Over the Line Even in Berkeley, Family Says

SAN FRANCISCO (CN) - A high school student says a school counselor sexually pawed and harassed her, spanking her, hugging her, asking to meet outside of school, asking "Oh, you don't sleep naked?" - harassing her so persistently that her parents had to seek a restraining order against him - but the Berkeley Unified School District told her "that the conduct was not in fact sexual harassment, as it was neither 'severe' nor 'pervasive.'"

The student and her mother beg to differ. They sued the school district, Berkeley High School counselor Anthony Smith, and Berkeley U.S.D. Superintendent William Huyett in Federal Court. They seek damages for sexual battery, negligence, sex discrimination and civil rights violations.

The 13-page complaint from the student, Lilah, and her mother, Elena, describe behavior from Smith that can only be described as stalking: "The constant monitoring of her throughout the day, almost always accompanied by suggestive comments of a sexual nature and/or physical touching, was offensive and unwelcome."

In a written statement made under penalty of perjury, and in "a series of emails" to the vice principal, Lilah claimed, inter alia, that Smith "'spanked' her buttocks"; asked her "'Maybe we can be in contact outside of school [during the summer] so I can share some feelings with you,'"; "asked her what she wore to bed. 'Oh, you don't sleep naked?' he responded."; "'He always hugged me good-bye and ... would put his face in my chest and/or rub my back.' He constantly talked about her hair and told her she was 'so beautiful.' ... He '[a]lways sized me up, rarely looked at my face.'"

Lilah claims Smith obnoxious, "intimidating, hostile and offensive" action "included following Lilah throughout the school day, standing outside her classroom or summoning her out of classes and making unwelcome and sexual comments and physical contact."

Lilah and her mom say they believe Smith was put on administrative leave, during which Lilah was subjected to a 3-hour interview with the school district's law firm. They say the district's interim personnel director summarized the investigation by concluding that Lilah was "the more credible witness" and that Smith had "engaged in inappropriate and unprofessional behavior contrary to district policy."

But the district's letter "does not state anything about Smith's further contract with Lilah in terms of personal conduct or staying away from her. It simply states, without specification, that 'the district will be taking appropriate personnel action' against him," according to the complaint.

For the next school year, Lilah's parents got a temporary restraining order the Alameda County Superior Court, "requiring Smith to stay 100 yards away from Lilah and to have no communication with her," the family says. They say they appealed the district's "investigative finding" to Superintendent Huyett, and to the Board of Education, but the district refused to transfer or remove Smith from his counseling job.

"Following an appeal to the superintendent, defendant Huyett informed Lilah's parents in a letter of Sept. 8, 2010 that the conduct was not in fact sexual harassment, as it was neither 'severe' nor 'pervasive,'" the complaint states.

On Nov. 3, 2010, Huyett wrote the plaintiffs a short letter, saying that the Board of Education "has considered your appeal and has decided to uphold my decision."

Lilah and her mom seek an injunction, costs, and treble damages. They are represented by Michael Sorgen.

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