The Berkeley sexual harassment scandal took an odd turn on Thursday when Sujit Choudhry, the former Berkeley Law dean, filed a racial discrimination lawsuit against the school. Choudhry alleges that Berkeley violated his rights to due process and equal protection under the 14th Amendment in responding to his executive assistant’s claims that he harassed her. Specifically, he alleges that Berkeley singled him out on account of his race “as a means to try to improve the University’s image”—while treating white professors accused of similar misconduct more leniently.
At this point, the Berkeley story has taken so many twists that it’s difficult to keep track of each party’s purported wrongdoing. The trouble began in March of 2015, when Tyann Sorrell—the executive assistant to Choudhry, who was then dean of Berkeley Law—complained to the school’s Title IX officer. According to Sorrell, Choudhry had routinely treated her in a “rude and demeaning manner” and inundated her with unwanted “lingering hugs” and kisses up to six times a day. Following an investigation, Berkeley concluded that Sorrell’s complaints were valid and, in July, meted out its punishment to Choudhry: professional training, a letter of apology, and a 10 percent cut in salary.
This punishment was widely criticized as too lenient, especially since Choudhry was permitted to keep his job. After Sorrell filed a lawsuit against her former boss and the university, Choudhry resigned from the deanship—but this fall, he returned to campus in his capacity as a professor. In the meantime, Berkeley has conducted a second investigation into Choudhry’s purported harassment and is allegedly proposing more punishments, namely, a campus ban and a loss of tenure. Now Choudhry has sued the school, claiming that it targeted him because he is a non-U.S. citizen of South Asian descent and that it is making an example of the minority while letting the real harassers go free. “The University,” his lawsuit asserts, “hopes to deflect attention from its failure to meaningfully punish Caucasian faculty and administrators who were found to have committed appalling sexual misconduct.”
Sifting through this thicket of accusations can induce migraines, but there are a few grounding facts that can help to clear the underbrush. First of all, it seems clear that Choudhry did repeatedly touch Sorrell inappropriately, unless Berkeley’s first investigation is simply full of lies. Consider these findings, in which Sorrell is the Complainant and Choudhry the Respondent:
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 … 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 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.
This behavior is completely inappropriate and—if it did occur, as the university found by a preponderance of the evidence—it certainly rises to the level of sexual harassment.
However, Berkeley also appears to have botched its response to this case of misconduct. After such extensive findings of harassment, the university’s punishment was puzzlingly lenient. Still, Choudhry’s settlement with the university seemed to bring the matter to a close. Berkeley apparently did not anticipate an outcry over Choudhry’s light punishment; in response to protests, the administration attempted to reopen a case that it had already closed in order to repair its image. And the Choudhry affair wound up getting swept into a much bigger story about Berkeley’s overall negligence toward pervasive sexual harassment on campus.
So: Did the university wind up zeroing in on Choudhry in an effort to prove that it was committed to ending sex discrimination, even though it had already settled his case? Probably, yes. But did it do so because of his race? That allegation is quite dubious, and Choudhry’s suit provides essentially no evidence to bolster this claim. Choudhry is a minority, and he is arguably being prosecuted more severely than white university employees accused of similar misdeeds. But that fact can likely be attributed to the high-profile nature of his case—and the prestige of his previous position—rather than racial animus. And absent a scintilla of evidence to the contrary, courts will probably see it that way.
But Choudhry’s other claim, that the university violated his due process rights, is more plausible. In its initial settlement, the administration allowed Choudhry to keep his tenure. The Supreme Court has found that professors at state schools have a constitutional property interest in tenure and that it thus cannot be revoked without due process of law. Now the administration has reopened Choudhry’s case and appears eager to revoke his tenure. Whether the university’s second investigation and punishment comports with due process is a matter for the courts, but Choudhry has hit on a strong claim, one that could keep his case alive for a while. The lesson of this sorry story appears to be a reminder to universities: When it comes to sexual harassment cases, you only get one bite at the apple. Use it more wisely than Berkeley did.