following by the same standard: "Therefore, the evidence supports that Respondent’s unwelcome conduct of a sexual nature occurred at least on a daily basis when he was in the office with the Complainant. Note: Even if we take the Respondent’s accounting of how often the conduct occurred (i.e., “once or twice a
week”) this amount would be sufficient to impact the Complainant’s employment" (p. 10). Note the specific rejection, by a preponderance of the evidence. of Chaudhry's account, at least with regard to frequency.

Finally, and most importantly: "The Complainant states that the Respondent’s conduct occurred multiple times on a daily basis. The Respondent reports that his actions occurred “once or twice” per week. I find that the Complainant is credible. The Complainant has no motive to exaggerate" (p. 10).

All in all, it is quite clear that the investigator concluded, by a preponderance of the evidence, that Sorrell's account of Chaudhry's behaviour is accurate.

Posted by: Kevin Jon Heller | Sep 29, 2016 12:43:28 PM

I appreciate Professor Hills's clarification, but I am afraid that I remain unpersuaded.

1. On the issue of unwelcomeness, Professor Selmi (of course) is quite correct. It might be helpful, however, to note the following excerpt from the EEOC's policy guidance on sexual harassment: "While a complaint or protest is helpful to charging party's case, it is not a necessary element of the claim. Indeed, the Commission recognizes that victims may fear repercussions from complaining about the harassment and that such fear may explain a delay in opposing the conduct. If the victim failed to complain or delayed in complaining, the investigation must ascertain why. The relevance of whether the victim has complained varies depending upon 'the nature of the sexual advances and the context in which the alleged incidents occurred.' 29 C.F.R. § 1604.11(b)." Given the power imbalance in this case, the complainant's failure to make a contemporaneous protest might well be regarded as less than dispositive.

2. On the due process issue, the concern I advance sounds in procedural due process (as did the case to which I referred). But, in case I was unclear, please permit me to elaborate. A procedural due process claim requires, first, the plaintiff identify a deprivation of a constitutionally protected liberty or property interest. On this score, the only deprivation that has occurred since the reopening of the settlement agreement is a deprivation of Professor Choudhry's asserted interest in not defending a new disciplinary proceeding. I do not grasp how this wholly procedural interest can be characterized as a constitutionally protected liberty or property interest; the Supreme Court usually rejects such claims. Cf. Olim v. Wakinekona, 461 U.S. 283 (1983) (prisoner's interest in to procedural regulations governing prison transfers did not amount to a constitutionally protected liberty interest). Second, even if Professor Choudhry has been deprived of a constitutionally protected liberty or property interest by being forced to defend the pending charge, if Professor Choudhry has a contractual right not to face that charge, even assuming that it would deny Professor Choudhry do process to have to raise this contractual defense in an administrative forum, I do not grasp why California has somehow deprived Professor Choudhry of his ability to assert his contractual rights today, in a California state court (and, if he faced irreparable injury, presumably a state court could offer him immediate injunctive relief). I know of no version of Mathews v. Eldridge that holds that the availability of a state judicial forum in which a contractual claim can be made fails to constitute a constitutionally adequate opportunity for hearing, and Lujan v. G & G Fire Sprinklers, to my eye, holds to the contrary. If, on the other hand, the prior settlement agreement, properly interpreted under applicable state law, contains no binding assurance that the University will not withdraw from the agreement, I do not see how it denies Professor Choudhry due process if California will not let him enforce a promise that the University never made. In short, it seems to me that Professor Choudhry has unpersuasively tried to dress a simple contract claim in due process garb, perhaps to disguise the weakness of that contract claim as a matter of state law.

Posted by: Larry Rosenthal | Sep 29, 2016 12:59:46 PM

The page 10 quote does support that the Report found in favor of the Complainant regarding frequency. The point about his intent still stands.

Posted by: Brian | Sep 29, 2016 1:00:52 PM

Kevin, I hope that I did not misrepresent the OPHD officer's report. Again, if you re-read my post, you will see that I quoted, in particular, the officer's statement on credibility.

The OPHD officer is not a fact-finder in the first instance, analogous to a jury or trial judge. She is merely an investigator, analogous to a beat cop submitting a report. Choudhry never had any opportunity for cross-examination. I do not know whether or to what extent he could subpoena witnesses and marshal evidence for his side of the story.
For these reasons, I do not think that you can treat the OPHD report with the same deference that you would, say, the findings of an administrative hearing officer (which, of course, are not, under APA section 557, entitled to any special deference from the ultimate agency fact-finder – here, the university officials).

Larry, Choudhry has been denied access to his office and to normal teaching responsibilities. That is the basis for his motion for a preliminary injunction. I think that these privileges of employment probably rise to a property interest.

Posted by: Rick Hills | Sep 29, 2016 1:07:46 PM

No, the defendant's subjective reasons for his conduct do not bear on whether the conduct created a hostile environment, which is determined by an objective standard. Of course, the objective standard will consider _everyone's_ outward behavior, but it considers no one's secret thoughts.

The subjective unwelcomeness standard is separate and is not about whether the complainant told anyone she did not like the behavior; it exists to prevent a plaintiff from a windfall recovery for objectively offensive behavior if she subjectively liked it. Whether the complainant made her objections known at the time is relevant only to whether the employer has a defense to vicarious liability, which is unavailable here anyway because the alleged harasser is her direct supervisor.

It also seems inappropriate to take at face value her attempted reassurance, "I know you didn't mean anything by it," given that he was still her boss at the time.

I agree that Berkeley's handling of this matter has been indefensible, at every stage.

Posted by: Jennifer Hendricks | Sep 29, 2016 1:10:30 PM

I suppose that I should add that if the due process problem of concern to Professor Hills is not the reopening of the disciplinary proceedings despite the settlement agreement, but instead that all potential University adjudicators are impermissibly biased against Professor Choudhry in light of the University's conduct to date, even if we can somehow overlook Professor Choudhry's failure to allege this form of bias in his complaint, the proper remedy, of course, is to compel the University to engage a neutral adjudicator (I understand there are a few people willing to perform such work in California for what they regard as a reasonable fee), rather than granting Professor Choudhry immunity on a charge that the University is entitled to bring.

Posted by: Larry Rosenthal | Sep 29, 2016 1:15:46 PM

Since I was called out in all caps, I will provide a brief response and hope to bring the temperature down a bit. I totally get that Professor Hills is just trying to defend his friend but it is not clear that this is the right forum to do that, particularly when it comes to allegations of sexual harassment. The defense that has been made here, and Professor Choudhry's claims reflected in the investigative report are the kinds of clams that women who make allegations of harassment have been dealing with forever. Even accepting Choudhry's facts, no woman should have to be kissed, hugged or have her boss put his hands on her waist (even if to calm her down as he said) as a condition of employment. That has been true for as long as sexual harassment law has been in place though it remains stubbornly true that too many women still have to put up with that behavior today and are routinely criticized for overreacting when they do complain. And it seems troublesome to me when male faculty members, who do not teach in the area and do not know the law, feel comfortable providing a detailed discussion of why someone's behavior did not run afoul of legal requirements (which is not necessarily the same as the standards in place at Berkeley) and you see the exact same thing happening in Title IX cases on campuses where many faculty members are suddenly experts on the failures of University policy and the deficiencies of the Dept. of Educ. guidance. As Brian Leiter noted above, Choudhry's actions justified his removal as Dean and based on what I have read, a strong argument can be made that his actions also caused a hostile working environment in violation of Title VII, under which, by the way, his intent is irrelevant in part because the accused will almost always express an innocent intent. Those of us who work in the field have seen this play out time and again over the last 20-30 years and it is particularly depressing to see educators chime in on areas of law they don't know, and that is why I commented where I ordinarily would not. Whether the second disciplinary proceeding raises due process issues strikes me as possibly more complicated but as I originally stated we have not yet seen the University's response, and as Larry Rosenthal has noted, this may turn out to be primarily a contract issue, but again it is too early to tell, and again, hard to see how the merits of the underlying claims are relevant. In any event, that is my take on this matter.

Posted by: Mike Selmi (MLS) | Sep 29, 2016 2:08:29 PM

I do not accept the assertion that he is simply "trying to defend his friend."

He acknowledged clearly his potential for bias.

The fact that he personally knows one of the parties does not mean that he cannot offer an analysis of the facts, factual dispute, law applied to undisputed and disputed facts, and policy. Nor does it mean others should not simply engage with him on those very points.

I find the implications that his analysis should be dismissed *because* of his potential for bias (which was readily acknowledged) rather disturbing. Assess his comments on the merits. The rest is ugly and unbecoming of people with legal training.

Posted by: Anon. | Sep 29, 2016 8:38:31 PM

Professor Selmi, are you really going to defend the DOE guidance? Even the part that essentially prohibits cross-examination of the complainant? Even the part that explicitly totally forbids university disciplinary panels from considering an accusing student’s sexual history with anyone other than the accused, no matter how relevant (see F7 of the questions and answers)? And despite the inability of the DOE to cite any caselaw supporting the specifics of its guidance, and despite the fact that over five years later, the DOE still hasn't started the notice and comment process?

Posted by: David Bernstein | Sep 29, 2016 8:59:00 PM

"The university officials who ultimately imposed the first sanctions on Choudhry, however, were in a position to assess the entire record and had no apparent reason to take Choudhry’s side."

You mean other than their interest in burying a very embarassing episode which would (and indeed has) led to the second Berkeley Law Dean resignation in the wake of sexual harassment?

Your presumptions are astonishingly naive.

Posted by: LawProf | Sep 29, 2016 9:20:21 PM

"ugly and unbecoming"

I find some of the rhetoric on this thread a tad over the top but given it is somewhat a personal intra-professor dispute on a sensitive subject, it's understandable. It isn't all neutral politeness around here.

If it was someone else, concern about "bias" would probably be seen as reasonable but because a fellow blogger here is allegedly involved, we get this rhetoric. What is "ugly" about it? It's a reasonable thing to think, even if it's for the sake of argument wrong. And, people HAVE argued the merits too. Why hide their concerns? Especially when one person followed up with substantive comments, I don't know what is particularly "unbecoming" either.

The legal dispute is appreciated -- strong opinions with law.

Posted by: Joe | Sep 29, 2016 9:40:37 PM

The extended defense of anyone in a workplace, let alone a boss to a subordinate, placing a woman's hands on his waist and kissing her cheek from behind (!!!) is really appalling. It betrays a tremendous and stunning lack of empathy for what it would be like to be employed in that situation.

I tend to think Berkeley's decision to re-hear is procedurally wrong, but I feel out of my depth on that issue. But this defense... I find it remarkable and incredibly sad. It is really hard to read this and feel that the author sees Sorrel as a full human.

Posted by: Elizabeth | Sep 29, 2016 11:27:12 PM

I find it funny that the Prawf is all about ditching the BARD standard when adjudicating sex assault crimes against a nameless powerless undergrad denying them of their due process. But when its friend or family in the crosshairs of these witchhunts Prawf finds a way to write a spirited defense of why these should be adjudicated by a different standard.

I hate the 50.001% guilty approach but the only way that will change is to subject the powerful (profs and admin) to the same standard they are projecting on the powerless (students).

Enjoy.

Posted by: Scott P | Sep 30, 2016 9:32:53 AM

Normally I would write the expected tl;dr but I did read the entire thing, reveling in schadenfreude all the time.

Welcome all in academe to the mob. You've earned it.

Posted by: Paul A'Barge | Sep 30, 2016 9:56:17 AM

I cannot help but believe that law professors were (and still are) thrilled to see a strong new legalistic element introduced in university life. They felt they would be immune to it, due to their legal skills, and that if anything this would increase demand for their services.
Probably the discussion of different standards of proof and guilt was catnip to them (like the discovery of a new species would be to a biologist). Maybe a lot of law professors feel that law needs to become more complicated in order to be truly interesting. Also, of course, if new law or legal procedures are adopted, then there is a chance for new contributions and recognition.
As another poster said, the worry about how an undergraduate student would fare in such a situation never crossed their mind.

Posted by: MB | Sep 30, 2016 10:34:32 AM

That a man could become a law school dean in 2014 and hug and kiss women under his supervision at the university is a complete and perfect proof that he is a cretin who should have no association with education. How could he be such an idiot in this day and age? Your or my private social conventions are irrelevant. The university has led the way in this social and legal change, and, as the previous poster put it so well, you have earned it.

Posted by: Stubbs | Sep 30, 2016 10:38:08 AM

As an American who has lived for more than a decade in countries where people greet each other by kissing, I feel obligated to stand up for "continental greeting practices." What Choudhry did bears no resemblance at all to such greetings, which are routinised (two kisses or three on alternating cheeks) and do not involve even the slightest bit of hugging I have also yet to meet the American who is completely comfortable with kissing as a greeting, even among ex-pats -- much less among Americans who go to a bunch of conferences with Europeans. So I am not persuaded in the slightest that Choudhry's harassment of Sorrell can be explained (away) as his attempt to "import European norms" into Berkeley. Sometimes predatory behaviour is just predatory behaviour.

Posted by: Kevin Jon Heller | Sep 30, 2016 10:55:11 AM

The story recounted in the Post, as well as the comments, are illuminating - to the shame of all involved, IMO.

If, as has been claimed, the University disposition of the case was a sham to "cover up" the misconduct of the accused, then the civil case filed by the complainant is the place for that to be sorted out.

The University's attempt to initiate a 'do-over' is deplorable. Given what has occurred, the result of any such sham is pre-ordained . . . . indeed, the only reason for the "do-over" is because the University doesn't want to stand behind the disposition of the first proceeding, and therefore desires the opportunity to be more punitive.

What's obvious in reading the comments is that so many are far more invested in "the cause" than they are in justice for the individuals involved.

But the real scandal is this:

You people are getting worked up over what has happened to a law school dean, hardly someone lacking in the resources and position to offer an adequate defense when accused of sexual misconduct (and subjected to the Kangaroo Court procedures which pass for "University disposition" of such matters these days).

What of the students who find themselves dropped into this meat grinder, who lack those resources? What of "due process" for them?

Posted by: BRB | Sep 30, 2016 10:58:08 AM

Non-lawyer here, but with experience in administrative investigations, including investigations of alleged sexual harassment. I'd like to comment on a pair of points from the original post.

>>>The purpose of a “do-over,” therefore, cannot be to correct some manifest injustice in the first proceeding.

Since this is an administrative proceeding, justice need not be the point. In fact, I would be highly surprised if the University had published a policy stating that the goal of its sexual harassment complaint procedure is the administration of justice. The goal of such processes, by policy, is usually promoting an environment free from harassment and other sexual impropriety.

The administrators can (and must) advance the goals and purposes of the institution, within limits imposed by, among other things, the rights of faculty and employees, notably those rights established by University policy and by labor law. If they feel that they blew it and as a result are failing to advance those goals and purposes, and if they think that they can reassess the case without violating any rights, then it is within their power to do so, however inadvisable that may otherwise be. The administration does not seem to think that double jeopardy protection is among the rights that they need to respect; that issue is presumably being considered in Choudhry’s complaint. If the university had a policy against double jeopardy then surely the case would not have gotten this far; but without such a policy where would such a due process right flow from?

>>> ...not only does Choudhry dispute this account of the facts, but, contrary to most news accounts, the university officials for resolving the dispute made no finding averse to Choudhry’s version...

This depends crucially on the status of the OPHD report, which is missing two elements that I would normally expect to find: a front page appointing the investigating officer, and a back page with the appointing authority approving or disapproving the itemized findings of section VII, number by number. However, the report being in the public domain indicates (though it does not strictly prove) that the findings were approved, since if they were not approved then the investigators’ report would be a draft document (deliberative, non-decisional) of no standing, and therefore not releasable to the public. On the other hand, if the findings were partially approved and partially disapproved, then the approval page with its itemization would surely have been part of the public release. I infer then from public release that the OPHD report’s findings are more than merely deliberative, that they are approved and authoritative fact for administrative processes, including specifically findings #1 and #2 which together satisfy the definition of sexual harassment given in the policy quoted in section IV.

Kristo Miettinen

Posted by: Kristo Miettinen | Sep 30, 2016 1:02:25 PM

Rick:

You observe that "Choudhry has been denied access to his office and to normal teaching responsibilities" and suggest that "these privileges of employment probably rise to a property interest." As I understand it, Professor Choudry is currently receiving his full and quite generous salary for doing nothing. I wonder if there is any precedent that supports the view that such a paid vacation (albeit pending the resolution of a the disciplinary proceeding) amounts to a deprivation of "property" within the meaning of the Due Process Clause. Moreover, if Professor Choudhry has no contractual entitlement to enjoy the privileges to which you refer (again, I note that he has advanced no contract claim), I fail to grasp how he has been deprived of a property interest. An excerpt from Town of Castle Rock v. Gonzales comes to mind: "The procedural component of the Due Process Clause does not protect everything that might be described as a 'benefit': 'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire' and 'more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Such entitlements are, ‘of course, ... not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ Paul v. Davis, 424 U.S. 693, 709 (1976) (quoting Roth, supra, at 577)."

But even if Professor Choudhry has been deprived of property in the constitutional sense by the University's repudiation of the settlement agreement accompanied, as it was, by what amounts to paid leave, again, I fail to grasp why his ability to assert in the state courts whatever contractual rights he enjoys, whether by virtue of the settlement agreement or otherwise, fails to supply him with due process of law.

Larry

Posted by: Larry Rosenthal | Sep 30, 2016 2:49:56 PM

I'm not a lawyer but I read English pretty well and after making it through at least three quarters of all the posts I'm compelled to ask, so this is how you SOBs make a living?

Posted by: peter38abc | Sep 30, 2016 4:01:01 PM

With his permission, I am posting the contents of an email I received from Kevin Gerson, the director of the UCLA Law Library, addressing a question that I raised in an earlier comment to Professor Hills's post:

With regard to your question (“I wonder if there is any precedent that supports the view that such a paid vacation amounts to a deprivation of property within the meaning of the Due Process Clause”), the below case law holds just the opposite:

“First Circuit precedent deems a suspension with pay as an event not constituting a deprivation of property precisely because a suspension with pay is not sufficiently serious. Torres–Rosado, 335 F.3d at 10 (holding no deprivation of property interest because the suspension with pay “caused only a very temporary deprivation of job functions and no financial loss”).” Collins v. Univ. of New Hampshire, 746 F. Supp. 2d 358, 370 (D.N.H. 2010), aff'd, 664 F.3d 8 (1st Cir. 2011) “Even if we were to consider Mr. Townsend's temporary reassignment as tantamount to a suspension, under the existing case law, a suspension with pay would not constitute the deprivation of a property right subject to federal constitutional protections. See Gilbert v. Homar, 520 U.S. 924, 929–30, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997); Board of Educ. v. Loudermill, 470 U.S. 532, 544–45, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir.1998); Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 546–47 & n. 25 (7th Cir.1998).” Townsend v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001). Many cases also support your contention that a contractual right (even if one exists) to a particular procedure does not, of itself, create a property interest. For example, "[a]n investigation is not a property interest itself, but more appropriately constitutes the 'due process' that would be required before deprivation of an actual property interest." Davis v. Dallas Independent School Dist., 448 Fed. Appx. 485, 495, 276 Ed. Law Rep. 95 (5th Cir. 2011) (per curiam).

Best,

Kevin Gerson
UCLA Law Library Director

Posted by: Larry Rosenthal | Sep 30, 2016 6:56:08 PM

I'm a bit shocked that no one has explained the logic (and the University's justification) behind the second disciplinary proceeding. The first addressed Choudhry's behavior as an administrator. The second addresses his status as a professor. There could be several instances where an administrator and professor (same person) could be subject to different disciplinary processes. For example, a dean could engage in shady bookkeeping practices that warrant dismissal or discipline in that role, but which would possibly have no effect on his status as professor. So Choudhry is technically not being subject to double jeopardy, but rather being evaluated as to his fitness to continue as a professor.

Now, having said all that, it's obvious to anyone paying attention that this second process would never have begun if the first proceeding hadn't been made public, and if the timing of it didn't constitute the "last straw" for President Napolitano. But that doesn't mean the second process is invalid on its face.

Posted by: Michael | Sep 30, 2016 8:09:01 PM

Basically a long winded bullshit explanation from an asshole

Posted by: DEEBEE | Sep 30, 2016 10:03:13 PM

If the original post is correct, even the first punishment was far too drastic. A $20,000 fine for hugging an employee who never objected? And if she was on the verge of quitting anyway, fear of being fired wouldn't make her silent. It seems it is the dean who was the one in a weak bargaining position, trying to persuade her to stay. Or, she could have told some professor about it and had him tell the dean she objected, if she was that shy.

Posted by: Eric Rasmusen | Oct 1, 2016 1:30:20 PM

While the attempt to punish Choudry twice is reprehensible (no doubt a political survival effort by President Napolitano) do not weep for him when it comes to the first punishment, a weak attempt to hide his crude behavior. I challenge anyone (other than Donald Trump) to read the statement of his victim published in the Daily Cal (the UC Berkeley student newspaper) and defend or excuse his actions: http://www.dailycal.org/2016/09/09/tyann-sorrells-statement/

Posted by: LawProf | Oct 1, 2016 4:56:34 PM

While the attempt to punish Choudry twice is reprehensible (no doubt a political survival effort by President Napolitano) do not weep for him when it comes to the first punishment, a weak attempt to hide his crude behavior. I challenge anyone (other than Donald Trump) to read the statement of his victim published in the Daily Cal (the UC Berkeley student newspaper) and defend or excuse his actions: http://www.dailycal.org/2016/09/09/tyann-sorrells-statement/

Posted by: LawProf | Oct 1, 2016 4:56:35 PM

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