Suit over UC Berkeley assault policy OKd

Three women who say they were sexually assaulted by fellow students or faculty at UC Berkeley in 2012 may sue the school for an alleged policy of deliberate indifference to claims of assault and harassment, a federal appeals court ruled Thursday.

Two women said they were assaulted by students, and the third said she was repeatedly groped by a man who was a visiting lecturer at the university. One of the students was criminally tried and convicted of assault, but his victim said he was later allowed to return to campus while she was still a student. All three women said they received little or no information from UC Berkeley about its investigation of their complaints.

The Ninth U.S. Circuit Court of Appeals in San Francisco said the university may have been “negligent, lazy and careless” in failing to follow its own policies or guidance from the U.S. Department of Education in investigating the incidents.

But civil rights law requires evidence that the institution was deliberately indifferent to complaints of sexual wrongdoing. The court said the women had failed to allege that UC Berkeley, despite sometimesshoddy investigations, had been deliberately indifferent to their individual complaints — but they might be able to make that showing about the school’s overall policy.

The ruling cited a 2014 report by the California state auditor that said UC Berkeley referred nearly all complaints of sexual misconduct to an informal process in which students were not told how their complaints were being handled and sometimes were kept in the dark about the outcome. The audit also found that UC Berkeley “did not sufficiently educate its employees and students about preventing sexual harassment,” the court said.

“A university is not responsible for guaranteeing the good behavior of its students,” Judge Jay Bybee said in the 30 ruling, which partially reinstated a lawsuit that a federal judge had dismissed. But at least at this stage of the case, he said, the women were entitled to argue that the university “had a policy of deliberate indifference that heightened the risk of sexual harassment on campus.”

The court returned the case to U.S. District

Judge William Orrick III of San Francisco to decide whether the women had adequately alleged flaws in UC Berkeley’s policies that contributed to the attacks.

The women’s lawyer, Alexander Zalkin, said the ruling allowed at least a possible civil rights claim for “an institution’s coverup or ignoring of sexual misconduct on campus.” He said he was disappointed that the court had rejected the women’s claims that UC Berkeley had brushed off their individual complaints, but “we’re hopeful that we’ll get to a jury” to decide whether the university can be held to account for its policy.

UC Berkeley spokeswoman Janet Gilmore said the university recognizes that “the responses in these cases could have been better and that we could have done more to keep survivors informed about the status of their investigations.”

Since 2012, Gilmore said, UC Berkeley has improved training and education for students, faculty and staff on issues of sexual harassment and violence, provided more resources for victims, and made sure that they “are kept informed at every step of the investigatory and disciplinary process.”