Berkeley High School: at center of a sexual harassment case. Photo: Frances Dinkelspiel
Berkeley High School: at center of a sexual harassment case. Photo: Frances Dinkelspiel

By Anika Anand and Emily Hartley
California Watch 

After a Berkeley High School student complained of sexual harassment by her guidance counselor, the Berkeley Unified School District spent $94,000 on lawyers to fight her claim.

Then in February, school officials made a $57,500 insurance payout to settle the girl’s lawsuit, according to court records and interviews.

The financially strapped school district’s spending on the controversial harassment case probably was greater. But for the past year, school district officials have refused to disclose how much they spent on the case, ignoring information requests filed under the state’s Public Records Act by California Watch and by a legal watchdog group, the First Amendment Coalition.

The girl, identified in court records as Lilah R., claimed in 2010 that Berkeley High counselor Anthony Smith had sexually harassed her for much of her junior year. He subjected her to lewd remarks, tried to embrace and caress her, and pulled her out of class to make “unwelcome sexual advances,” she said in a U.S. District Court lawsuit. She claimed that the school ignored her complaints.

When the allegations became public in 2010, they roiled the 3,400-student high school. In letters to the girl’s parents, Superintendent William Huyett said Smith’s behavior was “inappropriate and unprofessional” – but not sexual harassment, court records show. Huyett told the parents that he would take “appropriate personnel action,” but never said what that was, the lawsuit said.

The girl decided to sue when the district refused to remove the counselor from the high school campus, her lawyer, Michael Sorgen, said in a statement.

Smith denied wrongdoing and still works as a counselor at the high school. His lawyer, Mark Davis, said the lawsuit had no merit, but was settled by the district because it was too costly. In May, the state Commission on Teacher Credentialing recommended suspending Smith’s teaching credential for seven days, but the matter is still pending, a spokeswoman said.

As the case began to unfold, the school district hired lawyers. In court, two lawyers from a Pleasant Hill firm represented Berkeley Unified. The district paid that firm about $67,600 for its work on the case, one of the lawyers, James Marzan, said in a telephone interview.

Marzan said the district also covered Smith’s legal expenses, paying $26,300 to Davis’ firm. Marzan said he didn’t know if the district made other payments.

But the girl’s father said a Pleasanton lawyer, Marleen Sacks, also had worked for the district on the case. Sacks declined to comment.

For the past year, Berkeley officials have balked at disclosing how much they spent defending Smith. In July 2011 and again in September, California Watch wrote to the district, citing the Public Records Act and asking for records of the expenditures. The district didn’t respond.

California Watch reporters also telephoned and emailed schools officials seeking the payout information. Those contacted include Huyett; Delia Ruiz, assistant superintendent of human resources; public information officer Mark Coplan; and Jerry Johnson, who until recently was the district’s risk manager.

Most queries were ignored. Sometimes an official promised to look into the matter, but failed to respond to follow-up queries.

In November 2011, the San Rafael-based First Amendment Coalition also made a Public Records Act request for the information. There was no response – just “a total, Kremlin-like institutional silence,” said Executive Director Peter Scheer. That’s very unusual, he said.

State law requires all public agencies to respond to a records request within 10 days, either making the requested information public, providing an estimate of how long it will take to provide information or citing a legal reason for keeping it secret.

“The kindest explanation is that the school district is so disorganized and incompetent that public records requests simply fall through the cracks again and again,” Scheer said. “A less charitable explanation would be that they’ve simply adopted as internal policy a strategy of ignoring legal requests for records.”

In settling the girl’s lawsuit, the school district agreed to form an advisory committee to clarify its sexual harassment policies, records show. Smith agreed to leave his office door and window shades open when he counsels students and to stop pulling students out of class except in emergencies.

School board member Leah Wilson said settling the harassment case was the right thing to do.

“Speaking as a board member and given the legal advice we received, I would say this was the appropriate outcome,” she said. “But I think as a parent, I am not comfortable with the outcome. That would be my honest answer.”

She said she wasn’t aware of the public records requests.

“I’m a little confused as to why people just aren’t responding to you,” Wilson said.

This story was produced by California Watch, part of the Center for Investigative Reporting. Learn more at California WatchCalifornia Watch senior reporter Lance Williams contributed to this report.

Berkeley High counselor given seven day suspension [05.07.12]
Berkeley School district settles sexual harassment case [01.12.12]
Berkeley High harassment case close to settling [12.08.11]
Berkeley High harassment case heading to settlement [07.21.11]
BHS sexual harassment case taken to federal court [04.22.11]
Government to assess Berkeley High harassment case [12.07.10]
BHS harassment case settles, leaves open questions [10.29.10]
BUSD decision appealed in BHS harassment case [09.21.10]
Restraining order served on Berkeley High counselor [09.16.10]

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