Claims Over UC Berkeley Assault Probes on Thin Ice

     OAKLAND, Calif. (CN) — A federal judge reluctantly dismissed with leave to amend two civil cases against the University of California, Berkeley, that claimed the institution failed to do enough under Title IX to address two separate instances of sexual assault.
     U.S. District Judge William Orrick conceded that UC Berkeley “bungled its response” to the two sexual assaults in questions, but said the ineptitude did not rise to the standard of deliberate indifference needed to make a case for money damages under Title IX.
     “The deliberate indifference standard under Davis protects school administrations that do investigate and remedy complaints, and judges are not permitted to substitute their views for those of not clearly unreasonable administrators,” Orrick wrote in a 28-page ruling issued July 28.
     Instances of sexual assault on college campuses and whether they are treated seriously enough has vaulted to the national spotlight, prompting the Obama administration to carry out reforms that have sparked fierce debate on both sides of the issue.
     The present dispute stemmed from an instance of sexual assault suffered by Sophie Karasek, who was groped while asleep by a male classmate during a weekend trip to San Diego with the Cal Berkeley Democrats Club in 2012.
     The unidentified male student resigned from the club.
     Karasek claims the university treated the matter with deliberate indifference, failing to tell her that a written complaint was necessary to prompt an investigation — a fact she found out by accident. Cal Berkeley then took more than eight months to respond to Karasek after the complaint was filed, at which time the perpetrator was scheduled to graduate.
     Meanwhile, the university placed the perpetrator on disciplinary probation while requiring him to enter mental health classes and drug and alcohol counseling — a fact that was not disclosed to Karasek.
     Karasek claims that the university’s lack of communication, decision to go through informal disciplinary proceedings rather than a formal hearing and refusal to remove her assailant from the campus resulted in psychological harm and adversely affected her studies, forcing her to take part in a less rigorous major and causing her GPA to drop.
     While Orrick chastised the university over its communication deficiencies regarding Karasek’s case, the judge said that because the student was disciplined meant the facts as presented did not rise to the level of deliberate indifference as required by the legal standard.
     “The university’s failure to communicate with plaintiffs in a meaningful way prior to making its disciplinary decisions is a glaring deficiency in the university’s process,” Orrick said in the ruling.
     The other plaintiff in the case, Nicoletta Commins, was sexually assaulted by a male assailant who performed oral sex and digitally penetrated the plaintiff without consent at her apartment on Jan. 20, 2012.
     About 10 days later, the university placed the assailant on interim suspension. The following month, the university decided to allow the assailant to continue with his class schedule provided that he left the campus immediately after his classes ended.
     In October of the same year, the assailant was convicted of felony assault for the attack on Commins and was sentenced to five years probation. Months later, the university suspended the assailant until August 2015, when Commins was supposed to graduate, placed him on disciplinary probation for the entirety of his remaining time at the university and assigned him a reflective writing assignment.
     Commins said at the time that she felt the punishment was insufficient, particularly given that she was remaining on the Berkeley campus to pursue graduate studies. She also accused the university of relying on informal disciplinary processes and not allowing her the opportunity to present evidence against her assailant, and failing to communicate the status and progress of the disciplinary process.
     As in the former case, Orrick agreed that these facts were troubling, but did not meet the required legal standard since the university did institute procedures during and after the criminal case.
     “I also understand Commins’ dissatisfaction with the university’s failure to immediately issue a no-contact order when it placed John Doe 2 on interim suspension, and with the university’s ultimate decision to allow John Doe 2 to recommence his studies,” Orrick wrote in the ruling. “That decision — to not expel John Doe 2 despite his felony conviction for his sexual assault of Commins — is highly debatable to say the least. Given the facts alleged, I certainly would have decided the issue differently.”
     However, whether the decision was appropriate is not the legal question which Orrick was tasked with deciding, he said.
     “In light of the steps the university did take to remedy the violation, I am not allowed to substitute my opinion for that of the university,” he said.
     Orrick gave Commins and Karasek an opportunity to amend their respective complaints.
     The initial complaint included another plaintiff, Aryle Butler, who was groped repeatedly when on assignment at UC Berkeley’s Wrangle Mountain Center in Alaska in 2012. Butler, who was serving as an assistant to PhD candidate Margot Higgins, was approached by an unnamed assailant multiple times while at the center.
     After reporting each incident to Higgins, she was advised to keep it quiet and did so until she finally got back to campus and reported the assaults to authorities at the university. The authorities never followed up on her allegations, instead asking Butler if she ever rebuffed the assailant and then lecturing her on the false reporting of sexual assaults, according to the complaint.
     Orrick allowed Butler’s claims under Title IX to proceed in a ruling issued in December 2015.
     The issue of sexual assault has increased in profile after a series of protests arguing that colleges are not doing enough to prevent sexual assault and to punish offenders.
     As a result, the Department of Justice sent its 2011 “Dear Colleague Letter” to colleges, stipulating that all U.S. Department of Education colleges must take immediate steps to investigate sexual violence and bring about effective remedies to stop the violence.
     The department also said universities must do so in order to comply with Title IX, a 1972 law that explicitly prohibits gender discrimination in the education system. The letter and the reforms it has produced has been controversial, with some claiming the courts are better able to prosecute sexual assaults, while others say universities need to do more to protect women from all forms of sexual violence.
     Cal Berkeley has been rocked by a spate of recent sex scandals. Along with the suit involving three women who make clear the university administration lacked communication, promptness and empathy when processing their complaints, it was revealed that a pervasive cultural of sexual harassment has existed at the university.
     Allegations of sexual harassment involving a renowned astronomy professor, a basketball coach, a vice chancellor and the dean of the university law school proved to be the tip of the iceberg, as a Mercury News investigation revealed as many as 19 employees of the university had violated the sexual harassment policy since 2011.
     A phone call to Irwin Zalkin, attorney for the plaintiffs, was not returned by press time.

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