Who is going to clean up this mess?

Looks good to the audience
 but someone has to clean up after it

UC’s extraordinary legal battle with ex-Berkeley law school dean

San Francisco Chronicle, Nanette Asimov, 10-11-16, via UC Daily News Clips

A lawsuit filed against the University of California raises the extraordinary question of whether UC’s efforts to hold the former dean of one of the nation’s top-ranked law schools accountable for violating its sexual harassment policy are, in fact, illegal. The claim comes from Sujit Choudhry, a tenured law professor who resigned as dean of the UC Berkeley School of Law on March 10, two days after his former assistant claimed in her own lawsuit that he hugged, kissed and touched her repeatedly against her wishes in 2014 and 2015 and that campus officials did nothing to stop it.

Campus investigators had already determined in July 2015 that Choudhry violated UC’s sexual harassment policy. As punishment, UC Berkeley officials temporarily reduced his pay by 10 percent — from $415,000 to $373,500 — and ordered him to apologize and seek counseling. That punishment was too light, UC President Janet Napolitano decided in March when she learned of the case — the latest in a string of high-profile sexual harassment incidents at UC Berkeley. Anger had reached a boiling point among students, faculty and the public over what critics saw as the school’s long tolerance of offensive behavior. Similar cases had made news across the country, creating a public perception that campuses willing to strongly discipline sexual harassers were good institutions, while those that did too little were not.

Choudhry’s lawsuit, filed Sept. 15 in U.S. District Court in San Francisco, claims that Napolitano’s motivation for stepping up the discipline against him was partly to “try to improve the university’s image, as well as her own.” The day after Choudhry resigned, Napolitano wrote to campus Chancellor Nicholas Dirks. She demanded that Choudhry be barred from campus for the rest of the spring term and ordered that the UC Berkeley Academic Senate determine whether his tenure should be revoked. The final decision is up to the UC Board of Regents, which has revoked tenure from just two Berkeley professors in 25 years.

Choudhry claims in his lawsuit that the Academic Senate is biased against him, noting that after he was sued by his former assistant, Tyann Sorrell, the Senate gave her an award for outstanding service. Choudhry returned to campus this semester but was given no classes to teach. He is seeking an injunction to stop the Senate’s disciplinary proceedings, and unspecified monetary damages. He argues that the university is singling him out for a second round of discipline because of his “race, color and national origin.” Choudhry, 46, is a Canadian citizen of Indian descent.

The suit claims he is being treated more harshly than two other UC Berkeley employees who also were embroiled in sexual harassment scandals last year: Graham Fleming, a former vice chancellor who remains a tenured chemistry professor, and Geoffrey Marcy, an internationally known astronomy professor who quit under pressure last October. Both are white. Some legal experts say Choudhry may well have a case.

“It smacks of double jeopardy,” said Bill Gould, a former chairman of the National Labor Relations Board who taught labor law for 42 years at Stanford University until 2014. He now chairs the California Agricultural Labor Relations Board. Gould pointed to the case of Ray Rice, an NFL running back who faced domestic violence charges in 2014 for knocking his fiancee unconscious in an Atlantic City casino elevator — an incident captured on video. The NFL punished Rice with a two-game suspension. When a second video surfaced revealing more details of the attack, the NFL made the suspension indefinite.

Rice, like Choudhry, argued that a second punishment for the same offense was illegal. In November 2014, arbitrator Barbara Jones, a former federal judge, agreed with Rice and overturned the second suspension. Public criticism poured in — not of Jones, but of NFL Commissioner Roger Goodell for not punishing Rice more severely in the first place. Choudhry’s argument that he is being punished twice “may well be the strong part of his case,” Gould said.

In court papers filed Thursday, UC lawyers say the second punishment is allowed because university policies “expressly allow disciplinary proceedings (against faculty) even after administrative actions have been taken” against the faculty member as a dean. Even if Choudhry wins, his victory could prove hollow, said Stanford law Professor Deborah Rhode, who called the former dean’s effort “career suicidal.”

“What is he thinking?” she asked. “Already his conduct is going to make him a pariah in many law school contexts — and this just fuels the flames.”

Sorrell says in her lawsuit that shortly after Choudhry became dean in July 2014, he began giving her bear hugs, kissing her on the cheek or caressing her multiple times a day. In January 2015, she says, he took her hands, put them on his waist and rubbed them while kissing her cheek. Her suit, which seeks unspecified damages from Choudhry and the regents, says she is a former victim of sexual and domestic abuse and was afraid to tell Choudhry to stop. She worried about losing her job and upsetting her boss because he “had a temper and was known for berating” employees. But she dreaded coming to work and eventually reported the matter. Sorrell has been on leave for more than a year.

Choudhry’s suit claims “no one has ever suggested that (his) conduct was sexually motivated or predatory.” He contrasts that with university findings against former Vice Chancellor Fleming and astronomer Marcy, neither of whom was barred from campus or sent before the Academic Senate’s tenure committee. Choudhry says that’s because Fleming and Marcy are white U.S. citizens, and he is neither. “Is the claim of racial discrimination valid? It may be. Absolutely we see a pattern where men of color are held to higher standards,” said Wendy Leo Moore, author of “Reproducing Racism: White Space, Elite Law Schools, and Racial Inequality.”
The second, stronger punishment against Choudhry “looks arbitrary,” said Moore, an attorney who teaches law and race theory at Texas A&M University. Napolitano “didn’t go back to the white men.” 

But other attorneys said Choudhry will need to prove that Napolitano’s action was motivated by bias. “Just the allegation that here’s two other guys who are white and didn’t get the same penalty — you’re going to have to have more than that,” said Michele Dauber, a Stanford law professor who helped revise her university’s policy on sexual assault and is leading an effort to recall the judge who handed a relatively light sentence to ex-student Brock Turner after he sexually assaulted an unconscious woman. Besides, she said, “Mr. Marcy did lose tenure” because he quit under pressure.
In June 2015, a campus investigation determined that the astronomer sexually harassed female students for nearly 10 years. Marcy, whose planet-hunting success made him a Nobel Prize contender, was let off with a warning. But after Buzzfeed broke the story, astronomers around the world campaigned for his resignation.

Fleming resigned under protest from his vice chancellor job in April 2015, six months after UC attorneys found he had most likely touched his assistant’s breasts, kissed her neck and said he wanted to “molest” her. Since resigning, Fleming “has not faced any further discipline or a second, duplicative investigation,” Choudhry’s suit says.

Legal experts say that is only partly true. After Fleming stepped down, Dirks gave him a new executive job with UC Berkeley’s planned Global Campus in Richmond at his vice chancellor’s rate of pay. Nearly a year later, in the same March 11 letter in which she laid out Choudhry’s new punishment, Napolitano ordered Fleming removed from that job.

Fleming returned to the chemistry department and, like Choudhry, has been given no classes.
UC’s court papers say that Choudhry “utterly disregards the harm he inflicted” on his former assistant Sorrell, so the court should not halt disciplinary proceedings against him. “Preventing UC from disciplining Choudhry would potentially expose students, faculty and staff to a harassing and hostile environment,” the university says. The next court hearing is set for Nov. 3.

Source: http://www.sfchronicle.com/education/article/UC-s-extraordinary-legal-battle-with-9965206.php

State Budget on Track

The latest cash report from the state controller for the General Fund of the state budget shows total revenue for the first quarter of the fiscal year (July-September) is essentially matching the projections made when the budget was enacted last June.

UCLA History: Campus to Be

UCLA's new Westwood campus not yet open for business

Coming Towards Us?

The article below refers to a ruling by the National Labor Relations Board (NLRB) which covers the private sector (including private universities). UC is not covered by the NLRB but instead is covered by the state Public Employment Relations Board (PERB). PERB is not obligated to follow what the NLRB does but the state statute that covers UC has similar language to the statute enforced by the NLRB. So PERB might take a similar view.

Free to tweet: Northwestern's restrictions on football players ruled unlawful

Lester Munson, Legal Analyst, Oct 10, 2016, ESPN
Source: http://www.espn.com/espn/otl/story/_/id/17765516/nlrb-rules-northwestern-restrictions-unlawful

In an unprecedented foray into college sports, the National Labor Relations Board general counsel has declared that Northwestern University must eliminate "unlawful" rules governing football players and allow them greater freedom to express themselves. The ruling, which referred to players as employees, found that they must be freely allowed to post on social media, discuss issues of their health and safety, and speak with the media.

The new rules could apply to the football programs at the 16 other private universities that play in the FBS, including schools such as Notre Dame, Stanford and Baylor -- but not public universities. As the nation's top labor agency, the NLRB governs relations between private employers and their employees, so it has no power over public schools. Its findings on Northwestern became public on Friday.

The ruling does not have force of law on the private schools, but if anyone raised a complaint, the result would likely be similar to the Northwestern case. Coaches and administrators there are no longer able to ban players from posting on social media -- as some high-profile programs have done -- or even regulate what they say. And whereas Northwestern once barred players from talking to any media not approved by the school, it is no longer allowed to do so.

In addition to granting players greater freedoms, the NLRB ruling will offer athletes a clear path to bring their issues before an independent agency outside of the organizations that have historically governed college athletics -- the universities, the conferences and the NCAA.

So while this ruling did not address compensation for athletes, someone could now file a charge with the NLRB asserting that failing to pay players constitutes an unfair labor practice. After all, if the NLRB -- which is led by a five-person board and a general counsel, all appointed by the president -- declared that close monitoring of social media is an unfair labor practice, it is an open question how it would view failure to pay players. Until now, the issue has been contested only in antitrust courts.

The action against Northwestern came in a highly unusual proceeding. It stemmed from a charge filed in August 2015 against the school by David Rosenfeld, an activist labor lawyer with the firm of Weinberg Roger & Rosenfeld in Alameda, California, and echoed the 2014 attempt by Northwestern players to form a union. Rosenfeld alleged that Northwestern was guilty of "unfair labor practices" in its treatment of football players.

Rosenfeld, who had no previous connection with Northwestern, relied on a provision of American labor law that allows anyone, anywhere, to bring unfair treatment of employees to the attention of the NLRB for remedial action. By the same token, if someone were to challenge the NCAA's compensation rules, it would not need to be a player -- it could be anyone.

In response to Rosenfeld's charge, the NLRB issued an "advice memorandum" late last month that described the Northwestern team rules as "unlawfully overbroad." The memorandum was made public last week after ESPN.com filed a freedom of information request for the material.

The jumping off point for Rosenfeld's filing was a decision in 2014 by the NLRB Regional Administrator in Chicago, Peter Ohr, that Northwestern players were employees. Northwestern vigorously disputed the idea at the time and appealed Ohr's decision to the five members of the NLRB.

During the course of the appeal, most of the private universities that would be affected joined Northwestern's effort. They succeeded in obtaining a ruling from the NLRB board members that the agency would not enter into the world of college sports. The board said it did not make sense for the NLRB to take jurisdiction over a potential Northwestern players union since it was the only private school in the Big Ten. It would be chaos, the board reasoned, if Northwestern was governed by the NLRB and the other schools were governed by the laws of New Jersey, Pennsylvania, Ohio, Michigan, Wisconsin, Indiana, Illinois, Iowa and Nebraska.

But even as the NLRB refused to take jurisdiction over the situation, Ohr's decision that the players were employees remained untouched and in effect. In the memorandum made public last week, an associate general counsel of the NLRB stated in a footnote that he "assume(d) that Northwestern's scholarship football players are statutory employees."

Northwestern, in a written statement from vice president for university relations Alan K. Cubbage to ESPN.com, stated that the school "disputes the General Counsel's assumption" that Northwestern's athletes are employees and asserted that they "are students, first and foremost."

In his charge of unfair treatment of employees, Rosenfeld cited the Northwestern team handbook that was a critical exhibit in the 2014 hearing. The handbook includes rules governing the daily lives of the players and makes clear that they would be closely supervised by coaches.

"I obtained the handbook from the NLRB with a Freedom of Information Act request and located the provisions that were unfair labor practices," Rosenfeld told ESPN.com.

The provisions cited by Rosenfeld and found to be "unlawful" included coaches' monitoring of players' social media use and bans on discussion of "any aspects of the team ... with anyone," discussing individual grievances with fellow team members or "third parties," including lawyers and union representatives, and all contacts with the media unless they were arranged by the "athletic communications office."

During the course of the just concluded NLRB proceedings, Northwestern agreed to modify or to eliminate the rules in question. The university's changes and its notice to team members of the new policies resulted in the NLRB dismissing the charge without further hearings or actions. The initial filings by Rosenfeld and Northwestern have not yet been made public.

Under the rule that the NLRB found to be "unlawful," Northwestern coaches and even the university police could "regularly monitor" social media postings made by football players. Former team captain and quarterback Kain Colter, the leader of the players union effort, testified in the NLRB hearing in Chicago early in 2014 that when he posted a photo of himself in Oakley sunglasses that were a gift at a celebrity golf outing, an assistant coach texted him within 10 minutes of the posting that he must remove it. The coach was concerned that the selfie might be construed as an endorsement of Oakley products.

Under the modification offered by Northwestern, the new social media rule provides that postings "can be seen" by Northwestern personnel and cautions against posting "full or partial nudity (of yourself or another) sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, or unlawful activity."

A previous handbook rule on "communications" told players that they must "never discuss any aspects of the team with anyone." Emphasizing the confidentiality of players' physical conditions and planned team strategies, the rule stated, "The team is a family and what takes place on the field, in meetings, or in the locker room stays within this family."

The new rule is limited to a ban on discussion of individual medical conditions and allows players to discuss "on a no-name basis" -- owing to HIPAA, they cannot refer to another player by name -- any "vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players."

Rules governing Northwestern's student-athlete grievance process -- called the "Student-Athlete Rights and Responsibilities (Dispute Resolution Procedure)" in the handbook -- were also deemed unlawful and Northwestern has completely eliminated the procedures. The rules had stated that any "grievance concerning personal rights and relationships" within the team must begin with an appeal to the team's "director of football operations (Cody Cejda), further appeals to Head Coach Pat Fitzgerald and the athletic director, and ultimately a review by Northwestern President Morton O. Schapiro."

The university's elimination of its procedures for player grievances was based on the NLRB's finding that the rule "prohibited discussions with fellow players and third parties concerning workplace grievances."

Another handbook rule told Northwestern players that they "should never agree to an interview (with the media) unless the interview has been arranged by the athletic communications office," and that the players must be "positive when talking about your teammates, coaches and team." Responding to the NLRB's conclusions that the rule was an infringement on player freedoms, Northwestern abandoned the rule, rewriting it to provide that players "may directly speak with members of the media if (they) choose to do so."

In its revised handbook, the school suggested to players that, in interviews, they should "share credit for your success by talking about the contributions of your teammates and use their names." Players were also admonished to remember that "every great running back needs a good offensive line" and "talking about the great work of others shows you have confidence in your own role and the value of your own contributions, so you're not afraid of letting someone else have their moment of glory, too."

Monitoring the Faculty

From the Chronicle of Higher Ed:

As Concerns Grow About Using Data to Measure Faculty, a Company Changes Its Message

Just a few years ago, Academic Analytics, an upstart company providing data on faculty productivity, talked of helping cash-strapped universities save as much as $2 billion by identifying their lowest-performing professors. At many universities, "an awful lot of the scholarly work is being carried by a relatively small proportion of all of the people," said a company founder, Lawrence B. Martin, back in 2013. The value of stanching such waste could be "staggering," Mr. Martin said. Now the ambitions of his decade-old company are now a bit more measured. Following the defection last week of Georgetown University — whose provost explained a decision to drop the university’s subscription by questioning whether Academic Analytics’ data is comprehensive, accurate, or consistently valuable — the company is now dialing back its promises of huge cost savings. Academic Analytics combs various databases to supply universities with details on the research activity of their faculty. The company does not now believe that institutions should use its information to make individual personnel decisions, said a spokeswoman, Tricia Stapleton. Instead, Ms. Stapleton said, data from Academic Analytics should just be one element among many pieces of information that university leaders use to make broad assessments of their schools and departments. Ms. Stapleton said she did not know why Mr. Martin, one of two company founders, would have encouraged individual evaluations back in 2013. Mr. Martin, a professor of anthropology and former dean of the Graduate School at Stony Brook University, was not available for comment, she said...

The Faculty Association at the University of California at Santa Cruz is also challenging its administration’s use of Academic Analytics, said the union’s co-chair, Deborah B. Gould, an associate professor of sociology. Ms. Gould said she and other faculty have seen numerous instances of the company’s database failing to include their papers, awards, and other elements it counts. But a more fundamental objection, she said, is the company’s premise of being able to truly judge a faculty member’s long-term value by making year-by-year tallies of academic output. A researcher might have thin levels of output while working for years on a project that fundamentally changes his or her field, she said. That’s the kind of thing that should be judged by fellow faculty, Ms. Gould said. "It seems strange to me to turn to a data-gathering corporation that actually isn’t thinking about the kind of nonlinear, erratic temporalities of intellectual labor," she said. "We are able to evaluate ourselves on that front, really." ...

Source: http://www.chronicle.com/article/As-Concerns-Grow-About-Using/238034

Nothing like a new idea!

Part 1:


Part 2:


And it's food for thought, too!

UCLA Grand Hotel: Love that Bruin headline!

From the Cambridge online dictionary:

The powers-that-be now have to keep the Grand Hotel "profitable" with activities, even if these are diverted from other venues. Otherwise, they would have made a (gasp!) grand mistake.

From the Bruin article:

...In the upcoming weeks, the David Geffen School of Medicine, Anderson School of Management and Henry Samueli School of Engineering and Applied Science, among other campus units, will hold meetings and academic symposiums at the Luskin Conference Center.

Those booking venue space must demonstrate that their event has academic or educational value and is aligned with UCLA’s mission of education, research and service, according to the conference center.

Source: http://dailybruin.com/2016/10/09/luskin-conference-center-marks-grand-opening-with-mock-symposium/

No expense spared

UCLA History: Two Warrens

On October 19,1945, UC president Robert Gordon Sproul presented the Regents with a proposal for an urgently needed medical school to educate California doctors locally, and received a vote of approval. In 1949, Gov. Earl Warren (left) and UCLA’s first medical school dean, Stafford Warren, inspect the future site.