W hen professors sexually harass a colleague or a student, it can take a long time for colleges to punish them, especially if the professor in question has tenure. Faculty members often call for the extra layer of due process provided by separate, faculty-run hearings.
A newly completed federal investigation of the University of California at Berkeley suggests that colleges should try to speed up those proceedings. But that’s easier said than done.
After a four-year review, the U.S. Department of Education’s Office for Civil Rights announced this week that Berkeley’s handling of certain sexual-assault and -harassment complaints was “out of compliance” with Title IX, the federal gender-equity law.
The civil-rights office took issue with the lack of a defined time frame in Berkeley’s faculty disciplinary process — specifically, the faculty-led proceedings that begin after the university’s Title IX staff has investigated a complaint. (The investigation is supposed to wrap up within 60 days.)
Berkeley revised its policy for adjudicating professor misconduct last year. Within 40 days of the Title IX investigation’s conclusion, the vice provost for the faculty — after consulting with a peer committee of faculty members, who read the Title IX report and make a recommendation — must decide how a professor’s sexual-misconduct case will proceed.
The case can go to a formal hearing run by the faculty-led privilege and tenure committee, or an “early resolution” that doesn’t involve a hearing. Alternatively, the faculty vice provost can choose not to take any disciplinary action.
But there’s no deadline for completing those steps, federal investigators said. The policy says only that, if a professor is found responsible for sexual harassment, a punishment must be imposed within three years of the initial complaint.
“As written, three years is not a reasonably prompt time frame for concluding an investigation and issuing an effective response for a complaint of sexual harassment and/or sexual violence,” investigators wrote.
Three years is not a reasonably prompt time frame for concluding an investigation and issuing an effective response for a complaint of sexual harassment.
In a resolution agreement, the civil-rights office told officials to change the University of California system’s policies to ensure that disciplinary proceedings for faculty or staff members “will be completed in a reasonably prompt manner, depending on the severity and extent of the harassment and complexity of the matter.”
Clearly, the civil-rights office wants Berkeley administrators to resolve harassment cases involving professors faster — or, at least, to have a good explanation for why a case can take as much as three years.
However, as is the case at many colleges, Berkeley’s conduct process for tenured professors is handled by its central faculty-governance body, the Academic Senate. Title IX officials don’t have the ability to impose time frames on it, said Kathleen Salvaty, systemwide Title IX coordinator for the University of California.
“We live in a world of shared governance,” Salvaty said, and she stressed her strong support for faculty rights and academic freedom.
“But the Senate processes are dictated by Senate bylaws and the academic personnel manual,” Salvaty said. “I don’t have authority to change them, and neither does President Napolitano.”
It can take a long time to convene the two faculty committees, schedule a hearing, handle any appeals, and wait for the chancellor to make a final decision.
“The goal of the faculty adjudication process is, as this document outlines, considerably more ambitious than this goal of initiating discipline within three years of the report of an allegation to the Title IX officer,” Berkeley’s policy states.
“However,” it adds, “the process is complex, and the need to be fair and thorough means that it takes time, sometimes many months, to complete.”
Eva Hagberg Fisher, a Ph.D. candidate at Berkeley, first filed a complaint saying one of her professors sexually harassed her in March 2016. Hagberg Fisher, who published a widely read piece in The New York Times about dressing for harassment hearings, said her case against Nezar AlSayyad, a professor of architecture, remains open today.
Berkeley had been telling her since 2016, “‘This is just how long it takes, we can’t make this go any faster, we can’t give you more information,’” she said. “The last few years have been so hard.”
“I’ve been trying to tell myself I’m expecting too much, maybe it should take this long, maybe I should just be more patient,” she added.
In December, Hagberg Fisher settled with Berkeley for $80,000 in exchange for agreeing not to sue the university. AlSayyad’s case continues to move through the Academic Senate. A Berkeley spokesman didn’t immediately respond to a request for comment about her case.
Salvaty said she hopes officials from the University of California system can come together with faculty leaders and work on clarifying the proceedings in the near future.
Most other colleges don’t specify a timeline for faculty sexual-harassment cases to be resolved either, said Peter F. Lake, who leads the Center for Excellence in Higher Education Law and Policy at Stetson University.
In reality, most professors who face allegations don’t go through the full disciplinary process, Lake said. They often resign, sign a nondisclosure agreement, and move to another institution, he said.
Across the University of California system, Salvaty said, faculty members can enter into a settlement with the university at any point before or during the Academic Senate’s process.
But the civil-rights office’s discussion of professor misconduct at Berkeley, Lake said, adds fuel to the debate about “deeply embedded faculty rights” and whether they slow down the resolution of sexual-harassment cases.
The Berkeley investigation also makes clear that colleges should be diligent about justifying why exactly it takes so long to resolve a case, he said.
When Berkeley came under fire in 2015 for its handling of the harassment allegations against Geoff Marcy, a star astronomer, University of California leaders said the constraints of the faculty disciplinary process had prevented a more prompt resolution.
The University of California system then went through an extensive review of its sexual-harassment policies and came up with a “faculty framework” for its campuses that was designed to be more open and prompt. It took effect last July.
Janet Gilmore, a spokeswoman for Berkeley, said the new process eliminated one time-consuming step: a separate faculty investigation that used to occur after Title IX officers had done their review.
Still, from what the civil-rights office said this week, even Berkeley’s revised procedures may not pass muster.
“We know,” Gilmore said, “there is more work to do.”
This article has been updated (3/4/2018, 9:35 p.m.) with a response from the University of California at Berkeley.
Emma Kerr contributed reporting to this article.
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.
