A Berkeley High School counselor was suspended by the state for seven days following allegations of sexual misconduct with a former student, as announced in a notice to the student on May 4.
The California Commission on Teaching Credentialing issued the suspension notice to Berkeley High counselor Anthony Smith following a temporary restraining order and out-of-court settlement and a federal lawsuit filed against the Berkeley Unified School District for failing to respond in a way the student deemed appropriate.
Smith’s suspension will go into effect on June 3, according to Anne Padilla, a media spokesperson for the commission.
The court proceedings are part of a litigation battle concerning claims made by a former Berkeley High student stating that “she was subjected to serious, persistent and pervasive conduct of a sexual nature by Smith, her academic counselor,” over a period of four months, according to a press release issued by the student’s attorney, Stephen Rosenbaum.
According to the release, the acts of sexual harassment allegedly occurred in the 2009-10 school year, when the student was a 16-year-old junior at Berkeley High. The sexual misconduct allegedly included the counselor caressing her inner thigh and making “unwelcome comments,” including asking her if she slept naked and expressing a desire to “share feelings” with her.
Rosenbaum — who represented the student in December 2010 when the case was originally brought before the district’s Board of Education — said in an email that the suspension is “a bit anti-climatic” but “symbolically important.”
The hurdles imposed by the commission — for example, requesting Smith’s middle name, social security number or date of birth — and the amount of time it took them to investigate “explains why it took a lawsuit to get any more meaningful action,” Rosenbaum said in an email.
According to Mark Davis, Smith’s lawyer in the federal lawsuit, there were two avenues through which Smith was tried. In addition to being confronted with criminal prosecution in the court system, he faced a review of his academic credentials through an internal process by the state.
Filed in December 2010 by the student — who was given the fictitious name Lilah R. in the lawsuit to protect her identity — the complaint made to the commission was meant to review the allegations of sexual misconduct made against the credential holder, Smith.
Davis said he hadn’t yet had a chance to speak to his client but suspected Smith might “try to abide” by the suspension considering the suspension’s short duration and the economic costs required to contest it.
“If they really thought he had subjected her to actual abuse, they would have subjected him to more than a seven-day suspension,” Davis said in regard to the commission’s decision.
The district’s evaluation of the case concluded there were no witnesses to the incidents of harassment and that Smith denied the allegations, but also determined that Smith “engaged in inappropriate and unprofessional behavior contrary to District policy.”
The district could not be reached for comment as of press time.
Prior to the federal lawsuit, Lilah was granted a temporary restraining order against Smith in September 2010 — which required Smith to maintain a distance of 100 yards from the student — when the district did not remove him from campus due to constraints imposed by agreements with the Berkeley Federation of Teachers.
After the temporary order expired, the parties then settled out-of-court in October 2010 with Smith voluntarily agreeing to maintain a distance of 50 yards from the student.
Lilah then filed a complaint with the Department of Education’s Office for Civil Rights — an office whose mission includes ensuring equal access to education — in December 2010. She later filed a federal lawsuit because the district “refused to act on her administrative claim,” and the complaint with the office was moving too slowly, according to Rosenbaum.
“We have turned to the court because the Berkeley school district has been AWOL,” Rosenbaum said in an October 2010 email.
Rosenbaum said in an email that he gave the board and district officials “plenty of time to settle this early on, quickly, quietly and for no money,” adding that district officials and their lawyer “shined us on until a lawsuit was filed.”
The lawsuit against the district — which named Smith, District Superintendent Bill Huyett and the district itself as defendants — claimed district administrators did not adequately respond to the student’s assertions that Smith had acted inappropriately towards her. Smith remained an employee of the school over the duration of the lawsuit.
As a result of the lawsuit, the district’s school board approved a settlement in December 2011 that included compensation of $57,500, according to the press release.
According to the settlement, Smith is also required to keep his office door open and blinds up when he counsels students except under limited circumstances. Additionally, he is barred from pulling students from class without an administrator’s permission.
“I’m glad the commission took action against Mr. Smith. But I’m concerned because Berkeley hasn’t told us yet whether he has even signed the statement agreeing to abide by the terms of our settlement,” Lilah said in the release.
Davis said that Smith “had no problem” with these stipulations, adding that “behind a closed door you run the risk of a he-said she-said situation, which is what happened here.”
He also said the case had “no merit,” but said the money paid in the settlement was less than the amount that was required to defend the case or pay Lilah, had she won the case. According to Davis, the school funded the settlement.
“It will take vigilance from the entire school community to make sure Smith abides by the terms,” Rosenbaum said in the release.
According to the release, the settlement also requires the district to update its current student handbook to include more specific information about how to report incidents of sexual harassment.
Additionally, an advisory committee composed of parents and district staff has begun to meet to “clarify Berkeley’s sexual harassment policy and procedural timelines,” according to the release.
The committee — on which Rosenbaum serves — is also planning training workshops for students, parents and staff that will occur this coming fall, according to the release.
A previous version of this article stated that Smith’s suspension will go into effect on June 30. In fact, his suspension will take effect on June 3.