Berkeley school district settles sexual harassment case

The settled case centers on a Berkeley High counselor accused of sexually harassing a 16-year-old female student in the 2009-2010 academic year

The Berkeley School Board last night voted to approve a settlement in a federal sexual harassment lawsuit against the Berkeley Unified School District, which includes compensation of $57,500 and conditions imposed on Anthony Smith, the Berkeley High counselor at the center of the case. BUSD has also committed to revising its training and policies on sexual harassment as part of the settlement. BUSD denies any liability in this case.

Lilah R. (the fictitious name under which she sued) was a 16-year-old junior at Berkeley High in the 2009-2010 school year when she, she said, she was subjected to persistent and pervasive conduct of a sexual nature by Smith, her academic counselor.

Lilah R. reported that Smith caressed her inner thigh and made unwelcome comments, such as he wanted to “share feelings” with her, asked her if she slept naked, and asked to work out together. Although Smith denied the charges in Lilah R.’s complaint, an initial BUSD investigation found that Lilah R. was the more credible witness and that Smith’s conduct was “inappropriate and unprofessional.” Lilah R. sued after BUSD rejected the family’s suggestion to remove Smith from the high school campus.

Lilah R., who is now 18, said: “Students should feel safe when they go to school. I’m happy the school district is making changes that should help other girls like me.”

The district will update its Student Handbook to include specific contact information for students who wish to report sexual harassment. The Berkeley High PTSA will be asked to convey to parents the resources available to them and their child should a complaint arise. And an advisory committee of parents and District staff will meet to clarify BUSD’s sexual harassment policy and its procedural timeline.

Commenting on the settlement announcement, BUSD Superintendent Bill Huyett said: “Our district is always proactive in seeking ways to enhance the educational experience of our students and their families. We welcome input from all our community as we work together in that effort.”

The settlement states that in future, when he counsels students, Smith will be required to keep his office door open and blinds up, except under certain limited circumstances, and will be barred from pulling students out of class without an administrator’s permission.

Lilah R.’s mother said in a statement: “We’ve always been big supporters of the Berkeley public schools and are hopeful that with this settlement the school district will recommit itself to working hard to provide a safe environment for all our children.”

Related:
Berkeley High harassment case close to settling [12.08.11]
Berkeley High harassment case heading to settlement [07.21.11]
BHS sexual harassment case taken to federal court [04.22.11]
Government to assess Berkeley High harassment case [12.07.10]
BHS harassment case settles, leaves open questions [10.29.10]
BUSD decision appealed in BHS harassment case [09.21.10]
Restraining order served on Berkeley High counselor [09.16.10]

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  • berkopinionator

    The counselor should have been fired immediately.  He should still be fired now. The alleged conduct is 100% totally intolerable for a school district employee.  

  • Meliflaw

    Yeah, since Lilah R’s statements were thought believable and Smith’s conduct was deemed “inappropriate and unprofessional,” what’s the point of keep him at BHS? Presumably there are other equally good counselors around who know enough to not make passes at students.

  • Bruce Love

    This quoted paragraph lists a subset of the allegations made against Smith.  It juxtaposes against that list an out of context  quote about Lila R.’s credibility.

    Earlier reports indicated that BUSD could not find the full list of the allegations to be true but that on some, the student was credible.  No earlier report indicated which allegations were found credible.   Does Berkeleyside have a source for the claim that BUSD found these specific allegations, listed today, more credible than Smith’s denial?   If not, this seems extremely unfair to Smith, as you can see from some of the other comments.

    Lilah R. reported that Smith caressed her inner thigh and made unwelcome comments, such as he wanted to “share feelings” with her, asked her if she slept naked, and asked to work out together. Although
    Smith denied the charges in Lilah R.’s complaint, an initial BUSD investigation found that Lilah R. was the more credible witness and that Smith’s conduct was “inappropriate and unprofessional.” Lilah R. sued after BUSD rejected the family’s suggestion to remove Smith from the high school campus.

    BUSD has been consistent in claiming that while Smith may have erred, his actions did not rise to the level of sexual harassment.   It has been consistent that it did not accept all of the allegations as true.   No court has found otherwise.    Last we heard from Berkeleyside, this settlement, now agreed to by both parties, does not concede that sexual harassment took place.

  • Anonymous

    the money spent on settlement and court costs would have paid a teacher for a year…what a waste!!!

  • Anonymous

    or better yet paid for metal detectors

  • Bruce Love

    And a defense at trial, even if successful, could easily have cost more.

  • Chris23

    Read the complaint. -Any- of the allegations, on their own, should have been sufficient unprofessional conduct for a school employee tO be dismissed. Even being telling a non-credible story should have been enough.

    Trying to split legal and logical hairs, as the comment I’m replying to does and BUSD apparently did, is a disservice to the students & the community that funds the schools.

  • Bruce Love

    This isn’t about splitting hairs.   This is black and white.    I see nothing at all in the public record — other than the plaintiff’s allegations — to suggest Smith sexually harassed this young woman at all.   The tone of this article and that problematic paragraph I pointed out may suggest otherwise but that’s no reason why Smith should be fired.

  • bhsparent

    He has a few hundred girls assigned to him, my daughter being one. She states many she knows reluctant to go to this man for counseling. It is unfair that he gets to keep his position despite the discomfort of the students. Even if he doesn’t make “a move”  the girls wonder what he is thinking and would very unlikely go to him for issues which cause distress or if in need of empathy and support. Reassignment seems the way to go since he apparently cannot be fired.

  • Meliflaw

    “since he apparently cannot be fired.”

    Ah, yes. When my daughter was at BHS, her world history teacher seemed close to ga-ga at times. He had good days (taught some history) and bad days: explained his family tree to the class, reminisced yet again about the time he met Dr. King, showed videos that had only the remotest relation to the lesson plan. He was a nice old guy, but clearly past his best, or even adequate, teaching days.

  • Chris23

    Though you “see nothing”, you’ve apparently overlooked the _BUSD_ investigation report that the article & I quoted from. My statement only depends on that. Berkeley School District itself made those findings, which should have been enough for dismissal. Outside the employee-coddling-at-any-cost environment environment of BUSD, they would have.

  • TinyG

    You’re splitting hairs by demanding a finding of sexual harassment. Why isn’t ‘inappropriate and unprofessional’ enough to remove somebody from student contact?

  • berkopinionator

    If there are future cases involving the same employee they will cost even more.  The logic is simple: If you pay out on a sexual harassment case, the normal and appropriate defensive policy is to terminate the employee responsible for the sexual harassment. This is especially true when the harasser is working with adolescents in a public school

    This article has a little more background.

    http://californiawatch.org/dailyreport/student-lawsuit-berkeley-schools-ignored-sexual-harassment-9969

    It is wrong for the BUSD to continue employing an employee if they find that allegations of sexual harassment of a minor student are substantiated.

    Why should we have to worry about having other girls getting their thighs stroked and butts slapped by a  district employee? What message are we sending here?

  • http://berkeley.accountableschools.com/ Berkeley Accountable Schools

    This is a really important observation.  This man’s job _requires_ trust and he is no longer capable of providing that.  He should not be employed at BUSD.

  • Bruce Love

    Because, although negative, that description (“inappropriate …”)  encompasses circumstances in which removing somebody from student contact wouldn’t be justified.

  • Bruce Love

    It is wrong for the BUSD to continue employing an employee if they find that allegations of sexual harassment of a minor student are substantiated

    BUSD has explicitly said that it does not so find.

  • Anonymous

    I do not know what happened in the case involving Leah R.   This post is not intended to defend Anthony Smith’s actions.  

    However, my experience over the last six years as an active parent at BHS is that Smith is an excellent counselor and genuinely cares about students.  I have personally witnessed Mr. Smith doing excellent work with the football team (not an easy task).  In addition, he has helped my daughter–who does feel comfortable in his presence—and has always been responsive to my family’s needs during a recent family illness.  I am glad he is still at BHS.  

    By the way, BHS needs tutors in a variety of areas.  Also, the BHS Development Group could use your financial donations.  Don’t complain–get involved.  

  • Anonymous

    Why do you promote this negative view of BHS?  What is your basis for suggesting it needs metal detectors?  Have you been there?  Do you know anything?  BHS is an amazing place and the staff and educators are trying hard to do the right thing.  

  • Anonymous

    Maybe people should judge him based on their own experiences a bit more.  Why are these young women concerned?  Is there more than the Leah R case?  If not, maybe they should cautiously give him a chance. There are worse educators at BHS than Anthony Smith.

  • http://berkeley.accountableschools.com/ Berkeley Accountable Schools

    I appreciate and understand your boosterism.  However, I think it’s misplaced here:  BHS Development Group wants to raise $200K to support programs at the high school.  This one employee just cost the same school $60K and, as someone pointed out above, is an ongoing liability because still employed.  That is not an example of the kind of good governance I look for when making charitable contributions.

  • http://berkeley.accountableschools.com/ Berkeley Accountable Schools

    The very first “significant point” about the job of high school counselor, according to the BLS occupational outlook profile says:

    “People interested in counseling should have a strong desire to help others and should be able to inspire respect, trust, and confidence.”

    You’d have to acknowledge that Smith’s ability to inspire respect, trust, and confidence is seriously limited after the “persistent and pervasive conduct” Lilah R. reported.  Maybe you’re willing to look past that, but not everyone feels that way.  

    It may interest you and others to know that the National Board for Certified Counselors has a published Code of Ethics, at least three parts of which seem to have been transgressed by Smith. A fourth part of that Code stipulates that “Certified counselors have an obligation to withdraw from the practice of counseling if they violate the Code of Ethics”

    I don’t know if Smith is a Certified Counselor or not, but I certainly think that asking adolescent girls to extend trust where the national standards of the profession do not is asking too much.

    And I categorically reject the “there are worse educators argument.”

  • http://berkeley.accountableschools.com/ Berkeley Accountable Schools

    PS California’s Association of School Counselors has an ethics code of its own, part of which requires that counselors “Understand that professional distance with students is appropri- ate, and any sexual or romantic relationship with students whether illegal in the state of practice is considered a grievous breach of ethics and is prohibited regardless of a student’s age.”

  • libraterian

    While someone mentioned “employee coddling”, this smacks more of union muscle. Which, if any, union represents Smith? And if he does belong to one; How did they influence this outcome?

  • Rafael Pontecorbo

    Dear Bruce Love,

    You are the ultimate defender of BUSD. You parse sentences so well–just like
    Supt Huyett and his minions of lawyers. (He has had 2 law firms
    representing BUSD on this case and seems he paid for Smith’s lawyers as well). Methinks you are on BUSD payroll. You do their bidding so well. And now you have Lucky Pablo to help “balance” the defense team.

  • Bruce Love

    You imply that you have knowledge of Smith’s actions beyond what the public record reveals.  Either that or you are simply misinterpreting the public record.

  • Anonymous

    Any comments by Bruce Love, AKA Thomas Lord should be taken with many grains of salt. His MO is to take the opposite side of the majority of opinion on practically any issue discussed here on Berkeleyside. He then proceeds to spin a long drawn-out case for whatever position he is trying to defend.  His arguments are like spiders webs for the uninitiated who may take issue with one of his propositions. Lured in to argue the improbability or fallaciousness of his arguments, he springs on his prey, weaving around them even more far out webs of logically possible but usually improbable arguments usually wearing them out until they turn away from their keyboards in disgust.  He then enjoys the fruits of his labors and waits for the next controversy to arise so he can spin again.

    For example, Bruce Lord should know that “no admission” of guilt is a common condition of civil legal settlements and in no way actually reflects the truth of whether the underlying act that resulted in the litigation occurred or not.  That is the way that legal settlements work and our spider knows it but chooses to ignore that reality in service to his game.  That BUSD never recognized that an act of harassment ever occurred is also a standard stance taken by defendants in legal cases. They stand to loose a lot more than $57k if they admit they know that such an act occurred.  So, of course, they never admit that they knew of wrongdoing…that would ultimately lead to a much larger financial impact on the district.  The BUSD lawyers have earned their keep in this case.

    A plea to fellow Berkeleyside readers: don’t engage the spider unless you want to bang your head against your computer monitor for ever thinking you could have a reasoned debate with our resident pundit.

  • Bruce Love

    I don’t think your personal attacks are appropriate or that they help your case against Smith.

  • berkopinionator

    Paying $57,500 is an acknowledgment of misconduct.  The fact that a Judge issued a restraining order  is also evidence.  I haven’t heard the counselor deny the allegations, have you?

  • Anonymous

    I don’t have a case against Smith, but I think it is fallacious of you to equate his guilt or innocence with the standard legal settlement language that includes “no admission of guilt and/or liability”.  A quick Google search will show that this is standard language in legal settlements.  And, the fact that BUSD does not admit to acknowledging any wrongdoing is equally weak for an argument as to guilt or innocence of the subject of the charge and settlement.  
    As for a personal attack, I feel I am simply putting out my observations for how you participate on this forum. I feel I am as entitled as the next person to use metaphors to record those observations. I don’t feel that it is an attack, but my observations, followed by an example.

  • Bruce Love

    Taking these in reverse order:

    To answer your question, yes: Smith  denied the allegations.  That was the point of the school system hearing.   At the school system hearing he was admonished for some of his conduct but the overall complaint of sexual harassment was rejected.  (School system hearings of this sort are juridical proceedings and are generally reviewable by a normal court, if either side wants to press the matter.)

    Plaintiffs obtained a temporary restraining order in a process at which the defendant is not represented.  At the hearing for an extended restraining order, at which the student declined to testify, the court ordered the parties to negotiate instead.  http://archive.dailycal.org/printable.php?id=110848

    Paying any amount in settlement is not in and of itself acknowledgement of misconduct.  Disputed and even sometimes clearly bogus suits get “paid to go away” all the time, especially when they can be settled for an amount plausibly much smaller than the cost of litigating a successful defense.  In this case the district has a fiduciary responsibility to the taxpayer that has to be considered.

  • Bruce Love

    On Smith: My point has been that, in spite of the press coverage, Smith was found innocent of sexual harassment in the one and only juridical proceeding that ran to completion, and calls for his head are unsupported by anything in the public record.  The guy is being defamed left and right in these comments on the basis of rumors and innuendos founded entirely in the plaintiff’s complaints that, in their main substance, have only ever been rejected at hearing.

    As for personal attacks:  I am not the topic of this article.   You went out of your way to defame me and to discourage others from even discussing the actual topic with me.   You do this from behind a cowardly veil of anonymity while rehearsing the open secret of my identity as if it were a gotcha.   You do this in the course of defending unsubstantiated defamations against Anthony Smith.   I think it is wrong of you to do those things.  I think it is a personal attack.

  • http://radar.oreilly.com/2007/09/local-recycle-reuse-hits-a-bur.html The Sharkey

    Far from being a personal attack, BerkeleyCitizen’s post is a very accurate summary of who you are here on Berkeleyside and how you post.

    If you don’t like what you’re reading, perhaps you need to change the way you post.

  • guest

    Can’t believe this guy is actually keeping his job and was not fired long ago. 

  • Guest

    “We will delete or censor any comment that:…contains ad-hominem attacks” (from the site rules). 
    These comments contain ad hominem attacks.  Why are they still online?

  • libraterian

    Whatever the reason Brother Love persists in his self-acknowledged multiple identity / “open secret” posting charade, one has to wonder what the editor of the other Berkeley-cenrtic web publication he contributes to (under his real name) thinks of all this. She’s always seemed far too savvy and forthright to endorse this kind of silliness.

  • Goodkind

    Our family has followed this story for a long time. The allegations are completely credible and BUSD found the girl to be the more credible witness when Smith denied the allegations and when they reviewed the situation, such as the fact that in a year when the pupil to counselor ratio in Smith’s part of BHS (the AC program) was about 750:1, there were numbers complaints that Smith failed to return phone calls or emails, and there were such a high number of encounters between Smith and the girl. 

    *** The root of the problem here is the BFT contract. *** It provides no way to fire someone who is found guilty of sexual harassment. This is a basic flaw in the contract. Saying he could be involuntarily transferred is a ridiculous option…transferred to what? where? This is what the Catholic church did with the pedophile priests, transfer them. Besides, they failed to transfer him because he denied the allegations. As of now, a child who charges anything like this doesn’t have a chance. NOT A CHANCE. This is wrong.Whatever else happens, all parents in the district should insist to all school board members that the new contract allow for firing of a counselor found guilty of sexual harassment or any other sexual crime against a child. Anything less is immoral. The district’s hands were tied in this situation and we have to insist that BFT change that part of the contract. Demand it of your school board members, your Superintendent, and of Cathy Campbell and BFT. 

  • Goodkind

    Our family has followed this story for a long time. The allegations are completely credible and BUSD found the girl to be the more credible witness when Smith denied the allegations and when they reviewed the situation, such as the fact that in a year when the pupil to counselor ratio in Smith’s part of BHS (the AC program) was about 750:1, there were numbers complaints that Smith failed to return phone calls or emails, and there were such a high number of encounters between Smith and the girl. 

    *** The root of the problem here is the BFT contract. *** It provides no way to fire someone who is found guilty of sexual harassment. This is a basic flaw in the contract. Saying he could be involuntarily transferred is a ridiculous option…transferred to what? where? This is what the Catholic church did with the pedophile priests, transfer them. Besides, they failed to transfer him because he denied the allegations. As of now, a child who charges anything like this doesn’t have a chance. NOT A CHANCE. This is wrong.Whatever else happens, all parents in the district should insist to all school board members that the new contract allow for firing of a counselor found guilty of sexual harassment or any other sexual crime against a child. Anything less is immoral. The district’s hands were tied in this situation and we have to insist that BFT change that part of the contract. Demand it of your school board members, your Superintendent, and of Cathy Campbell and BFT. 

  • libraterian

    Your call for action is greatly appreciated, and it will be remembered come school board elections and union contract negotiations. BHS parents email the board:

    http://www.berkeleyschools.net/contact-us/

  • Bruce Love

    By all means, go ahead and ask her (especially before putting words in her mouth).

    Just as a friendly reminder: This post is about a sexual harassment lawsuit brought against BUSD.   I noticed that many of the comments, defamatory of Smith, presumed facts not found in the public record and, in part, rejected at the only full hearing of this case.   I pointed that out, apparently drawing the latest round of personal attacks against me.

    You see, part of my thinking was that it was a no brainer that the comments weren’t really for committing liable, launching anonymous personal attacks, and things of that sort.  I stand corrected.

  • Bruce Love

    You don’t seem to understand that Smith was found innocent of sexual harassment.

    Also the union contract does not provide such protection against dismissal.   Rather, it ensures that an employee facing a disciplinary dismissal (or disciplinary involuntary transfer) has a right of defense at an adjudicated preceding.  Generally speaking, labor seeks a right to a hearing in such matters partly so that they can’t be dismissed or transferred around as political pawns.

  • Charles_Siegel

    Let me make a partial defense of Bruce Love:

    Initially, I thought he was just a contrarian, and I was very annoyed that he simply took the opposite position from everyone else. 

    After reading many, many of his comments, I realized that he does have a consistent set of beliefs and is not just a contrarian.  I am much less annoyed by his posts now that I realize they are his sincere beliefs, and he is not just arguing for the sake of arguing.

    His ideas were more common decades ago than they are now.  One aspect of of them is defending the underdog and defending behavior that is generally considered deviant – eg, defending criminals or those accused of crime, defending minority groups, defending medical marijuana, defending the homeless. 

    I often disagree with his ideas, but I don’t think it correct to say that he is a contrarian just takes “the opposite side of the majority of opinion.”

  • Monika

    Wow I’m not surprised. When my daughter went to BHS he was her counselor. He hit on me when I went in to talk about her and he mentioned several times how “beautiful my daughter was though it had no relevance to my concerns about her. My daughter always said she felt uncomfortable around him and she and her female peers called him the “perve” all agreeing that he seemed to express attraction towards them. In addition one of my daughters female teachers told her to watch her self in his office and keep the door open! This confirmed to my child that she was not the even a female teacher sensed his energy. Because I had no proof of anything I never felt it was appropriate to say anything. I’m glad this young lady had the guts to tell!

  • libraterian

    And you don’t understand the difference between a negotiated settlement producing sanctions, monetary penalties based on facts which warranted them – and the narrow scope of it’s public presentation – “innocent of sexual harassment”. 

  • libraterian

    re: “By all means, go ahead and ask her (especially before putting words in her mouth).”

    Posting it here is asking her…I’m sure Becky reads Bside. 

  • Bruce Love

    Not all that closely, I’m told.

  • Guest

    Well, she doesn’t really need to read Bside very closely when she has Tom monitoring the site for her.

    http://www.berkeleydailyplanet.com/issue/2011-03-16/article/37514?headline=Should-the-Berkeley-Police-Department-Use-Facebook—By-Thomas-Lord

  • http://radar.oreilly.com/2007/09/local-recycle-reuse-hits-a-bur.html The Sharkey

    Why did you post this as “Guest” Mrs. O’Malley?

    Seems like an odd thing to do for someone who decries the use of anonymous profiles online.