Berkeley High School Student Files Third Appeal in Sexual Harassment Case

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A Berkeley High School student who accused her counselor of sexual harassment is taking her case to the Berkeley Unified School District Board of Education, as her lawyer filed an appeal with the board Sept. 19 following three previous denials of harassment by district officials.

In April, the student accused her high school counselor, Anthony Smith, of sexual harassment in a report to the district. Allegations against Smith by the student include caressing her inner thigh and spanking her as she left his office, according to a July letter from Cliff Wong, the district's interim director of personnel services to the student's lawyer, Stephen Rosenbaum, following the district's evaluation of the case.

The letter stated that Smith "engaged in inappropriate and unprofessional behavior contrary to District policy," though Smith retains his position as a counselor at the high school.

A temporary restraining order against Smith was issued by the Alameda County Superior Court Sept. 2.

Following the district's evaluation and limited action against Smith, Rosenbaum's first appeal asked that Smith be removed from the high school, a request that was denied Sept. 1 by Delia Ruiz, the district's assistant superintendent of human resources. The second appeal - again urging that Smith be removed from any position in contact with students - was denied by district Superintendent Bill Huyett as of Sept. 8.

"Almost as disturbing as the counselor's behavior is the district's response," Rosenbaum said in an e-mail. "The superintendent's letter (addressing the appeal) was terse, uninformed and dismissive."

Huyett would not comment on the case because it is a personnel issue.

Rosenbaum's latest appeal continues to seek Smith's removal from his current position and questions the district's claim that Smith could not be previously removed or transferred due to union constraints.

In the letter from Ruiz to Rosenbaum explaining the denial of the first appeal to the district, Ruiz states that the district decided to retain Smith because it "must comply with the collective bargaining agreement between the district and Berkeley Federation of Teachers (the teachers' union) which includes restrictions on the ability of the district to transfer teachers."

But according to the contract between members of BFT and the district, teachers can be "involuntarily transferred at the discretion of the superintendent" under appropriate circumstances, including when "abuse or danger to students exists."

Cathy Campbell, BFT president, said the superintendent could have invoked this statute and that it was his decision not to do so.

Rosenbaum writes in his latest appeal that "invoking the BUSD-BFT collective bargaining agreement as a shield against possible transfer of a certificated employee for misconduct is a gross misapplication of the union contract and labor-management law."

The appeal also addresses Huyett's claim that the case does not constitute illegal sexual harassment, which is defined by state and federal law as "severe or pervasive." However, Rosenbaum said in the appeal that district policy does not require these standards for sexual harassment.

"There is nothing in BP 4119.11 about either severity or pervasiveness," Rosenbaum stated in the appeal. "Nonetheless, to the extent these are necessary elements of federal or state law, only a disinterested review of the allegations and the credibility finding by the interim personnel services director could lead to such a crabbed interpretation."

A hearing to decide whether the student's temporary restraining order should be extended or removed was scheduled for Sept. 21 but has been postponed to Oct. 19.

But Rosenbaum said in the e-mail that he hopes to "informally resolve" the case by the beginning of October.

In the meantime, the temporary restraining order will remain in effect.


Contact Gabby Fastiggi and Marjon Momand at [email protected]

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