Costs unknown for Berkeley High School harassment case

Berkeley High School: at center of a sexual harassment case. Photo: Frances Dinkelspiel

By Anika Anand and Emily Hartley
California Watch 

After a Berkeley High School student complained of sexual harassment by her guidance counselor, the Berkeley Unified School District spent $94,000 on lawyers to fight her claim.

Then in February, school officials made a $57,500 insurance payout to settle the girl’s lawsuit, according to court records and interviews.

The financially strapped school district’s spending on the controversial harassment case probably was greater. But for the past year, school district officials have refused to disclose how much they spent on the case, ignoring information requests filed under the state’s Public Records Act by California Watch and by a legal watchdog group, the First Amendment Coalition.

The girl, identified in court records as Lilah R., claimed in 2010 that Berkeley High counselor Anthony Smith had sexually harassed her for much of her junior year. He subjected her to lewd remarks, tried to embrace and caress her, and pulled her out of class to make “unwelcome sexual advances,” she said in a U.S. District Court lawsuit. She claimed that the school ignored her complaints.

When the allegations became public in 2010, they roiled the 3,400-student high school. In letters to the girl’s parents, Superintendent William Huyett said Smith’s behavior was “inappropriate and unprofessional” – but not sexual harassment, court records show. Huyett told the parents that he would take “appropriate personnel action,” but never said what that was, the lawsuit said.

The girl decided to sue when the district refused to remove the counselor from the high school campus, her lawyer, Michael Sorgen, said in a statement.

Smith denied wrongdoing and still works as a counselor at the high school. His lawyer, Mark Davis, said the lawsuit had no merit, but was settled by the district because it was too costly. In May, the state Commission on Teacher Credentialing recommended suspending Smith’s teaching credential for seven days, but the matter is still pending, a spokeswoman said.

As the case began to unfold, the school district hired lawyers. In court, two lawyers from a Pleasant Hill firm represented Berkeley Unified. The district paid that firm about $67,600 for its work on the case, one of the lawyers, James Marzan, said in a telephone interview.

Marzan said the district also covered Smith’s legal expenses, paying $26,300 to Davis’ firm. Marzan said he didn’t know if the district made other payments.

But the girl’s father said a Pleasanton lawyer, Marleen Sacks, also had worked for the district on the case. Sacks declined to comment.

For the past year, Berkeley officials have balked at disclosing how much they spent defending Smith. In July 2011 and again in September, California Watch wrote to the district, citing the Public Records Act and asking for records of the expenditures. The district didn’t respond.

California Watch reporters also telephoned and emailed schools officials seeking the payout information. Those contacted include Huyett; Delia Ruiz, assistant superintendent of human resources; public information officer Mark Coplan; and Jerry Johnson, who until recently was the district’s risk manager.

Most queries were ignored. Sometimes an official promised to look into the matter, but failed to respond to follow-up queries.

In November 2011, the San Rafael-based First Amendment Coalition also made a Public Records Act request for the information. There was no response – just “a total, Kremlin-like institutional silence,” said Executive Director Peter Scheer. That’s very unusual, he said.

State law requires all public agencies to respond to a records request within 10 days, either making the requested information public, providing an estimate of how long it will take to provide information or citing a legal reason for keeping it secret.

“The kindest explanation is that the school district is so disorganized and incompetent that public records requests simply fall through the cracks again and again,” Scheer said. “A less charitable explanation would be that they’ve simply adopted as internal policy a strategy of ignoring legal requests for records.”

In settling the girl’s lawsuit, the school district agreed to form an advisory committee to clarify its sexual harassment policies, records show. Smith agreed to leave his office door and window shades open when he counsels students and to stop pulling students out of class except in emergencies.

School board member Leah Wilson said settling the harassment case was the right thing to do.

“Speaking as a board member and given the legal advice we received, I would say this was the appropriate outcome,” she said. “But I think as a parent, I am not comfortable with the outcome. That would be my honest answer.”

She said she wasn’t aware of the public records requests.

“I’m a little confused as to why people just aren’t responding to you,” Wilson said.

This story was produced by California Watch, part of the Center for Investigative Reporting. Learn more at California WatchCalifornia Watch senior reporter Lance Williams contributed to this report.

Related:
Berkeley High counselor given seven day suspension [05.07.12]
Berkeley School district settles sexual harassment case [01.12.12]
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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  • Rachel Anderson

    I really appreciate Berkeleyside publishing this article.  I find it disheartening and I hope that there is some response as public pressure intensifies.  

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

    “The kindest explanation is that the school district is so disorganized and incompetent that public records requests simply fall through the cracks again and again,” Scheer said. “A less charitable explanation would be that they’ve simply adopted as internal policy a strategy of ignoring legal requests for records.”

    And then there’s door #3:  both of the above.

  • Guest

    He still works there?????

  • Anonymous

    Does anyone know what the implications are for ignoring requests like this? Hopefully they involve warrants and contempt charges.

  • elp

    Berkeley High School is the least transparent organization I have ever dealt with.  None of the behaviors and lack of response surprise me, because in my dealings, as a parent of a student there, it has often been virtually impossible to get answers to questions that affect my child’s education (when it involves the administrators) The school district assigns children to “learning communities” through a lottery that is at best broken, at worst being gamed and an absolute joke, so that the segregation at the the school is almost 100% (look at the accreditation info, the schools aren’t balanced in any way).  If you want to move your child, you are stonewalled.  If you and your child want honors or AP classes, expect to not get results on the placement test for 8 weeks, If you don’t pass the placement test – they know best, you don’t get in and do not question the results, it is an imposition.  The school will not share what passing criteria is, nor will they share what the child missed or succeeded on, they know best and the parents and students do not need to know – do not question.  If you do question expect to send weekly e-mails for 3 to 5 weeks, and then have to copy the principal and possibly the school board to get answer, and then expect to be treated as, first an inconvenience, and then as though you are unable to understand the data being applied.

    I mention the segregation issue, because casual conversation with students in various “learning communities” has led us to the observation that the academic expectations for students are very different between communities.  It is hard to believe that when required readings for freshman vary from 7th grade level in some communities, to college level in others, that the playing field is level and the expectations are the same.  The predominately “white” learning communities seem to expect and demand more from their students then is expected or demanded in the “more diverse” communities.

    There are some really good, caring and responsive people at Berkeley High. Unfortunately the ones who obfuscate and avoid, taint the rest.

  • PragmaticProgressive

    You have to sue and a judge will give an order to disclose. Refusing that would trigger penalties. You can get attorney’s fees paid for if you prevail.

  • The Sharkey

    BHS’s administration needs to be gutted and rebuilt from the bottom up with new employees.

    The current clandestine cabal harboring dangerous child predators ought to be the last straw.

  • Anonymous

    That’s what I feared. So the district defends themselves at our cost and, at best, you’d get reimbursed at our cost. This is all so broken it makes me sick.

  • Anonymous

    Billy Keys would still be working there too if he hadn’t been arrested. Probably the only way to get fired is to followup on enrollment fraud or call the police when a student is mugged.

  • squeeky wheel

    Berkeley’s “Head in the Sand” Mentality puts our children AT RISK! By asking the counselor to 
    keep his door open and shades open is an admission of GUILT!! Parents should be protesting and refusing to allow their children to have this man as their counselor: IT IS THAT SIMPLE!! But let’s just put our head in the sand, vote in more Propositions to pay for schools, waste the money on incompetence and say that our children Graduated from BHS!! What an honor?!!!!???? Shame on the Board of Ed and all those who continue to support this counselor…..

  • Rafael Pontecorbo

    They actually paid more money BEFORE the lawsuit was filed to the firm of Atkinson, Andelson, Loya, Rudd & Romo

  • Guest

     Why would ANY counselor need to have a closed door and drawn shades when interacting with a BHS student?

  • PragmaticProgressive

    Meanwhile, there’ve been 6 (!) board meetings since they decided to start the Superintendent search all over again, but there’ve been no updates to the superintendent search page since that decision was announced.  

  • Ji Monay

    elp,

    Your post describes exactly our experience at BHS. 

    The ‘diversity’ of grade level reading and math expectations between learning communities sentences hundreds of BHS grads to a life imprisoned in little or no opportunity.

    When will we stop throwing our kid’s futures away by allowing them to graduate as near illiterates in the name of now abandoned fads in education?

  • PragmaticProgressive

    Looking at recent agendas, the board is spending a lot of time in private session with attornies discussing pending litigation.

  • cl3

    Financial records should be maintained online, disclosed automatically and continuously. I can’t imagine any reason to keep city/state/education spending confidential.

    Officials who don’t comply with the law can’t be allowed to keep their jobs. It’s interesting there does not appear to be any way to force compliance, other than by filing an independently funded lawsuit. Misbehavior by government officials is frequent (still thinking about Chief Meehan), and there are NEVER any consequences. Yet the slightest misbehavior by a citizen, such as parking a few minutes over the limit, is severely punished.

    The district’s behavior seems to suggest that there was some merit to the student’s complaint. If Smith’s behavior was “inappropriate and unprofessional,” why does he still have a job? Here’s another example of there not being consequences. What’s it going to take? Someone setting themselves on fire? A riot?

  • another BUSD parent

    Well, that’s depressing. All that $, and this predator is still working at BHS. The HS girls i know are well aware of this guy, and call him ‘creepo’ and ‘the perv’ and efforts are generally made by parents to get their daughters to another counselor, or go to a private counselor instead. How nice if BHS would man up and fire him. But that would make sense….

  • bgal4

     That is not enough either.

  • bgal4

     It should be pointed out that BEFORE this complaint against Smith when I was involved at BHS Safety committee compliance matters I asked Slemp’s administration that very question regarding Smith, I knew of previous complaints.

  • Anon

    And, most likely, they are stalling until the union decides whether candidates Brezhnev or Andropov are going to be more in the tank for them and do even less for the parents, community and (least of all) the actual students…

  • Sarazi

    I’m a little concerned about why Berkeleyside choose to include the girl’s first name and last initial in this article.  Hopefully you have a policy about protecting the privacy of sexual assault victims, especially ones who are underage, and if so I’d like to understand how this situation complied with that policy.  I don’t think the fact that this information was in the court documents is a good reason to include it in the article. 

  • bgal4

     Lilah R is a pseudo-name, no worries.

  • Anonymous

    I meant if somebody inside BUSD followed up or called the police instead of ignoring it. Thanks to your work I think many people already know that complaints from parents will, at best, be ignored.

  • berkopinionator

    There is no room in a public school that should have complete privacy, except a bathroom stall.  Schools need actual transparency, ie. windows should always remain free of visual obstructions.  Staff should be prohibited from completely papering over their windows to prevent people from looking into a classroom or a school office.  Even a principal’s office should be visually transparent. Why create a physical environment conducive to staff misconduct?  BUSD should should have a zero tolerance policy on sexual harassment of students by staff. This guy, and every other staff member found to have harassed a student, should be dismissed. 

  • Mark Coplan

     

    From Javetta Cleveland, BUSD Deputy Superintendent:
    In
    an article published by ‘California Watch’ on Wednesday, July 25, 2012,
    entitled “Costs unknown for Berkeley High School harassment case”,
    there were some statements which were not accurate.  The Berkeley Unified School District (BUSD) would
    like a set the record straight.  First,
    while two Public Record Act requests were sent directly to the District in
    September and November 2011, at that time, the District was involved in
    on-going litigation in the subject lawsuit. 
    Pursuant to California Government Code Section 6254(b), “Records
    pertaining to pending litigation to which the public agency is a party” do not
    need to be disclosed “until the pending litigation or claim has been finally
    adjudicated or otherwise settled.”  The
    settlement was not finalized until June 2012.

    Second,
    BUSD did, in fact, have direct communications with the reporter, Anika Anand. 
    After
    the lawsuit resolved in its entirety, the District’s counsel, James Marzan of
    Edrington, Schirmer & Murphy, was contacted by Ms. Anand, and was informed
    for the first time that Public Record Act requests had been sent to the
    District which were outstanding.  Mr.
    Marzan asked Ms. Anand to forward the requests directly to him.  Upon receipt, Mr. Marzan, in conjunction with
    the District, took immediate action and obtained the information requested.  That information was e-mailed to Ms. Anand and
    was included in Wednesday’s article.  It
    was the District’s understanding that counsel’s e-mail satisfied the
    requirements of both Public Record Act requests.

  • Goodkind

    Berkeleyside – can you prevail upon the reporters of the original story to respond to this?
    Can you also investigate how much the BUSD has spent on legal fees *since the day that Anthony Smith was escorted from the building in April 2010* after “Lilah R” finally reporting his fondling,stroking and nuzzling her and repeatedly pulling her out of class? Focusing simply on the results of the final legal case is misleading. Is it true that the district paid for his original legal costs and continued to pay his legal fees? If so, why? If it is true that the district keeps spending our parcel tax monies on legal fees for district employees this will not bode well for the next parcel tax proposition, since citizens of Berkeley are under the impression that our EDUCATION TAX MONIES  are supposed to be spent on EDUCATION.

  • Chrisjuricich

    Things certainly don’t look good for this counselor at BHS who has been tarred as a ‘creepo’, ‘perv’, and ‘predator’. From the scope of the conventional wisdom, in the court of public opinion the counselor in question has been found guilty. Internally, the BHS organization has found his behavior ‘inappropriate and unprofessional’ but so far, other than a seven day suspension, purportedly, and a request that he keep his door open and shades open (jarring enough that this is considered necessary), he hasn’t been convicted of any crime.

    I’m not trying to be an advocate for this fellow, other than I’m concerned at times when this frontier justice found in Berkeley so often presumes guilt before any ‘official’ decree.

    Presumably the student who was wronged or her parents could pursue redress through BUSD itself (which seems to have gone nowhere) or through civil litigation, right? Or maybe they would be satisfied just having him terminated from his position.

    I just found myself a bit unnerved at the public court that has tarred nd feathered this guy. Again. Just trying to understand things here. I admit my knee jerk reaction to the event reflected many others’ thoughts here, but I guess I can understand parents’ frustration if there is a counselor under a cloud whose behavior has been deemed inappropriate and unprofessional and the administrative organization surrounding him and responsible seems to be stonewalling.