Student’s sexual harassment suit charges California school district ignored school counselor’s “stalking” behavior

A Berkeley High School (BHS) student alleges that a school counselor sexually pawed and harassed her, spanked her, hugged her, asked to meet outside of school, asked “Oh, you don’t sleep naked,” and harassed her so persistently that her parents had to seek a restraining order against him, says Courthouse News Service. The student’s lawsuit claims that, despite the counselor’s conduct, Berkeley Unified School District (BUSD) told her “the conduct was not in fact sexual harassment, as it was neither ‘severe’ nor ‘pervasive.'” The student, Lilah R. and her mother, Elena A., have filed suit in federal court against  BHS counselor Anthony Smith, and BUSD Superintendent William Huyett, seeking damages for sexual battery, negligence, sex discrimination and civil rights violations.

The suit describes Smith’s behavior as “stalking” in which he engaged in “constant monitoring of her throughout the day, almost always accompanied by suggestive comments of a sexual nature and/or physical touching, [and] was offensive and unwelcome.” Lilah and her mother say they believe Smith was put on administrative leave, during which Lilah was subjected to a 3-hour interview with the school district’s law firm.

They claim BUSD’s interim personnel director summarized the investigation by concluding that Lilah was “the more credible witness” and that Smith had “engaged in inappropriate and unprofessional behavior contrary to district policy.” The district’s letter, however, “does not state anything about Smith’s further contract with Lilah in terms of personal conduct or staying away from her. It simply states, without specification, that ‘the district will be taking appropriate personnel action’ against him,” according to the complaint.

Lilah’s parents subsequently obtained  a temporary restraining order from the Alameda County Superior Court, “requiring Smith to stay 100 yards away from Lilah and to have no communication with her,” the family says. They say they appealed the district’s “investigative finding” to Superintendent Huyett, and to the school board, but the district refused to transfer or remove Smith from his counseling job. The suit is seeking an injunction, costs, and treble damages.

Source: Courthouse News Service, 4/20/11, By Staff

[Editor’s Note: The legal complaint, available at the first link below, alleged causes of action under Title IX, Section 1983, the state civil rights act, and state tort theories. In December 2010, Education Week reported on a federal Government Accountability Office (GAO) study that found schools in some cases have hired individuals with histories of sexual misconduct as teachers, coaches, janitors, and administrators, partly because of lax systems of background checks. The GAO documented 15 cases in which individuals guilty of past misconduct were hired or retained by schools. In 11 of those cases, the individuals in question had previously targeted children, and in six of them, the offenders used their new positions to abuse more children. A summary of the article is available at the  second link below.]

Legal complaint

NSBA Legal Clips archive on GAO study

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