By Doug Oakley
Bay Area News Group East Bay
An Alameda County judge on Tuesday gave a Berkeley High School academic counselor and a lawyer for a 16-year-old female student one week to settle allegations of sexual harassment before he decides whether to grant a permanent restraining order against the man.
Alameda County Superior Court Judge Taylor Culver told Berkeley High counselor Anthony Smith and the girl's lawyer, Stephen Rosenbaum, to return to court Oct. 26.
Rosenbaum is seeking to make permanent a temporary restraining order against Smith that was granted Sept. 2 based on allegations that Smith caressed the student's inner thigh, spanked her and asked her if she slept naked, among others accusations. The temporary order, which is still in place, prohibits Smith from being within 100 feet of the girl.
"If you don't have something in one week, I'm going to make an order," Culver told Rosenbaum and Smith's lawyer, Kimberly Fanady.
When Culver asked Rosenbaum why the girl did not appear in court, he said, "Contact with Mr. Smith is extremely traumatic for her."
Rosenbaum said he thought he had an agreement with Smith to leave the school on a transfer by Oct. 1. But Smith changed lawyers, and there was no agreement. Rosenbaum had not yet met with the new lawyer before going to court today.
District officials have said privately that while Smith's credential and his union contract allows him to be transferred to one of two middle schools in the district, they don't see that as an option.
Fanady said outside the courthouse today that a permanent restraining order, something that could call into question Smith's ability to stay employed at the school, is not an option.
"We will try to work something out, but we don't think a restraining order is necessary or justified under the law, and we are willing to prove that in court," Fanady said.
Rosenbaum over the summer filed a sexual harassment claim with the school district on behalf of the girl, but the school district ruled that while Smith acted inappropriately, his actions were not sexual harassment.
On Sept. 19, Rosenbaum appealed the school district's ruling to the school board, but the board has not made any determination.
"As of Oct. 18, the school board has not even acknowledged they have received my appeal," Rosenbaum said.
School district and school board officials have refused to comment on the case.
After today's hearing, the girl's mother said that when she brought her daughter's complaint to school officials last spring, "we were led to believe that he'd be gone" by the time school started again in September.
Four Berkeley High parents attended today's hearing.
One of them, Dave Peattie, said his daughter already told Smith she will have nothing to do with him as her counselor.
"What I want to do is make sure he's not seeing any more kids," Peattie said. "There are a fair number of parents waiting to see what happens, but I'm done waiting."
In the meantime, Rosenbaum said he has sent the school district a letter to let them know he may file a lawsuit.