An open letter from Sujit Choudhry about sexual harassment

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Lauren Glasby/Senior Staff

Read an editor’s note about this op-ed here.

To the students of the UC Berkeley School of Law:

Last week, I went to work in my office on campus. I understand that this has caused some of you confusion or even alarm. I know many of you thought I had been banned from campus. But even in times of controversy, and in fact especially in times of controversy, the facts still matter. The undisputed fact is that I am not and have never been banned from campus. There is not, and has never been, any legal or factual basis for banning me. I have the right to go to work. I am exercising that right, peacefully and unobtrusively.

In the spring of 2015, the evening before she went on leave, Tyann Sorrell sent me an email in which, for the first time, she complained to me about my conduct toward her. She assured me in her email that “I know you don’t mean anything by it, other than, perhaps, a warm and friendly greeting.” She described me as having “pure intentions.” She said that she assumed I meant nothing by my gestures and, for that reason, she had never before signaled her discomfort. She did not allege — and she has never alleged — that my actions were of a sexual intent. When I read the email, I was shocked. I was embarrassed. I immediately ceased the conduct. I apologized. I was, and remain, extremely sorry that I had put her in an uncomfortable position. I reacted in this way precisely because, as she knew, I meant nothing by my gestures.

In the following months, I cooperated sincerely and fully with the university’s internal investigation — an investigation that the university itself has described as thorough and appropriate. I received an investigative report that concluded, correctly, that I was unconscious of my actions toward Ms. Sorrell. The report made many factual findings that I contested then and which I contest to this day. But I accepted the report in an effort to take responsibility for my actions, to learn from what had happened and to try to enable both Ms. Sorrell and myself to move on. And I accepted the report in exchange for a complete set of sanctions that the university handed down to me through then-executive vice chancellor and provost Claude Steele — sanctions that the entire campus leadership, including Chancellor Nicholas Dirks and his legal advisers, described as “warranted and appropriate for this situation.” By accepting the settlement offered to me by university leadership, I also made the judgment call not to exercise a number of rights available to me under university policy, which, in real and practical terms, I cannot effectively exercise now. I abided by and fulfilled every term of that sanction, including by apologizing in writing to Ms. Sorrell — an apology that, unbeknownst to me, the university literally put in a drawer and failed to provide to Ms. Sorrell for roughly two months.

This past March, Ms. Sorrell launched a lawsuit against the university and me. For days, the lawsuit was international news, and my picture appeared online, in print and on local television. My family was besieged for weeks by media from around the world. Four days after the lawsuit was commenced, I learned, through an article in a newspaper, that UC President Janet Napolitano had directed Dirks to ban me from campus and initiate a second, “do-over” disciplinary process against me, and that she had earlier called my behavior “groping.”

The public response was fast and furious. Petitions were circulated calling for me to be fired. I was called a rapist on Twitter. A leading national newspaper accused me of “forcibly kissing” Ms. Sorrell (it retracted that statement later). Another newspaper called me a “predator.” My 11-year-old daughter learned about the lawsuit from the internet on her school computer. She read racist online comments about me that she cannot erase from her mind. My wife developed serious health problems. I became too frightened to leave my own home, an exiled pariah. I watched helplessly as my reputation as an academic administrator, a scholar, a husband, a father and a friend crumbled in a matter of days.

The university has now launched a second disciplinary process against me, more than a year after the initial complaint was made and many months after the first process concluded with a full, complete, “warranted and appropriate” sanction. The public reaction to my case has everything to do with the university’s unprecedented effort to launch this “do-over” investigation. That public reaction was also fueled by the university’s handling of other sexual harassment investigations within the UC system. While I understand that context and share in the community’s concern that the university must be a respectful and inclusive environment, it is a fact that my case has been handled in an unprecedented manner because of the conduct of others and the administration’s desire to deflect attention away from itself.

Although neither Ms. Sorrell nor the university’s investigators considered my conduct to be sexual or predatory in intent, that fact — that uncontested fact — has, remarkably, fallen by the wayside in the rush to condemn me. I am a loving husband and father to two young children, as well as a scholar with a long career in academia, and I have never been accused of any misconduct — sexual or otherwise — in my life before this case. I have supervised women employees and research assistants, and I have taught women law students, for 18 years, and no other woman has made an allegation against me nor has any come forward after Ms. Sorrell’s allegations.

Let’s be clear: Sexual violence of all forms is horrendous and never, ever acceptable. I share and agree with your instinctive reaction to protect and support victims of sexual predation everywhere. Let’s also be clear on this: I acted with no sexual intent toward Ms. Sorrell. I am not a predator and have never been accused of being one until now. In the face of public hysteria, I am the predator who never was, purportedly subject to a campus ban that never was.

At Berkeley Law, we train you to think carefully, to weigh and evaluate information, to gather and consider all of the evidence, deliberately and impartially. Not to draw hasty conclusions based on lopsided readings of partial, or contested, records, even when you have strong feelings on the issue. To establish and defend thoughtful procedures that are fair and even-handed, that apply to everyone and that do not prejudge matters, no matter how horrible those matters may sound when they first become public. To evaluate people and events based on reason and justice, not instinct and passion. I ask you to rededicate yourself to those principles now.

My most sincere hope is that you will take the time to understand the truth in this matter. That, recognizing that you do not know all the facts and cannot at this stage, you will refrain from judgment. That you will not sign the next online petition calling for my head so hastily. That you will not go on social media and hurl invective at me. That you will leave me in peace and let me go to work, as is my legal right. And that you will draw your conclusions based not on your justified concerns about sexual violence, which I share, but on a measured and objective review of all of the evidence, and the principle, central to the profession into which you plan to one day seek admission — that there is more than one side to every story.

Sujit Choudhry is the former dean of the UC Berkeley School of Law.

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  • Matigari

    Justice for #HughMungus and Harambe

  • Amy Luna Manderino

    This letter is code for: I am a creepy dude who has normalized creepy behavior towards women in the workplace who was saved by a system that doesn’t yet punish high profile creepy dudes the way they should be punished and I’m wrapping myself in the flag of that inadequacy and circular logic to claim justice was done and I am the victim.

  • jrabin

    Sounds like you’re guilty until proven innocent. Except in this case, when even if found innocent, you’re still guilty.

  • FES

    This man is an idiot and should be dismissed post haste.

  • Donny “Twitter” Trump

    This guy is a pig and Berkley Law is a joke.

  • Duke Ashwood

    Another dude suffers at the hands of some unhinged broad on the rag. F-in disgraceful.

  • Concerned Bear

    “In the face of public hysteria, I am the predator who never was, purportedly subject to a campus ban that never was.” Ooof. You think he’d be smart enough to avoid the word “hysteria” in this context.

    • Trite and Banal

      LOL. I think he meant “histrionics”.

  • wfoster

    My own observations from decades in the bowels of academe confirm the frequency of these type of outbreaks of narcissistic, drama-queen morality plays. Scolds and emotional blackmailers take on different guises – they are opportunistic – but they flourish among the mostly easily-bullied and pencil-necked professoriate. The issues and styles of the dramas change, of course. Today, in the USA, these often take the form of the self-congratulatory sanctimony of what passes for the bien–pensant leftism of the privileged chattering classes. But in other times and places, it could be church-lady, prudish moral correctness or the chest-thumping political correctness of old-time chauvinism. And just to repeat something that everyone should keep in mind, the famous Sayre’s law:

    In any dispute the intensity of feeling is inversely proportional to the value of the issues at stake.

    That is why academic politics are so bitter.

  • hubertlepicki

    So what it was about? Kiss on the cheek? A hug? A handshake? It is not clear from the article at all…

    • nobuddy
      • ammerique

        Yikes, that is incredibly creepy. He sure does downplay it all. I think the University’s response and punishment were unacceptable. How can a dean at a law school ever think this behavior is appropriate in the workplace?

  • Duda Day

    As a middle-manager, having worked at this bizarre University for over 20 years, I can say without hesitation that sexual harassment accusations are commonly used by incompetent staff who have received negative annual reviews or are simply mentally disturbed. You are instantly branded as guilty and it usually takes two years of political machinations between the Union and campus HR, who never follow the written regulations for grievances. Meanwhile, you are never allowed to prove your innocence and the case is settled usually by moving the said false accuser to another department. That explains why managers almost always write positive reviews and let their employees do what they want as they count their days toward retirement, if they can make it to that happy conclusion.

    • Logan Stout

      Sujit Choudhry can not only count his days until retirement but he can also count his dollars, even after a 10% reduction in salary he still clears $373k. It is such a challenging time to be a manager, poor things, they’re the real victims here…
      Even still, there was never a negative review, there was a positive one, a review that was so positive it led to a dean of a school taking advantage of someone less than him. Now, not even being held to what he admitted to doing. How dare any one paint him to be the victim. Sexual Assault is falsely reported statistically at a rate of 2-10%. But again, those things don’t matter, managers are the real victims here.

      • CamNewton

        Why are poor people so damn salty about intelligent, talented people making more money then them?

        • Logan Stout

          You’re missing the point. If he were intelligent or talented he wouldn’t be sexually harassing people. His law based intellect is not the only measure of his job.

          • CamNewton

            “If he were intelligent or talented he wouldn’t be sexually harassing people. ”

            You’re literally saying that it’s only unintelligent, untalented people who sexually harass people…. and that intelligent people don’t do it.

          • Logan Stout

            I’m just measuring intelligence differently than you that’s all. You’re saying he’s intelligent and talented so he makes a lot of money because of that and I’m saying that he’s clearly not that intelligent because only an IDIOT could sexually harass a woman and force themselves on them!

      • Trite and Banal

        “Now, not even being held to what he admitted to doing. How dare any one paint him to be the victim. Sexual Assault is falsely reported statistically at a rate of 2-10%.”

        First question (serious question, not rhetorical): What did he admit to doing?

        Second question (also not rhetorical): How do you know that sexual assault is falsely reported at a rate of 2-10%? What methodology was used to calculate that statistic? Finally, can you be sure that every person accused of sexual assault does not fall into that 2-10%?

        • Logan Stout

          “Respondent admitted that he hugged and kissed the Complainant on multiple occasions, but “there was never any sexual intent.” He stated he did this at the end of a long day, as a way to “say thanks for managing the office.” The Respondent noted that he would hug and kiss the Complainant more often than others” That’s directly from the report.

          Can you sexually harass someone when you have no intent to do so?

          – A multi-site study of eight U.S. communities
          including 2,059 cases of sexual assault found
          a 7.1 percent rate of false reports (Lonsway,
          Archambault, & Lisak, 2009).
          – A study of 136 sexual assault cases in Boston
          from 1998-2007 found a 5.9 percent rate
          of false reports (Lisak et al., 2010).
          – Using qualitative and quantitative analysis,
          researchers studied 812 reports of sexual
          assault from 2000-2003 and found a 2.1
          percent rate of false reports (Heenan
          & Murray 2006).

          The false reports are when they are found innocent… That seems so incredibly obvious.

          • Trite and Banal

            Thank you. Please do not take anything I write below as a disagreement with the ultimate conclusion that an exceedingly low number of people falsely report sexual assault or violence (maybe it IS the 2-10% you cited). The numbers feel right based upon my general impression that people don’t want the trouble that comes with reporting sexual harassment and/or violence and so reporting would tend to be against the interest of the reporting person and would therefore tend to be true. Also, I think sexual assault and violence are bad things and should punished appropriately.

            I’m just not so sure about the methodology used to support the numbers cited, which I have heard oft-repeated. It seems to me that trying to estimate the incidents of false sexual assault/violence reports is a bit like estimating the frequency that people think about elephants in a day. We can take some guesses, but at the end of it all, they’re just guesses with more or less support.

            First, I don’t think “qualitative and quantitative analysis” is a methodology. It’s like saying your math proof is math or that your theory is supported by evidence. It describes the tools used to engage in a particular methodology but it doesn’t describe the methodology. What did the authors define as “false”? What does “qualitative” mean in this context? Why use qualitative analysis at all? What is a “report”? What reports are included? Were any excluded and why? What area of the country was chosen? Is there any reason to think that the area may lead to higher or lower incidents of false reports? Etc…

            Second, all of the articles you cited just state the conclusion and so I cannot even begin to analyze whether the conclusions are legitimate without going to the SSRN.

            I don’t think it is obvious that the false reports are when they are found innocent and I really hope that’s not the methodology the researchers quoted above are using. We know that many people have been wrongly convicted and so convictions in and of themselves cannot be dispositive determinations of facts. Further, people are not usually found “innocent”. Rather, the prosecution did not meet its burden and so they are “acquitted”. That doesn’t mean that a crime did or did not occur, it just means the prosecution couldn’t prove it beyond a reasonable doubt. If it’s in the civil context, the standard is, generally speaking, “more likely than not” or a “preponderance of the evidence”. Further still, courts are not truly fact-finding machines. There are rules of evidence that often exclude probative evidence for reasons unrelated to its veracity or usefulness, witnesses often forget facts or mislead the jury, and the lawyers spin facts in their client’s favor and pick jury members more likely to find in their client’s favor. All of those factors move judicial “findings of fact” further away from the truth, not closer.

            Courts are partially about truth and facts, but they are also about the law, procedure, due process, justice, etc…

  • Shani

    In short: I don’t believe hugging and kissing my executive assistant on the cheek frequently qualifies as sexual harassment.

    You were somehow “unconscious of your actions” that entire time. Hugging and kissing your assistant on the cheek is sexual harassment per UC policy. You would not have treated a male assistant in this manner. Whether or not you had “sexual intent” is irrelevant.

    I do not pity you. To teach law, you must be able to follow it.

    • The_Governments_koch

      “Hugging and kissing your assistant on the cheek is sexual harassment per UC policy.”

      Except you’re wrong, and it isn’t, ACCORDING TO UC POLICY.

      Sucks to be wrong like you are, doesnt it?

      • Gene Nelson

        Oooh. All caps. You must be correct.

      • snarkylarky

        How old are you bro?

    • Trite and Banal

      If he was hugging and kissing her, it was a poor decision to be sure.

    • snarkylarky

      Thank you! How is no one else seeing it like this??

  • have you ever heard of due process? let this man have his day in a criminal court if he is as guilty as you all say he is. Don’t let an innocent man get lynched by the campus kangaroo courts

    • Wether or not someone continues as a employee after breaking that employee code of conduct is an internal disciplinary matter. For example let’s say that an grocery store employee is caught stealing food by his boss. His boss can just fire/discipline him without having to go to criminal court.

      • and the internal process at the university has played out already. What I am referring to is the shameful and self declared SJW kangaroo courts gathering outside boalt hall to lynch a man without due process

        • still trying

          “the internal process at the university has played out already.” I far as I know, the internal investigation is not over.

          • Trite and Banal

            Cite please. The way I read the dean’s letter is that it did play out and then was restarted later. Is that wrong?

          • still trying

            From what I have read there was an informal investigation done to determine if complaint was legitimate. Now, with faculty a more official investigation will occur. But from the letters written by his attorney to janet, that I have read, I feel this will be covered over and dropped. He will receive a huge pay out and retire.

          • Trite and Banal

            Thanks.

      • Ali Radicali

        Of course they *can* fire him. The question is why colleges and universities are getting into the business of practising law. If they think the guy is guilty of a crime they should have the courts handle it, not some illegitimate administrative tribunal.

        • Trite and Banal

          But it’s not illegitimate… it is a public university with what I presume is an identified procedure for resolving these types of issues. When employees agree to work there, they agree to the procedural method for resolving the issue. Resolving a personnel matter is not practicing law, it’s simply resolving a personnel matter. If UC were simply to say “let’s wait for the court to decide”, and the court subsequently found him guilty on a criminal charge or found in favor of a civil plaintiff, then the university would still need to go through the process of terminating the employee if they so chosoe or instituting some other form of punishment. BTW, the point about it being public is that, generally speaking, public institutions have less ability to willy nilly fire people than private companies do.

          • Ali Radicali

            “It’s not illegitimate because it’s the rules”
            Are… are you serious?
            The. Whole. Point. is that these rules are ridiculous. Title IX has been transmogrified and stretched into a mandate that schools find students accused of sexual misconduct “responsible” lest the institution itself come under fire. It’s created a system designed not to find out the truth, but rather to railroad the accused out of school with a minimum of PR fuss.

          • Trite and Banal

            When you quote people, you should make sure it’s actually what they said. Also, the word “The” is not a sentence. Neither are “Whole” or “Point”. Finally, I don’t think the dean of the law school is also a student there. So your point about Title IX is misguided.

      • Trite and Banal

        True, but if the dean’s letter is to be believed (and I have done literally ZERO research on this issue), UC is a public institution and apparently already went through a process (presumably a due one). To redo it because the same allegation was repeated in a civil court is probably improper.

        • The new allegation is that the previous process wasn’t “due” for the complainant. It was unfair enough that the person who oversaw the first process (EVCP Steele) resigned from being the second in command of the University in order to avoid being involved in the do-over.

  • Brian Carter

    We can all agree that this is a very tense issue and that if any wrongdoing was done, the perpetrator should be punished justly. However, due to information/evidence that is still to be compiled/released and proceedings that are still in progress, I think a level-headed response would be to wait until the case is closed before imparting judgement. In today’s age it’s easy to do a trial-by-fire a la social media, and somethings that does do well in terms of justice (eg. Brock Turner deserved the backlash, we know undeniably that he was guilty). But in this particular case, holding our breathes would not be a mistake.

  • GregE198

    Sexual violence and sexual harassment are not the same thing, although both are crimes, and I note the author does not distinguish the two.

    • the burden of proof falls on the accuser, not fall on the defendant

      • eean

        not for HR anywhere

        • that’s no excuse for the campus kangaroo courts gathering outside boalt hall with nooses in hand to hang the accused without trial

        • The_Governments_koch

          “not for HR anywhere”

          This is utterly wrong.

          • eean

            Please tell us about the adversarial HR judicial system you have witnessed, with presumption of innocence?

            I actually do think there is an argument to be made that we should have a regulated labor market like Germany, and no one should be allowed to fire arbitrarily. And if the folks up in arms about how sexual harassment isn’t judicial-alike enough were in unions making that point it would be a fair one. Like do folks calling for “due process” also want “due process” for anyone fired for just being lazy? Or just certain professors?

    • NYAttorney

      Sexual harassment is typically a civil offense, not a crime.

      • Nunya Beeswax

        Correct. And so it’s ultimately irrelevant to bring up the rules of due process in criminal cases.

        • Trite and Banal

          Sorry, what?

  • Gene Nelson

    So I notice you avoid describing your “gestures”. How about you own up and tell us exactly what you did.

    • CamNewton

      Obviously whatever gesture he referred to was nothing significantly inappropriate, because as the investigation concluded, there was not sexual intention.

      • still trying

        The investigation is still on going.

      • Gene Nelson

        If so,he should have no problems with telling us exactly what he did.
        He whines for us to leave him alone but he refuses to say what he did. I call shenanigans.

    • Why don’t you leave criminal matters for the legal courts and stop trying to stir up a kangaroo court here

      • Gene Nelson

        You don’t want facts? Fine. Others do. Thank you very much comments cop.

        • We want facts before a court of law, not before kangaroo courts. I hope you remember that when the sham court of public opinion tries to smear your good name one day

          • Gene Nelson

            No one should be afraid of telling the facts of a situation.

            The guys whines on and on begging us to be nice to him. He’s the one trying to make his case outside of the law.

            Wonder why you think hiding facts is good. Wonder what you are hiding?

          • Trite and Banal

            Have you ever been in a courtroom? What makes you think any facts come out there?

          • and you seem to think campus kangaroo courts are the solution?

          • Trite and Banal

            Nope. Read my other comments. My point is that a courtroom is not a perfect fact-finding machine, nor is it designed to be. A US court has many different functions not all of which are related to “the truth or “the facts”.

      • Trite and Banal

        It’s a civil matter apparently (not criminal). And UC internal investigations are not courts at all… not unless the dean exercises whatever administrative remedies he has available to him.

    • Trite and Banal

      I had the same question. I don’t have a horse in the race, but his use of the word “gestures” sort of jumped off the page at me.

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