The mess at Berkeley

Note: At Scott’s suggestion, I’ve changed the title of this post, which was misleading, in that it didn’t make sense in the context of the argument in the post, which remains unchanged.  Choudhry clearly engaged in sexual harassment as defined by his employer, and the decision to remove him as dean was amply justified.  Firing him from the faculty is much more problematic, especially given the procedural irregularity of holding a second proceeding and giving him a much harsher  enhanced punishment, not because of any new facts, but because of public outrage over the initial punishment.

The University of California at Berkeley has effectively fired law professor Sujit Choudhry, bringing to an end a two-year imbroglio over his conduct toward an administrative assistant while he was dean of the law school.

This case is troubling on a number of levels, and I have very mixed feelings about it.  I’ll give a brief summary of the facts, but anyone interested in the matter should at a minimum read the report issued by Berkeley’s Office for the Prevention of Harassment and Discrimination in July of 2015.  (Note that this report is an investigatory document, not an official judicial or administrative finding of fact, although it reaches factual conclusions of its won).

In brief, Choudhry’s executive assistant Tyann Sorrell accused him of:

(1) Behaving in a demeaning way toward her in a fashion that was unrelated to sex or gender discrimination; and

(2) Sexually harassing her.

Point (1) is getting largely ignored in the coverage of the case, probably because the investigation concluded that the alleged demeaning behavior, assuming it occurred as described, didn’t violate the university’s sexual harassment policies.  But I suspect it’s actually quite salient to the case.

Choudhry became dean in July of 2014.  Sorrell complained that Choudhry forced her to perform various menial tasks that she didn’t think were part of her job, including picking up his dry cleaning, finding a wash and fold laundromat for him,  getting him meals, snacks, and drinks — she says he yelled at her when his tea got cold — and faxing mortgage documents.  (Choudhry’s defense to making the latter requests of his subordinate was that the mortgage documents in question related to Berkeley’s subsidized mortgage program for tenure-track faculty such as himself, and that therefore applying for the mortgage was part of his job.  Choudhry was paid $472,917 by Berkeley in 2014-2015.  Sorrell, who I bet wasn’t eligible for any special employer-subsidized mortgages, was making $66,850.)

Sorrell also claimed Choudhry got upset on the job a lot, and would sometimes refer to some of his distinguished colleagues as “assholes,” “son of a bitch” and “mother fuckers.”  (I believe in the King’s English this is actually spelt “motherfuckers,” but whatever).

The OPHD decided that none of this had anything to do with sexual harassment — an arguably dubious conclusion, given that Choudhry’s alleged behavior in this vein has a distinctly Don Draperish quality to it, and it’s safe to say that Don’s treatment of the “girls” in his office had a gendered/sexualized component.

Instead, the OPHD busted Choudhry for what the office concluded in its investigation was inappropriate touching of Sorrell.  Again, you should read the report and draw your own conclusions, but here’s the gist of her accusations:

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.

Choudhry’s response was that he didn’t intend anything sexual by this kind of thing, that the behavior wasn’t nearly as common as Sorrell claimed (he said it was “once or twice a week” as opposed to several times daily), and that he disputed a couple of specific details, such as kissing Sorrell from behind when she was at her desk. (See the report for the full details).

Anyway, the investigative report, using a preponderance of the evidence standard, believed Sorrell’s version over Choudhry’s, although it’s worth noting that there doesn’t seem to be a radical disjunction between their two versions of the relevant events.  (It’s also worth noting that the investigator’s basis for believing Sorrell in regard to the question of frequency — that she had no motive to exaggerate — is dubious.  Sorrell’s motive for exaggeration, conscious or unconscious, is identical to Choudhry’s motive for understatement).

After an administrative proceeding, Berkeley’s provost docked Choudhry’s pay by 10% for the year — this was in effect a $47,000 fine — made him apologize to Sorrell, and required him to undergo counseling while having his behavior “monitored.”  Shortly after this punishment was announced in March of last year, Sorrell filed a lawsuit, which led to much immediate public outcry.  Berkeley’s top administrators, reeling from a series of sexual harassment incidents, including one involving the law school’s former dean, reacted by forcing Choudhry to resign from the deanship.

This didn’t mollify critics inside and outside the institution though, and eventually the university decided to reopen the matter.  (Rick Hills, who is as he acknowledges a friend of Choudhry’s and not a disinterested observer, wrote a long and interesting post on the subject of this quasi-double jeopardy here).

The upshot was that Choudhry has now effectively been fired from his tenured position on the UC faculty.  (After the end of this semester he will remain on unpaid sabbatical until next spring, at which time he will voluntarily resign, with “voluntarily” here being what lawyers call “a term of art.”).

As a began this post by saying, this is a troubling situation on many levels. First, it boggles my not that easily boggled mind that a 45-year-old male academic in 2015 thought that it was OK to behave as Choudhry admits he behaved toward a female subordinate.  Choudhry was born in India, but he’s been in North America since he was a child, so I doubt this has anything to do with cultural misunderstanding in that sense.  And whileI know nothing of the no doubt various Indian sub-cultural mores in these matters, I would be surprised if any of them featured such a casual attitude toward physical contact between the genders in professional work places.  (There’s also been some talk of Choudhry perhaps inadvertently employing “European” customs in the uptight American workplace. This strikes me as absurd, given that he’s not European, and in any case highly ritualized European greeting customs between male and female acquaintances bear no resemblance to his admitted behavior).

Second, while I personally find Choudhry’s claim that he had no (conscious) sexual intentions toward Sorrell plausible, the extremely inappropriate character of his behavior — and its legal status as sexual harassment — doesn’t depend on such intentions.  Choudhry’s admitted behaviors are the sorts of things that are only appropriate between people who are genuinely intimate, whether physically or emotionally, and/or as gestures of affectionate relations between profoundly unequal people.  This kind of profound inequality is essentially that found between adults and young children.  It should go without saying that treating one’s co-workers as either involuntary intimates or as patronized pseudo-children  is completely unacceptable.

Choudhry’s behavior, whether in the weaker version he describes, or the stronger one described by Sorrell, was seriously inappropriate, and deserved to be sanctioned. There was, it’s fair to say, something distinctly creepy about it, whatever his intentions.  And I have no problem with the conclusion that it was bad enough, and revealed a sufficient lack of judgment, that it was ultimately appropriate to remove him from the deanship, given the discretionary nature of that job, and the sensitive situation the university now finds itself in, after decades of coddling vastly worse instances of sexual harassment.

All that said, Berkeley’s subsequent handling of this matter has been appalling.  Keep in mind that this is an institution that continues to employ on the very same faculty as Choudhry a straight-up war criminal: a man who played an absolutely central role in torturing large numbers of human beings, by supplying specious legal rationales for the commission of that particular war crime by the United States of America.  (By the way Berkeley paid John Yoo $406,385 in 2015, which is a shocking enough number all by itself, but which in addition is $116,000 more than the institution was paying him just five years earlier, when he was freshly returned from his international law crime spree).

So Berkeley has the stomach to not merely retain, but to shower massively increased compensation on, the deplorable Professor Yoo, but it’s using an administrative mulligan to toss Sujit Choudhry out of a metaphorically high window, pour encourager les autres I suppose.

None of this is to any way deny or minimize what is apparently a long-standing pervasive problem with sexual harassment at the institution.   (See, for example, the allegations in the lawsuit just filed against philosophy professor John Searle).  But destroying Choudhry’s career as a convenient gesture of expiation merely exacerbates rather than ameliorates that sordid history.