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Former Boalt Hall Dean|Wants Regents Called Off

SAN FRANCISCO (CN) — A federal judge Monday wrestled with whether to prohibit UC-Berkeley from continuing proceedings against former law school dean Sujit Choudhry, who says he's being forced to undergo a second sexual harassment disciplinary proceeding so the school can save face before an outraged public.

In a hearing on Choudhry's motion for a preliminary injunction, U.S. District Judge Richard Seeborg said he wasn't sure the school had violated Choudhry's due process rights, or if he, as a judge, even has the authority to stop the disciplinary process from playing out.

"They haven't acted yet. So why do you say the fix is in?" Seeborg asked Choudhry's attorney.

"We don't know how it is going to come out. One of the things I'm having difficulty with is if I'm not entirely with you that the fix is in, that it's a violation of due process not to have the process play out."

William Taylor, who represents the ousted dean, said UC officials had assured Choudhry after he had been disciplined in 2015 for sexual harassment that his career as dean would remain intact, and that he would not be subject to further discipline.

"Everybody believed it was over," Taylor said.

Choudhry sued the University of California Regents and UC President Janet Napolitano in September. He resigned as dean of the Boalt Hall law school in March this year, allegedly under pressure from Executive Vice Chancellor and Provost Claude Steele, following sexual harassment allegations by his executive assistant Tyann Sorrell.

Sorrell accused Choudhry of inappropriate touching and kissing, and of asking her to get him lunch and coffee. Sorrell later filed her own lawsuit, claiming the university mishandled her complaints against Choudhry.

Choudhry's discipline involved writing Sorrell a letter of apology, a 10 percent pay cut for one year, and sexual harassment training.

Choudhry says Napolitano launched additional disciplinary proceedings after Sorrell went public, and that he's being scapegoated. Though he resigned as dean, Choudhry says, the stigma has been overwhelming, and with a second investigation in the works, he faces threats of being banned from campus and the potential loss of his tenured faculty job.

Taylor said the university is bullying Choudhry with a second investigation, and reneged on its promise to drop the matter so long as Choudhry didn't engage in any further harassing conduct. And, he said, the second investigation is based entirely on the same set of facts.

"No one mentioned a word about tenure or a second investigation until March when the firestorm of criticism occurred and Ms. Sorrell filed her lawsuit. Their rationale for doing this is because they can," Taylor told Seeborg. "He is entitled not to have to go through that process again."

Taylor cited a July 2015 letter from Steele outlining the sanctions against Choudhry, which concluded: "You have a very promising career as Berkeley's Law School Dean with your innovative ideas, high energy, and enthusiastic citizenship, and I trust that you will grow into the kind of leader that we both know you can be."

Taylor accused the school of a bait and switch. "They fooled him by saying, 'If you do these things, then you have a bright career as dean.' Today the university says, 'Even if we told him that, it doesn't matter,' and that's wrong."

Seeborg asked Taylor: "Is shabby treatment a violation of due process? Critical to your case is my conclusion that there was a binding settlement that concluded proceedings. If it's simply that there's been shabby treatment, that almost isn't directly relevant."

Taylor said the letter created an "entitlement" for Choudhry to not have to go through a second round of disciplinary proceedings.

Bradley Phillips, who represents the UC regents and Napolitano, said the letter is not evidence of a settlement.

"It doesn't say, 'If you do this, nothing further will happen,'" Phillips said. "Even if there had been a settlement, it wouldn't form the basis of a preliminary injunction if all he's saying is he's entitled to avoid the proceedings."

In their motion to dismiss, the Regents argued that Seeborg should abstain from the case based on Younger v. Harris, which requires federal courts to abstain from enjoining state judicial proceedings if they feature quasi-criminal characteristics.

Phillips said the Choudhry case fits that criterion.

While Seeborg seemed to agree that the case appeared to be quasi-criminal enough to merit an abstention, he briefly entertained the idea that it could fall under Younger's bias or bad-faith exception.

He asked Phillips: "The plaintiffs sort of suggest that the motivation of the renewed disciplinary proceeding is to get the university good press, and, 'Look, the university is doing something.' Isn't that kind of close to harassing sort of conduct?"

Phillips replied: "No, I don't think so. Even if I accepted that as true, which I don't, that's simply the university doing what it's entitled to do."

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