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On sexual misconduct cases, UC Berkeley and Harvard are 2 sides of the same coin

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APRIL 03, 2017

Joanna Ong and Alyssa Leader both hold degrees from premier American universities — UC Berkeley and Harvard University, respectively. They are also both suing their alma maters for mishandling cases of sexual misconduct.

UC Berkeley is often regarded as the flagship institution for public higher education, while Harvard is commonly considered the leading private university. Ong and Leader are each fighting to remedy mistreatment they allegedly received from their institutions after they reported sexual harassment incidents. Though they occurred on opposite coasts, the two cases both allege administrative inaction.

Despite its classification as a private institution, Harvard, like UC Berkeley, receives significant federal funding, making it accountable to federal legislation protecting its students and employees from discriminatory practices. The schools also share several separate ongoing investigations and lawsuits alleging insufficient handling of sexual misconduct cases.

“Two hundred or so institutions are under investigation for indifference to sexual misconduct — all too often the response to complaints,” alleged Irwin Zalkin, whose firm represents Leader in her suit against Harvard.

Recent allegations

Thirty-one UC Berkeley students and alumni filed two federal complaints against the campus in February 2014 for allegedly insufficiently handling sexual misconduct cases. Two months later, the U.S. Department of Education Office of Civil Rights, or OCR, launched an investigation into Harvard’s alleged failures to properly handle sexual violence on its campus in a potential violation of Title IX, a federal law prohibiting discrimination on the basis of sex at any educational institution receiving federal funding.

OCR could not be reached for comment as of press time.

In February, the University of California released 113 Title IX investigation reports as a result of a California Public Records Act request. Because Harvard is a private institution, however, the results of investigations cannot be disclosed through a similar request.

“UC Berkeley is the gold standard of failing to comply with their obligations under Title IX and knowingly permitting sexually hostile work environments.”

— John Kristensen, lawyer representing Joanna Ong

Across the UC system, 124 total investigations into sexual misconduct allegations against UC employees occurred between 2013 and 2016, among them 20 cases at UC Berkeley alone. Multiple high-profile UC Berkeley faculty — including former UC Berkeley School of Law dean Sujit Choudhry and former astronomy professor Geoffrey Marcywere accused of sexual misconduct within the past two years. This month, Ong filed a complaint against professor emeritus John Searle, a world-renowned philosopher.

“UC Berkeley is the gold standard of failing to comply with their obligations under Title IX and knowingly permitting sexually hostile work environments,” alleged John Kristensen, the lawyer representing Ong.

Ong accused Searle of sexual assault and harassment while she was his research assistant. In the complaint, Ong alleges that although she reported her harassment to superiors, no action was taken to address the assault. She alleges that Searle’s colleagues actively worked to cover up his sexual misconduct and cut Ong’s pay by 50 percent.

In February 2016, Leader filed a lawsuit alleging that her former partner, also a Harvard student, sexually harassed and assaulted her. She alleged that the university forced her to continue living in the same residence hall as her attacker after she repeatedly reported the misconduct from 2013 to 2015.

Leader has said she was motivated to take legal action against the university after hearing similar stories from other women.

Harvard also found itself in the national spotlight last fall after members of its Division I athletic teams, including men’s soccer and men’s cross country, made sexually explicit comments, as first reported by the Harvard Crimson. In response, the university administration canceled the men’s soccer season and put members of the cross country team on academic probation.

A Harvard spokesperson declined to comment on the university’s sexual misconduct cases.

Federal funding and law

In the 2016-17 academic year, UC Berkeley enrolled 29,310 undergraduate students, while Harvard enrolled 6,700. UC Berkeley students received $200 million in federal financial aid, in addition to $400 million in federal funding for the campus’s research enterprise in the 2015-16 fiscal year.

Harvard received a comparable $597 million in federal funding in 2016 — approximately 71 percent of total sponsored revenue and about 13 percent of its $4.7 billion operating budget — according to the 2016 Harvard Financial Report.

With the aid of federal funding, both universities must comply with federal law, including the two central policies pertaining to sexual misconduct — the Clery Act and Title IX.

The Clery Act was signed into law in 1990 after Jeanne Clery, then a 19-year-old undergraduate student at Lehigh University in Pennsylvania, was raped and murdered in her residence hall in 1986. After her death, Clery’s parents lobbied for the establishment of federal standards in the way campuses disclose crime rates. The act now requires universities benefitting from federal financial aid programs, such as UC Berkeley and Harvard, to report campus crime statistics and security information, which is then publicly available through the U.S. Department of Education’s website.

The site includes a tool to compare institutions side by side. According to the data provided, UC Berkeley reported that a total of 18 rapes occurred in 2015, while Harvard reported 36. But below the provided information is a critical disclaimer explaining that the Department of Education cannot confirm the data’s accuracy.

“The crime data reported by the institutions have not been subjected to independent verification by the U.S. Department of Education,” the website said. “Therefore, the Department cannot vouch for the accuracy of the data reported here.”

During the spring semester of 2015, the Association of American Universities conducted a national survey titled Campus Climate Survey on Sexual Assault and Sexual Misconduct. Results of the survey revealed that 11.7 percent of student respondents across 27 universities had experienced unwanted sexual contact by force since they enrolled at their university.

The Harvard Task Force on the Prevention of Sexual Assault responded to the survey results with a 13-page letter sent to Harvard President Drew Faust. It stated that sexual assault is “a serious and widespread problem that profoundly violates the values and undermines the educational goals of this University.”

In early 2013, UC Berkeley launched a similar online survey as part of a universitywide initiative. Survey results revealed that 4 percent of respondents — about 500 individuals — said they had experienced nonconsensual sexual contact while at UC Berkeley within the past five years.

Reporting process

In addition to contacting outside law enforcement, a complainant at Harvard can go to the Office of Sexual and Gender-Based Dispute Resolution, or ODR, which can then open an investigation in conjunction with the Administrative Board to seek disciplinary action against the respondent.

In January 2016, the University of California implemented systemwide procedures, including a standardized two-team response model at each UC campus. The model includes a case-management team to review reports and a second team to address policies, community relations, prevention and intervention.

The framework is meant to work in tandem with confidential care advocacy offices already in place on campuses, according to UC Title IX Coordinator Kathleen Salvaty.

Amelia Goldberg, a member of the Harvard campus advocacy group Our Harvard Can Do Better, alleged that the group has heard testimonies that the campus’s Administrative Board does not always take sufficient action on sexual misconduct reports. In one case, a student was put on academic probation, meaning they stayed at Harvard and could still graduate with their class.

“We advocate that Harvard implement a policy like that at Yale, whereby they release anonymized data on how many cases are heard by the Ad Board and what sanctions are implemented in each case,” Goldberg said in an email. “This would allow us to hold Harvard accountable, and also ideally increase student trust in the administration, which is dismally low on this issue.”

The Clery Act requires universities to provide campus statistics by Oct. 1 of each year on crimes such as sexual assault, domestic violence and stalking. The act does not include an annual inspection of campuses’ compliance with their own sexual misconduct policies, according to Abigail Boyer, associate executive director of programs at the Clery Center.

The U.S. Department of Education analyzes whether an institution’s policy complies with federal law and whether this compliance is effectively enforced through a process known as program reviews. The website states that reviews can be initiated after several events, such as when a complaint is received and when a media event raises concerns.

Boyer said if a campus is found to be out of compliance with the Clery Act, it is fined $35,000 per violation.

In 2016, Pennsylvania State University was fined $2.4 million for 11 violations of noncompliance with campus safety reporting — the biggest fine a university has received since the law was approved more than 25 years ago. The five-year investigation into Penn State was prompted by the highly publicized 2011 arrest of assistant football coach Jerry Sandusky on charges of child sexual abuse stretching over a decade.

“This issue has been very highly publicized — they are under investigations. This seems to be a wakeup call. (They’re) taking it more seriously than they were 10 years ago.”

— Irwin Zalkin, attorney for Alyssa Leader in her suit against Harvard

Neither Harvard nor UC Berkeley has undergone a program review. Active program reviews, however, are not known to the public — only once the review is completed is the information shared by the Department of Education, according to Boyer.

‘Taking it more seriously’

In April 2011, a Dear Colleague Letter — a letter sent by a member of a federal office to colleagues advocating support for or sponsorship of an issue — was published by the Department of Education Office of Civil Rights urging that Title IX subregulatory guidance pertaining to sexual harassment be expanded to sexual violence, including rape. The letter acted as guidelines for future legislation, according to Boyer.

Zalkin said the letter details the standards required with receiving Title IX funding. He added that these standards should be followed by both the UC Board of Regents and private universities.

“The problem is that these universities, UCs among them, have not been following these procedures,” Zalkin said. “They don’t take these claims seriously. But this issue has been very highly publicized — they are under investigations. This seems to be a wakeup call. (They’re) taking it more seriously than they were 10 years ago.”

In 2013, Section 304 of the Violence Against Women Act amended the Clery Act, expanding its reach to include statistics on sexual assault, domestic violence, dating violence and stalking requirements, among others.

The University of California hired its first systemwide Title IX coordinator this past year. The decision was part of an effort to make campuses’ responses to and resources to address sexual misconduct incidents consistent among all 10 UC campuses, according to Salvaty, who took the job after working as UCLA’s Title IX coordinator.

“Nobody is trying to be anything but transparent — to make this process as easy to engage in as possible,” Salvaty said.

Audrey McNamara is the lead higher education reporter. Contact her at [email protected] and follow her on Twitter at @McNamaraAud.

APRIL 03, 2017