Opinion: When is sexual misconduct ‘severe’ or ‘pervasive’ enough for UC?

In one department, numerous graduate students have filed complaints against a fellow student. But UC officials have not seen those as evidence of “pervasive” sexual harassment.

UC Berkeley has a problem with patterns.

Despite the University of California’s repeated (and repeated and repeated and repeated and repeated and repeated and repeated and repeated) reassurances that it does not tolerate sexual harassment or assault, it fails to fulfill that promise because its policies are structured to address discrete incidents in isolation from each other, not to recognize patterns.

When I made a Title IX complaint with the Office of Prevention of Harassment and Discrimination (OPHD) at Cal in October 2017, I assumed that Berkeley would be a vocal participant in the incipient #MeToo conversation.  Instead, I discovered a Title IX process deeply unprepared and even unwilling to deal with serial harassment and assault

The University of California’s sexual violence and harassment (SVSH) policy, as reissued in 2016, defines sexual harassment as “unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal, nonverbal or physical conduct of a sexual nature.”  To justly demarcate harassment from bumbling advances, the policy goes on to qualify that these unwelcome overtures constitute harassment under two situations: when the recipient of the advances reasonably fears professional repercussions for refusing them or when the conduct is so “severe or pervasive” that it inhibits or interferes with the recipient(s)’s learning opportunities.  These qualifications are why sexual violence or harassment at school or work is considered discrimination on the basis of sex.

When I filed a report with OPHD in October 2017, I thought that the word “pervasive” would be key to freeing the women of our department from the fear of running into a fellow graduate student who reportedly harassed younger female colleagues at social events, tried to manipulate women against each other, disparaged a female undergraduate (after sleeping with her) to her graduate student instructor, and worse. By joining my voice with other pending reports at the Title IX office about the same person, I hoped that I could help demonstrate the pervasiveness of that person’s predatory behavior.

Instead, the words “severe” and “pervasive” were used to undercut our individual experiences in order to absolve the university and our department from having to deal with this person’s pattern of toxic behaviors.

In January 2018, after nearly three months of preliminary assessment, OPHD informed me that they would not conduct an investigation but rather pursue an alternative resolution process.  That is, they determined that my report was not untrue, but that what I experienced was not “severe” or “pervasive” enough to be harassment.

As we learned from a recent report from the federal Office of Civil Rights (OCR), which found Cal in violation of Title IX on several counts, the university tends to push reports of sexual harassment or assault into alternative resolution processes, often “such as mediation or re-education.”  This process falls short of disciplinary proceedings and fails to address serial misconduct.  The OCR notes “four matters, where students alleged unwelcome sexual conduct and/or comments by faculty member respondents [and] OPHD was on notice of previous complaints concerning the same faculty members but went forward a second (third or fourth) time with an alternative resolution process.”  In at least two of those cases, OCR found that, “the OPHD files did not document that the University followed-up with the graduate students to determine if the second use of an alternative resolution process was effective at stopping the alleged sexually harassing conduct.”

Likewise, I already knew that another colleague had been dismissed with alternative resolution process before me.  So when I was informed that OPHD would be conducting another one on my behalf, I asked them what they would do about the pattern of harassment committed by the respondent against multiple women.  I was told that the respondent’s name would be in a database for a few years. Not long thereafter, a third woman who had reported the same person was told after an investigation that what she experienced was not “severe” or “pervasive” enough to constitute a violation of the Student Code of Conduct.  In total, at least four people reporting the same person for harassment or assault have been dismissed by OPHD into alternative resolution processes.

I do not know what this database does if it does not help OPHD to recognize severe and pervasive behavior.

Two years ago, Erin Bennett had the same words weaponized against her by OPHD.  She was one of at least seven students who filed complaints against Professor Blake Wentworth from the South and Southeast Asian Studies (SSEAS) department.  The Guardian reported in April 2016 that OPHD determined that “Wentworth’s actions [toward Bennett] ‘were not sufficiently severe or pervasive’ to constitute sexual harassment.”  And according to tenured SSEAS faculty, she was not alone: six out of seven complaints were initially dismissed by OPHD.

The case concluded a year later.  The Privileges and Tenure Committee in the Academic Senate ultimately found Wentworth responsible for harassing four graduate students. Not one, four. Wentworth was dismissed by former Chancellor Nicholas Dirks in May 2017.

How was Bennett’s experience not part of a pervasive problem?  Why was OPHD so reluctant to see a pattern and do something about it?

Consider also the case of Eva Hagberg Fisher, a graduate student formerly in the architecture department, who recently settled with the university over its alleged indifference toward OPHD’s findings that Professor Nezar AlSayyad had harassed her.  In a statement after the settlement, the university made yet another empty show of support: “The University acknowledges and appreciates the efforts of Ms. Fisher, and other brave complainants in the UC community, who have come forward with complaints of sexual harassment, and brought this issue to light.”

But her case was not the first to bring this issue to light.  The San Francisco Chronicle revealed that AlSayyad had been the subject of a complaint of sexual misconduct in the early 1990s, which was withdrawn “under duress from the university.”  A Curbed article quotes a former graduate student instructor (GSI) at Cal saying, “It’s widely known and accepted that Eva wasn’t the only one.”  At least one colleague of AlSayyad corroborated that his behavior was an “open secret.”

Similarly, Buzzfeed exposed years of alleged of sexual harassment against philosophy professor emeritus John Searle in Spring 2017 and astronomy professor Geoff Marcy in October 2015.  The allegations against Searle include reports passed on to OPHD since 2004. All were apparently dismissed until Joanna Ong, a former student and employee, filed a lawsuit in March 2017.  Likewise, an attempt was made as early as 2005 to register concern about Geoff Marcy’s behavior, but both then-department chair Don Backer and the university declined to pursue the pattern.  Jessica Kirkpatrick, a former graduate student in astrophysics told Buzzfeed, “He’s had a long history of behaving inappropriately, especially with undergraduates”—another open secret, pushed to the breaking point only when the wider community of academic astronomy started to speak out.

The University of California, Berkeley, will continue to fail its survivors of sexual violence and harassment as long as it treats each case in rigid isolation.  By compartmentalizing each report of sexual misconduct, even when each alleges the same perpetrator, OPHD only accomplishes the following:

  1. It enables the institution to dismiss individual allegations in order to undercut and consequently avoid the overarching pattern.  Whether indicative of deliberate concealment or of simple incompetence, this policy leaves student survivors to bear the brunt of a reality the university chooses to ignore, and it enables perpetrators of serial assault or harassment to repeat their behavior.  As Chancellor Carol Christ wrote just a few months ago, “Preventing SVSH [sexual violence and sexual harassment] involves changing social norms. It requires making the community aware of what is and what is not acceptable.”  If OPHD is unable to see patterns across reports from different individuals regarding the same person, the university makes clear that preying on new victims is an acceptable form of sexual violence or harassment.
  2. It ignores the very real secondary impacts on the communities to which complainants and respondents belong.  Incidents of sexual violence or harassment may occur primarily between two people, but they do not occur in a vacuum.  When multiple members of a community are victimized, even more so if by the same person, the hostility demonstrated toward each person compounds. The collective trauma poisons spaces devoted to academic or professional growth.  The university’s understanding of the word “pervasive” distorts social reality in order to absolve the university of as much responsibility as possible.

The institutionally-enshrined inability to deal with patterns of misbehavior is why the University of California (and Stanford and Harvard and Yale and Columbia and Northwestern and Michigan State) continues to be rocked by periodic scandals almost every other year.  As long as the institution fails to think critically and holistically about sexual violence and harassment, students and journalists will do that work for them.  A university that teaches critical thinking should not be shocked when its students apply those skills.

For the above reasons I ask you, Chancellor Christ and President Napolitano, to reform the University of California SVSH policy once again—this time, transparently and with a recognition of the university’s disappointing history—in order to explicitly empower OPHD and/or the Center for Student Conduct and the Vice Provost of Faculty to recognize and to address patterns of sexually abusive behavior at this university.

In addition to the demands brought by the UC Student Workers’ Union (UAW Local 2865), I further ask for the following:

  • The SVSH policy ought to address serial misconduct explicitly: perhaps by including a definition of “sexual predation” in parallel with sexual harassment or assault or perhaps by adding that prior substantiated reports of sexual misconduct can be cause for regarding later violations as aggravated, e.g. more egregious.
  • Verbal coercion should be recognized by the SVSH policy as a tactic used in sexual assault.  Coerced consent after all is not voluntary consent.
  • I call on the faculty to take up this issue.   You, faculty, are the stable core of the university, and you have the power to make a sustained push for real reform.  Reform is in your best interests, too. Not only will it help your students, but it can even ensure more equitable work in your department.
  • I ask for a public apology for the Erin Bennetts of the Cal community—those individuals left bruised or broken when tossed aside by a system that tried to avoid the problem they sought to bring to light.

It is unacceptable for the University of California to remain unmoved as the world around it realizes the scope of serial sexual abuse in our schools and workplaces.

Deborah Wood is a PhD student in the history department at UC Berkeley, a member of UAW 2865, and an advocate for survivors of sexual harassment/violence.

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