Briefing for Deans and Briefing for Deans and ChairsChairs

January 30, 2003January 30, 2003

The Case of the Amorous The Case of the Amorous DeanDean

What happened?What happened?• On Wednesday, November 27, 2002, the day before On Wednesday, November 27, 2002, the day before

Thanksgiving, John P. Dwyer, Dean of UC Berkeley’s Boalt Thanksgiving, John P. Dwyer, Dean of UC Berkeley’s Boalt Hall, one of the nation’s top law schools, announced his Hall, one of the nation’s top law schools, announced his resignation from both the deanship and his tenured faculty resignation from both the deanship and his tenured faculty position in a memorandum to faculty, staff, and students.position in a memorandum to faculty, staff, and students.

• In the memo, Dwyer claims that he “had a single encounter In the memo, Dwyer claims that he “had a single encounter two years ago that was consensual, but there is no two years ago that was consensual, but there is no allegation that any form of sexual intercourse occurred.” He allegation that any form of sexual intercourse occurred.” He has not spoken publicly since the resignation.has not spoken publicly since the resignation.

• The student’s lawyer, reached by the press while The student’s lawyer, reached by the press while vacationing in Europe, reportedly said that the student was vacationing in Europe, reportedly said that the student was sexually assaulted.sexually assaulted.

The student’s account of a The student’s account of a December, 2000 encounterDecember, 2000 encounter

The student went out for dinner and drinks with a group of The student went out for dinner and drinks with a group of other students. They were joined by the dean at the other students. They were joined by the dean at the restaurant.restaurant.

After that gathering broke up, five students and the dean went After that gathering broke up, five students and the dean went to a bar for more drinking.to a bar for more drinking.

As the second gathering broke up, the dean offered the student As the second gathering broke up, the dean offered the student a ride to her nearby Oakland apartment, which she accepted. a ride to her nearby Oakland apartment, which she accepted. She passed out when she got home at around 2:00 a.m.She passed out when she got home at around 2:00 a.m.

She awoke at 4:37 a.m. to find the dean “fully dressed, in her She awoke at 4:37 a.m. to find the dean “fully dressed, in her bed, fondling her genitals with his hand and lying with his head bed, fondling her genitals with his hand and lying with his head near her breasts.” near her breasts.”

Dwyer got up and left when she woke up. The student passed Dwyer got up and left when she woke up. The student passed out again. When she woke up the second time at 8:00 a.m., out again. When she woke up the second time at 8:00 a.m., “she found a bruise on her left breast. She called her mother, “she found a bruise on her left breast. She called her mother, told her about the incident, and then the mother came over to told her about the incident, and then the mother came over to take a picture of the bruise.”take a picture of the bruise.”

As reported in the LA Times, attributed to the student’s attorney

What would happen at What would happen at UCLA?UCLA?

In a press release, Berkeley states that the student In a press release, Berkeley states that the student “spoke with three members of the law faculty…in “spoke with three members of the law faculty…in the semester following the December 2000 the semester following the December 2000 incident.”incident.”

According to Berkeley: “Later, on May 23, [2002], According to Berkeley: “Later, on May 23, [2002], days before she graduated, she visited the days before she graduated, she visited the campus’s Title IX officer and requested information campus’s Title IX officer and requested information on sexual harassment policies and procedures. on sexual harassment policies and procedures. She declined to give her full name, but explained She declined to give her full name, but explained what had occurred in December 2000 and said it what had occurred in December 2000 and said it involved a dean at the university.” involved a dean at the university.”

On October 11, 2002 the student filed a formal On October 11, 2002 the student filed a formal complaint with the Title IX Officer.complaint with the Title IX Officer.

What should Professor Krieger What should Professor Krieger do?do?

Professor Linda Krieger, identified by the Professor Linda Krieger, identified by the LA Times as “a specialist in discrimination LA Times as “a specialist in discrimination law” knew the student well and law” knew the student well and “considered her one of the brightest.”“considered her one of the brightest.”

Seven months before the resignation, the Seven months before the resignation, the student “confided [to Krieger] that she had student “confided [to Krieger] that she had been sexually assaulted 16 months earlier been sexually assaulted 16 months earlier by the dean of the school.”by the dean of the school.”

Krieger found the student to be credible.Krieger found the student to be credible. Krieger states: “It was horrible.”Krieger states: “It was horrible.”

As reported in the LA Times, attributed to Krieger

What Krieger didWhat Krieger did

Krieger advised the student to report Krieger advised the student to report the incident to the Title IX Officer.the incident to the Title IX Officer.

Krieger called the Title IX Officer, Krieger called the Title IX Officer, paving the way for the student, but paving the way for the student, but did not disclose the identity of either did not disclose the identity of either the student or the dean, leaving that the student or the dean, leaving that to the student to decide.to the student to decide.

As reported in the LA Times, attributed to Krieger

Should the campus delay?Should the campus delay? According to Krieger, “the student did not pursue the According to Krieger, “the student did not pursue the

matter over the summer because she was studying for matter over the summer because she was studying for the bar exam.”the bar exam.”

Krieger states that she realized that “if I kept the Krieger states that she realized that “if I kept the information to myself, and the alleged perpetrator information to myself, and the alleged perpetrator harmed someone else, that it would have very, very harmed someone else, that it would have very, very negative consequences, not only for the subsequent negative consequences, not only for the subsequent victim, but also for the organization and possibly even victim, but also for the organization and possibly even for me personally.”for me personally.”

Krieger asserts that she tried to find guidance but Krieger asserts that she tried to find guidance but “there was none to be had...[n]ot even the university’s “there was none to be had...[n]ot even the university’s general counsel could help her.”general counsel could help her.”

Krieger states that she eventually decided to notify the Krieger states that she eventually decided to notify the university, “but before she could, the student filed a university, “but before she could, the student filed a formal complaint.”formal complaint.”

As reported in the LA Times and attributed to Krieger

What should Professor Swift What should Professor Swift do?do?

Professor Eleanor Swift, a former associate dean at the Boalt Hall law school Professor Eleanor Swift, a former associate dean at the Boalt Hall law school states that the student, who “was upset, angry and scared,” sought her advice states that the student, who “was upset, angry and scared,” sought her advice in the spring of 2001, several months after the student claimed to have been in the spring of 2001, several months after the student claimed to have been molested by Dwyer.molested by Dwyer.

Swift said “she counseled the student at length on ways to pursue a sexual Swift said “she counseled the student at length on ways to pursue a sexual harassment complaint against [the] Dean…[and] described several formal and harassment complaint against [the] Dean…[and] described several formal and informal steps that the student could take.”informal steps that the student could take.”

““I sought to give her some comfort. I kept her statements confidential, which is I sought to give her some comfort. I kept her statements confidential, which is what she wanted.”what she wanted.”

Swift described a second meeting with the student at which Swift said she Swift described a second meeting with the student at which Swift said she described the university’s sexual harassment complaint procedures, and described the university’s sexual harassment complaint procedures, and outlined less formal approaches “that might produce an acknowledgement outlined less formal approaches “that might produce an acknowledgement from the dean and some form of remedy, plus assurance that this would not from the dean and some form of remedy, plus assurance that this would not happen to other women students.”happen to other women students.”

Swift says that she offered to speak to the dean herself, to ask a male faculty Swift says that she offered to speak to the dean herself, to ask a male faculty member to do so, or to accompany the student to speak with others.member to do so, or to accompany the student to speak with others.

Ultimately, “the student decided not to pursue the matter while she was Ultimately, “the student decided not to pursue the matter while she was enrolled at the school.” The student told Swift that “she wanted to be able to enrolled at the school.” The student told Swift that “she wanted to be able to finish law school and concentrate on her…work.”finish law school and concentrate on her…work.”

As reported in the LA Times, attributed to Swift

What should the Title IX officer What should the Title IX officer do?do?

The student first contacted the Title IX officer on May 23, 2002, The student first contacted the Title IX officer on May 23, 2002, days before she graduated…and requested information on days before she graduated…and requested information on sexual harassment policies and procedures. She declined to sexual harassment policies and procedures. She declined to give her full name, but explained what had occurred in give her full name, but explained what had occurred in December 2000 and said it involved a dean at the university.” December 2000 and said it involved a dean at the university.”

She was told that under campus policy when someone is She was told that under campus policy when someone is accused by name of sexual harassment, the Title IX office is accused by name of sexual harassment, the Title IX office is obligated to launch a formal investigation. She declined at that obligated to launch a formal investigation. She declined at that time to name the individual. She chose not to file a complaint.time to name the individual. She chose not to file a complaint.

In response to the student’s expressed concerns about In response to the student’s expressed concerns about retaliation, the Title IX Officer told the student that the campus retaliation, the Title IX Officer told the student that the campus has strong policies against retaliation and described the steps has strong policies against retaliation and described the steps the student could take if she believed she was retaliated the student could take if she believed she was retaliated against.against.

The student was given in writing the Berkeley policy and The student was given in writing the Berkeley policy and complaint procedure and was informed of the rights of the complaint procedure and was informed of the rights of the accused under the Faculty Code of Conduct.accused under the Faculty Code of Conduct.

As reported by Berkeley in a press release

The student’s version The student’s version The student states that the Title IX Officer The student states that the Title IX Officer

did not know which procedures applied in did not know which procedures applied in connection with a complaint against the connection with a complaint against the dean, and she could not assure the student dean, and she could not assure the student that her identity would remain confidential that her identity would remain confidential or that she would be protected from or that she would be protected from retaliation if she lodged a formal retaliation if she lodged a formal complaint.complaint.

The student states that the professors The student states that the professors expressed doubt about their expressed doubt about their responsibilities and concern about possible responsibilities and concern about possible retaliation if they became involved.retaliation if they became involved.

As reported in the LA Times, attributed to the student’s attorney

Were there any warning Were there any warning signs?signs?

He had a reputation for dating female students far He had a reputation for dating female students far younger and less powerful than he.younger and less powerful than he.

His estranged brother says that Dwyer “would boast His estranged brother says that Dwyer “would boast about having sex with students.”about having sex with students.”

Even after he became dean, students joked about Even after he became dean, students joked about his alleged flirtations and dalliances.his alleged flirtations and dalliances.

He was dubbed by some as the “Bill Clinton of Boalt He was dubbed by some as the “Bill Clinton of Boalt Hall.”Hall.”

He began dating his third wife (from whom he is now He began dating his third wife (from whom he is now divorced) when she was a third year law student.divorced) when she was a third year law student.

Heavy drinking is often the norm at law school Heavy drinking is often the norm at law school functions.functions.

As reported by the LA Times, sometimes without attribution

Does the student have a Does the student have a good case?good case?

Under Title IX, a university is liable only if it Under Title IX, a university is liable only if it is deliberately indifferent to sexual is deliberately indifferent to sexual harassment of which it is actually aware.harassment of which it is actually aware.

Was the student “sexually harassed”?Was the student “sexually harassed”? Did the university “actually know”?Did the university “actually know”? Was the university “deliberately Was the university “deliberately

indifferent”?indifferent”? What if, as Swift feared, another student What if, as Swift feared, another student

was molested after the report to Swift?was molested after the report to Swift?

What if she had been an What if she had been an employee instead of a student?employee instead of a student? Employers are strictly liable for harassment Employers are strictly liable for harassment

by supervisors. They are liable for other by supervisors. They are liable for other harassment about which they “knew or harassment about which they “knew or should have know.”should have know.”

Should the university have known?Should the university have known? Would Dwyer face personal liability?Would Dwyer face personal liability? Would Krieger or Swift?Would Krieger or Swift? What if another employee was molested What if another employee was molested

after the report to Swift?after the report to Swift?

UCLA’s DefinitionUCLA’s Definition

Sexual harassment is any Sexual harassment is any unwelcome sexual advances, unwelcome sexual advances, requests for sexual favors and requests for sexual favors and other verbal or physical conduct of other verbal or physical conduct of a sexual nature when:a sexual nature when:

Quid Pro QuoQuid Pro Quo

Submission to the conduct is made Submission to the conduct is made either explicitly or implicitly a term or either explicitly or implicitly a term or condition of instruction, employment, or condition of instruction, employment, or participation in other University activity,participation in other University activity,

Submission to or rejection of such Submission to or rejection of such conduct by an individual is used as a conduct by an individual is used as a basis for evaluation in making academic basis for evaluation in making academic or personnel decisions, oror personnel decisions, or

You gotthe

part!

Hostile EnvironmentHostile Environment

Such conduct has the purpose or Such conduct has the purpose or effect of unreasonably effect of unreasonably interfering with an individual’s interfering with an individual’s performance or creating an performance or creating an intimidating, hostile, or intimidating, hostile, or offensive University offensive University environment.environment.

Necessary ShowingsNecessary Showings

The conduct must be severe or The conduct must be severe or pervasivepervasive

““Mere offensive utterances” do not Mere offensive utterances” do not constitute sexual harassment.constitute sexual harassment.

Courts look at all of the circumstances to Courts look at all of the circumstances to determine whether a reasonable person determine whether a reasonable person would consider the conduct to be severe would consider the conduct to be severe or pervasive from the victim’s viewpoint.or pervasive from the victim’s viewpoint.

Frequency and severity are balanced.Frequency and severity are balanced.

Social ContextSocial Context

Determining whether a reasonable person would consider behavior to be severe requires “careful consideration of the social context in which the particular behavior occurs and is experienced by its target.”

“The real social impact of workplace behavior often depends on a constellation of surrounding circumstance, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”

Oncale v. Sundowner Offshore ServicesOncale v. Sundowner Offshore Services

ExampleExample

Is a football player’s environment Is a football player’s environment severely or pervasively abusive if the severely or pervasively abusive if the coach smacks him on the buttocks as coach smacks him on the buttocks as he heads onto the field?he heads onto the field?

Would the same behavior reasonably Would the same behavior reasonably be experienced as abusive by the be experienced as abusive by the coach’s secretary back at the officecoach’s secretary back at the office

 

Personal LiabilityPersonal Liability

The University will defend an employee against any claim or The University will defend an employee against any claim or action arising out of an act or omission occurring within the action arising out of an act or omission occurring within the scope of employment.scope of employment.

The University will also pay any judgment or any The University will also pay any judgment or any compromise or settlement of the claim or action to which compromise or settlement of the claim or action to which the University has agreed, again assuming the claim or the University has agreed, again assuming the claim or action arises out of an act or omission occurring within the action arises out of an act or omission occurring within the scope of employment.scope of employment.

As to punitive damages, the University is not obligated to As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines that pay but may do so if the Board of Regents determines that the act or omission was within the course and scope of the act or omission was within the course and scope of employment, that the employee acted in good faith, without employment, that the employee acted in good faith, without actual malice and in the apparent best interests of the actual malice and in the apparent best interests of the University and that payment would be in the best interests University and that payment would be in the best interests of the University.of the University.

Note: Sexual harassment is not deemed to occur within the Note: Sexual harassment is not deemed to occur within the scope of employment.scope of employment.

Personal LiabilityPersonal Liability The University will defend an employee against any The University will defend an employee against any

claim arising within the scope of employment.claim arising within the scope of employment. The University will also pay any judgment or settlement The University will also pay any judgment or settlement

of the claim to which the University has agreed, again of the claim to which the University has agreed, again assuming the claim arises within the scope of assuming the claim arises within the scope of employment.employment.

As to punitive damages, the University is not obligated As to punitive damages, the University is not obligated to pay but may do so if the Board of Regents determines to pay but may do so if the Board of Regents determines that:that: the claim arose within scope of employment, the claim arose within scope of employment, the employee acted in good faith, without actual malice and in the employee acted in good faith, without actual malice and in

the apparent best interests of the University, and the apparent best interests of the University, and payment would be in the best interests of the University.payment would be in the best interests of the University.

Note: Sexual harassment is NOT deemed to occur within Note: Sexual harassment is NOT deemed to occur within the scope of employment.the scope of employment.