On July 28, a federal judge dismissed with leave to amend two civil cases brought against UC Berkeley that claimed campus administration had not adequately addressed two separate incidents of sexual assault under Title IX law.
In the decision, U.S. District Judge William Orrick was largely sympathetic to the arguments of the cases’ plaintiffs — campus alumnae Sofie Karasek and Nicoletta Commins — and allowed them the chance to amend their complaints to be reconsidered. But while Orrick criticized UC Berkeley in his ruling for having “bungled its response” in the two cases, he ultimately found that this response had not met the legal standard of deliberate indifference required to potentially merit the payment of monetary damages.
“The deliberate indifference standard … protects school administrations that do investigate and remedy complaints,” Orrick said in the decision. “Judges are not permitted to substitute their views for those of not clearly unreasonable administrators.”
Orrick did take issue, however, with several specific aspects of the campus’s actions related to the two assault cases. In particular, he expressed concern over UC Berkeley’s alleged lack of communication with the victims, and he also called into question whether the campus had sufficiently punished those implicated in each of the two cases.
“(UC Berkeley’s) failure to communicate with plaintiffs in a meaningful way prior to making its disciplinary decisions is a glaring deficiency in (its) process,” Orrick said in the ruling, adding that “one wonders what it takes to get expelled from (UC Berkeley) if a conviction for felony assault of a fellow student is not enough.”
In February 2012, Karasek participated in a trip to San Diego with the Cal Berkeley Democrats, where she was touched inappropriately by a member of the club while she was sleeping, according to court documents. The assailant continued to touch Karasek in a sexual manner for approximately 30 minutes after she awoke, during which time Karasek said she “froze in the moment.”
The documents further stated the campus did not contact Karasek for eight months after she filed her sexual assault complaint and that during that span, the president of Cal Berkeley Democrats told Karasek that campus administration had advised the club against removing the assailant on the grounds that he would present a greater danger to other clubs less equipped to handle his actions. Karasek alleges that the incident and its aftermath had several noticeable effects on her wellbeing — including causing emotional damage, resulting in a drop in her GPA and compelling her to change majors.
In the other case, court documents state that Commins was sexually assaulted in her apartment by a UC Berkeley student on or around Jan. 20, 2012. As part of her argument against the campus, Commins drew attention to the fact that during the campus’s sanctioning process she was not allowed to see the evidence provided by her assailant.
Campus administration has received substantial criticism for its recent handling of sexual assault incidents, and according to incoming ASUC Senator Marandah Field-Elliot, its response to such cases has been inadequate.
“I think that the university did act with deliberate indifference, but the judge decided otherwise,” Field-Elliot said in an email. “But honestly, whether or not it was deliberate doesn’t negate the fact that UC Berkeley deals with cases of sexual assault indifferently and insufficiently, and hopefully the fact that this was said in a court of law may pressure campus disciplinary procedures to work more effectively, quickly and in a way that greater respects survivors’ rights under Title IX.”
UC Berkeley spokesperson Janet Gilmore said in an email that the campus feels it did satisfy Title IX’s mandate to remedy and prevent sexual misconduct. She added that administration was “saddened” that some students were unhappy with the campus’s efforts in relation to the handling of such incidents.
“We want all students to know that we are committed to addressing sexual assault on campus and that we are here to assist them in every step of the process,” Gilmore said in the email. “We encourage (sexual assault) survivors to take advantage of our support services.”
Irwin Zalkin, one of the plaintiff’s lawyers, said he believed Orrick made a mistake in dismissing the case with leave to amend, and he disagreed with the ruling’s implication that no reasonable jury could find that campus administration had been deliberately indifferent. Zalkin added that it was problematic to apply aspects of the deliberate indifference standard — a standard established in a 1999 case involving elementary school students — to adult college students.
The cases’ plaintiffs are allowed to file their amended complaint by Aug. 17, an option Zalkin said they will exercise.