By Doug Oakley
Bay Area News Group
Allegations that a Berkeley High School counselor caressed a female student's inner thigh last year, spanked her and asked her if she slept naked were not sexual harassment, a school district investigation found over the summer.
Counselor Anthony Smith's behavior was, however, "inappropriate and unprofessional," the district said. And Smith remains in his job counseling other female students at the school.
Following the investigation and findings of the complaint, which the student and her lawyer found lacking, the student obtained a temporary restraining order against Smith and is seeking to have it made permanent.
The order, obtained in Alameda County Superior Court on Sept. 2, tells Smith to stay 100 yards away from the student and her home.
In her April complaint against the counselor, the student alleged Smith put his nose against her neck and told her she smelled good, stared at her chest, put his head on her chest and his hands on her waist, talked about her hair and called her out of class to discuss non-school related topics.
The student's lawyer, Stephen Rosenbaum of Berkeley, said the school district investigation included a three-hour interview of the student with school district lawyers.
In denying the complaint of sexual harassment, the school district sent a letter to Rosenbaum on July 12.
"For the most part, there were no witnesses," the letter said. "Mr. Smith denied most of the allegations and said he did nothing wrong. With regard to the uncomfortable hugs, it could not be determined that Mr. Smith's conduct in this regard was unprofessional or inappropriate because you approached him."
Citing the fact that the district has only one high school that is bound by a union contract restricting transfer of teachers, the district has allowed him to stay.
"However please be assured that he has been given a directive to stay in the counseling area, minimize the need to be on other parts of the campus, and avoid any contact (with the student) both verbal and physical," said assistant superintendent for human resources Delia Ruiz in a Sept. 1 letter to Rosenbaum. "We believe that with these precautions there is little or no chance that any additional offensive contact between the two will occur."
Smith, contacted at the school by phone, declined to comment.
Rosenbaum said he is surprised the school district did not find that Smith sexually harassed the student.
"I am surprised that he has not been terminated or transferred to an administrative position," Rosenbaum said. "And I'm not satisfied that he remains on campus."
Rosenbaum appealed the district's finding of inappropriate behavior, only to receive what he called a "terse and dismissive" letter from Superintendent Bill Huyett denying his appeal.
"We believe that the actions we have taken to date will be sufficient to prevent and deter future harassment," Huyett said.
As for not moving him out of Berkeley High, Huyett said: "The very nature of his position requires him to have regular contact with students, both male and female, to provide counseling. Therefore, we do not believe that your request is reasonable."
Berkeley school district spokesman Mark Coplan declined to comment on the complaint.