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Briefing for Deans and Chairs January 30, 2003. The Case of the Amorous Dean.

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Presentation on theme: "Briefing for Deans and Chairs January 30, 2003. The Case of the Amorous Dean."— Presentation transcript:

1 Briefing for Deans and Chairs January 30, 2003

2 The Case of the Amorous Dean

3 What happened? On Wednesday, November 27, 2002, the day before Thanksgiving, John P. Dwyer, Dean of UC Berkeley’s Boalt Hall, one of the nation’s top law schools, announced his resignation from both the deanship and his tenured faculty position in a memorandum to faculty, staff, and students. On Wednesday, November 27, 2002, the day before Thanksgiving, John P. Dwyer, Dean of UC Berkeley’s Boalt Hall, one of the nation’s top law schools, announced his resignation from both the deanship and his tenured faculty position in a memorandum to faculty, staff, and students. In the memo, Dwyer claims that he “had a single encounter two years ago that was consensual, but there is no allegation that any form of sexual intercourse occurred.” He has not spoken publicly since the resignation. In the memo, Dwyer claims that he “had a single encounter two years ago that was consensual, but there is no allegation that any form of sexual intercourse occurred.” He has not spoken publicly since the resignation. The student’s lawyer, reached by the press while vacationing in Europe, reportedly said that the student was sexually assaulted. The student’s lawyer, reached by the press while vacationing in Europe, reportedly said that the student was sexually assaulted.

4 The student’s account of a December, 2000 encounter The student went out for dinner and drinks with a group of other students. They were joined by the dean at the restaurant. The student went out for dinner and drinks with a group of other students. They were joined by the dean at the restaurant. After that gathering broke up, five students and the dean went to a bar for more drinking. After that gathering broke up, five students and the dean went to a bar for more drinking. As the second gathering broke up, the dean offered the student a ride to her nearby Oakland apartment, which she accepted. She passed out when she got home at around 2:00 a.m. As the second gathering broke up, the dean offered the student a ride to her nearby Oakland apartment, which she accepted. She passed out when she got home at around 2:00 a.m. She awoke at 4:37 a.m. to find the dean “fully dressed, in her bed, fondling her genitals with his hand and lying with his head near her breasts.” She awoke at 4:37 a.m. to find the dean “fully dressed, in her bed, fondling her genitals with his hand and lying with his head near her breasts.” Dwyer got up and left when she woke up. The student passed out again. When she woke up the second time at 8:00 a.m., “she found a bruise on her left breast. She called her mother, told her about the incident, and then the mother came over to take a picture of the bruise.” Dwyer got up and left when she woke up. The student passed out again. When she woke up the second time at 8:00 a.m., “she found a bruise on her left breast. She called her mother, told her about the incident, and then the mother came over to take a picture of the bruise.” As reported in the LA Times, attributed to the student’s attorney

5 What would happen at UCLA? In a press release, Berkeley states that the student “spoke with three members of the law faculty…in the semester following the December 2000 incident.” In a press release, Berkeley states that the student “spoke with three members of the law faculty…in the semester following the December 2000 incident.” According to Berkeley: “Later, on May 23, [2002], days before she graduated, she visited the campus’s Title IX officer and requested information on sexual harassment policies and procedures. She declined to give her full name, but explained what had occurred in December 2000 and said it involved a dean at the university.” According to Berkeley: “Later, on May 23, [2002], days before she graduated, she visited the campus’s Title IX officer and requested information on sexual harassment policies and procedures. She declined to give her full name, but explained what had occurred in December 2000 and said it involved a dean at the university.” On October 11, 2002 the student filed a formal complaint with the Title IX Officer. On October 11, 2002 the student filed a formal complaint with the Title IX Officer.

6 What should Professor Krieger do? Professor Linda Krieger, identified by the LA Times as “a specialist in discrimination law” knew the student well and “considered her one of the brightest.” Professor Linda Krieger, identified by the LA Times as “a specialist in discrimination law” knew the student well and “considered her one of the brightest.” Seven months before the resignation, the student “confided [to Krieger] that she had been sexually assaulted 16 months earlier by the dean of the school.” Seven months before the resignation, the student “confided [to Krieger] that she had been sexually assaulted 16 months earlier by the dean of the school.” Krieger found the student to be credible. Krieger found the student to be credible. Krieger states: “It was horrible.” Krieger states: “It was horrible.” As reported in the LA Times, attributed to Krieger

7 What Krieger did Krieger advised the student to report the incident to the Title IX Officer. Krieger advised the student to report the incident to the Title IX Officer. Krieger called the Title IX Officer, paving the way for the student, but did not disclose the identity of either the student or the dean, leaving that to the student to decide. Krieger called the Title IX Officer, paving the way for the student, but did not disclose the identity of either the student or the dean, leaving that to the student to decide. As reported in the LA Times, attributed to Krieger

8 Should the campus delay? According to Krieger, “the student did not pursue the matter over the summer because she was studying for the bar exam.” According to Krieger, “the student did not pursue the matter over the summer because she was studying for the bar exam.” Krieger states that she realized that “if I kept the information to myself, and the alleged perpetrator harmed someone else, that it would have very, very negative consequences, not only for the subsequent victim, but also for the organization and possibly even for me personally.” Krieger states that she realized that “if I kept the information to myself, and the alleged perpetrator harmed someone else, that it would have very, very negative consequences, not only for the subsequent victim, but also for the organization and possibly even for me personally.” Krieger asserts that she tried to find guidance but “there was none to be had...[n]ot even the university’s general counsel could help her.” Krieger asserts that she tried to find guidance but “there was none to be had...[n]ot even the university’s general counsel could help her.” Krieger states that she eventually decided to notify the university, “but before she could, the student filed a formal complaint.” Krieger states that she eventually decided to notify the university, “but before she could, the student filed a formal complaint.” As reported in the LA Times and attributed to Krieger

9 What should Professor Swift do? Professor Eleanor Swift, a former associate dean at the Boalt Hall law school states that the student, who “was upset, angry and scared,” sought her advice in the spring of 2001, several months after the student claimed to have been molested by Dwyer. Professor Eleanor Swift, a former associate dean at the Boalt Hall law school states that the student, who “was upset, angry and scared,” sought her advice in the spring of 2001, several months after the student claimed to have been molested by Dwyer. Swift said “she counseled the student at length on ways to pursue a sexual harassment complaint against [the] Dean…[and] described several formal and informal steps that the student could take.” Swift said “she counseled the student at length on ways to pursue a sexual harassment complaint against [the] Dean…[and] described several formal and informal steps that the student could take.” “I sought to give her some comfort. I kept her statements confidential, which is what she wanted.” “I sought to give her some comfort. I kept her statements confidential, which is what she wanted.” Swift described a second meeting with the student at which Swift said she described the university’s sexual harassment complaint procedures, and outlined less formal approaches “that might produce an acknowledgement from the dean and some form of remedy, plus assurance that this would not happen to other women students.” Swift described a second meeting with the student at which Swift said she described the university’s sexual harassment complaint procedures, and outlined less formal approaches “that might produce an acknowledgement from the dean and some form of remedy, plus assurance that this would not happen to other women students.” Swift says that she offered to speak to the dean herself, to ask a male faculty member to do so, or to accompany the student to speak with others. Swift says that she offered to speak to the dean herself, to ask a male faculty member to do so, or to accompany the student to speak with others. Ultimately, “the student decided not to pursue the matter while she was enrolled at the school.” The student told Swift that “she wanted to be able to finish law school and concentrate on her…work.” Ultimately, “the student decided not to pursue the matter while she was enrolled at the school.” The student told Swift that “she wanted to be able to finish law school and concentrate on her…work.” As reported in the LA Times, attributed to Swift

10 What should the Title IX officer do? The student first contacted the Title IX officer on May 23, 2002, days before she graduated…and requested information on sexual harassment policies and procedures. She declined to give her full name, but explained what had occurred in December 2000 and said it involved a dean at the university.” The student first contacted the Title IX officer on May 23, 2002, days before she graduated…and requested information on sexual harassment policies and procedures. She declined to give her full name, but explained what had occurred in December 2000 and said it involved a dean at the university.” She was told that under campus policy when someone is accused by name of sexual harassment, the Title IX office is obligated to launch a formal investigation. She declined at that time to name the individual. She chose not to file a complaint. She was told that under campus policy when someone is accused by name of sexual harassment, the Title IX office is obligated to launch a formal investigation. She declined at that time to name the individual. She chose not to file a complaint. In response to the student’s expressed concerns about retaliation, the Title IX Officer told the student that the campus has strong policies against retaliation and described the steps the student could take if she believed she was retaliated against. In response to the student’s expressed concerns about retaliation, the Title IX Officer told the student that the campus has strong policies against retaliation and described the steps the student could take if she believed she was retaliated against. The student was given in writing the Berkeley policy and complaint procedure and was informed of the rights of the accused under the Faculty Code of Conduct. The student was given in writing the Berkeley policy and complaint procedure and was informed of the rights of the accused under the Faculty Code of Conduct. As reported by Berkeley in a press release

11 The student’s version The student states that the Title IX Officer did not know which procedures applied in connection with a complaint against the dean, and she could not assure the student that her identity would remain confidential or that she would be protected from retaliation if she lodged a formal complaint. The student states that the Title IX Officer did not know which procedures applied in connection with a complaint against the dean, and she could not assure the student that her identity would remain confidential or that she would be protected from retaliation if she lodged a formal complaint. The student states that the professors expressed doubt about their responsibilities and concern about possible retaliation if they became involved. The student states that the professors expressed doubt about their responsibilities and concern about possible retaliation if they became involved. As reported in the LA Times, attributed to the student’s attorney

12 Were there any warning signs? He had a reputation for dating female students far younger and less powerful than he. He had a reputation for dating female students far younger and less powerful than he. His estranged brother says that Dwyer “would boast about having sex with students.” His estranged brother says that Dwyer “would boast about having sex with students.” Even after he became dean, students joked about his alleged flirtations and dalliances. Even after he became dean, students joked about his alleged flirtations and dalliances. He was dubbed by some as the “Bill Clinton of Boalt Hall.” He was dubbed by some as the “Bill Clinton of Boalt Hall.” He began dating his third wife (from whom he is now divorced) when she was a third year law student. He began dating his third wife (from whom he is now divorced) when she was a third year law student. Heavy drinking is often the norm at law school functions. Heavy drinking is often the norm at law school functions. As reported by the LA Times, sometimes without attribution

13 Does the student have a good case? Under Title IX, a university is liable only if it is deliberately indifferent to sexual harassment of which it is actually aware. Under Title IX, a university is liable only if it is deliberately indifferent to sexual harassment of which it is actually aware. Was the student “sexually harassed”? Was the student “sexually harassed”? Did the university “actually know”? Did the university “actually know”? Was the university “deliberately indifferent”? Was the university “deliberately indifferent”? What if, as Swift feared, another student was molested after the report to Swift? What if, as Swift feared, another student was molested after the report to Swift?

14 What if she had been an employee instead of a student? Employers are strictly liable for harassment by supervisors. They are liable for other harassment about which they “knew or should have know.” Employers are strictly liable for harassment by supervisors. They are liable for other harassment about which they “knew or should have know.” Should the university have known? Should the university have known? Would Dwyer face personal liability? Would Dwyer face personal liability? Would Krieger or Swift? Would Krieger or Swift? What if another employee was molested after the report to Swift? What if another employee was molested after the report to Swift?

15 UCLA’s Definition Sexual harassment is any unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

16 Quid Pro Quo Submission to the conduct is made either explicitly or implicitly a term or condition of instruction, employment, or participation in other University activity, Submission to the conduct is made either explicitly or implicitly a term or condition of instruction, employment, or participation in other University activity, Submission to or rejection of such conduct by an individual is used as a basis for evaluation in making academic or personnel decisions, or Submission to or rejection of such conduct by an individual is used as a basis for evaluation in making academic or personnel decisions, or You got the part!

17 Hostile Environment Such conduct has the purpose or effect of unreasonably interfering with an individual’s performance or creating an intimidating, hostile, or offensive University environment.

18 Necessary Showings The conduct must be severe or pervasive The conduct must be severe or pervasive “Mere offensive utterances” do not constitute sexual harassment. “Mere offensive utterances” do not constitute sexual harassment. Courts look at all of the circumstances to determine whether a reasonable person would consider the conduct to be severe or pervasive from the victim’s viewpoint. Courts look at all of the circumstances to determine whether a reasonable person would consider the conduct to be severe or pervasive from the victim’s viewpoint. Frequency and severity are balanced. Frequency and severity are balanced.

19 Social Context Determining whether a reasonable person would consider behavior to be severe requires “careful consideration of the social context in which the particular behavior occurs and is experienced by its target.” “The real social impact of workplace behavior often depends on a constellation of surrounding circumstance, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale v. Sundowner Offshore Services

20 Example Is a football player’s environment severely or pervasively abusive if the coach smacks him on the buttocks as he heads onto the field? Is a football player’s environment severely or pervasively abusive if the coach smacks him on the buttocks as he heads onto the field? Would the same behavior reasonably be experienced as abusive by the coach’s secretary back at the office Would the same behavior reasonably be experienced as abusive by the coach’s secretary back at the office

21 Personal Liability The University will defend an employee against any claim or action arising out of an act or omission occurring within the scope of employment. The University will defend an employee against any claim or action arising out of an act or omission occurring within the scope of employment. The University will also pay any judgment or any compromise or settlement of the claim or action to which the University has agreed, again assuming the claim or action arises out of an act or omission occurring within the scope of employment. The University will also pay any judgment or any compromise or settlement of the claim or action to which the University has agreed, again assuming the claim or action arises out of an act or omission occurring within the scope of employment. As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines that the act or omission was within the course and scope of employment, that the employee acted in good faith, without actual malice and in the apparent best interests of the University and that payment would be in the best interests of the University. As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines that the act or omission was within the course and scope of employment, that the employee acted in good faith, without actual malice and in the apparent best interests of the University and that payment would be in the best interests of the University. Note: Sexual harassment is not deemed to occur within the scope of employment. Note: Sexual harassment is not deemed to occur within the scope of employment.

22 Personal Liability The University will defend an employee against any claim arising within the scope of employment. The University will defend an employee against any claim arising within the scope of employment. The University will also pay any judgment or settlement of the claim to which the University has agreed, again assuming the claim arises within the scope of employment. The University will also pay any judgment or settlement of the claim to which the University has agreed, again assuming the claim arises within the scope of employment. As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines that: As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines that: the claim arose within scope of employment, the claim arose within scope of employment, the employee acted in good faith, without actual malice and in the apparent best interests of the University, and the employee acted in good faith, without actual malice and in the apparent best interests of the University, and payment would be in the best interests of the University. payment would be in the best interests of the University. Note: Sexual harassment is NOT deemed to occur within the scope of employment. Note: Sexual harassment is NOT deemed to occur within the scope of employment.


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