University Could Terminate A Professor For Off Campus Sexually Abusive Conduct Towards Two Women Who Were Not Students

CATEGORY: Client Update for Public Agencies, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers
DATE: Feb 28, 2024

Gopal Balakrishnan was a tenured professor at the University of California, Santa Cruz (UCSC).  In 2006, he became an associate professor in UCSC’s History of Consciousness Department.  In 2015, UCSC granted him tenure.  In 2017, an anonymous letter was published online, accusing Balakrishnan of sexual intimidation, harassment, and assault against women and gender nonconforming people during his time as a UCSC professor.  The letter contained six anonymous firsthand accounts and called on UCSC to act.  Balakrishnan denied the accusations.  UCSC issued a statement that it was aware of the letter and asked individuals with relevant information to contact the Title IX office to assist in its investigation.

The Title IX office received multiple complaints and decided to investigate four of them.  One complaint came anonymously from a poet and academic, referred to as Jane Doe.  Doe did not wish to participate in the investigation.  However, UCSC was able to identify and speak with an eyewitness, a professor referred to as Witness 1.  Doe met Balakrishnan in 2013 at a three-day Poetry Summit in Berkeley.  Doe and Witness 1 stayed at another professor’s house and shared a room.  The professor hosted a party, which Balakrishnan attended.  After Doe and Witness 1 had retired to bed, Doe awoke to find Balakrishnan drunkenly trying to get into bed with her.  She made him leave the room.  Later, she awoke again to find him crawling into her bed naked.  Doe and Witness 1 forced Balakrishnan from the room and barracked the door.

Another complaint came from Anneliese H.  In June 2013, Anneliese participated in her UCSC graduation ceremony.  Two days later, she attended a graduation party at a friend’s off-campus apartment.  The friend had taken a class with Balakrishnan and invited him to the party in an effort to obtain his mentorship.  Anneliese became sick from drinking and was on the verge of blacking out.  Balakrishnan offered to walk her home.  Anneliese experienced memory lapses, and “came to” find Balakrishnan attempting to have sex with her.  She repeatedly told him to leave, yet he persisted.  He eventually left after she pushed him away several times.

Another complaint came from Brian G., a former UCSC student.  Brian reported that in 2009, when he was 18 years old, he attended a party at Balakrishnan’s residence.  At the party, Balakrishnan gave Brian and other attendees cocaine and alcohol.  Balakrishnan then drove Brian home while under the influence of alcohol and drugs.  On several other occasions, Balakrishnan bought him alcohol at local bars, although he was underage.

A fourth complaint came from Patrick M.  In 2015, Patrick M. was a Ph.D. candidate in the History of Human Consciousness Department and Balakrishnan was his advisor.  One day, Patrick and Balakrishnan had a heated discussion about the direction of Patrick’s dissertation.  Balakrishnan became verbally and physically aggressive.  Patrick attempted to leave Balakrishnan’s office, but Balakrishnan blocked his way by lunging at him and grabbing him.  Patrick reported the incident to the department chair.  The department chair assigned Patrick a new advisor and made Balakrishnan promise to have no contact with Patrick.

The investigator found that all four complainants were likely telling the truth.  The investigator found that Balakrishnan’s actions towards Doe and Anneliese were prohibited by the UC Policy on Sexual Harassment.  However, the investigator did not substantiate a policy violation in regards to Doe, because the policy only applied to harassment of “members of the University community.”  The investigator found that Anneliese was still a member of the University community.  Although she had walked in graduation, UCSC had not yet conferred her degree.

The investigation reports were forwarded to UCSC’s Charging Committee, to assess whether there was enough evidence to initiate disciplinary action.  The Charging Committee found probable cause to discipline Balakrishnan for each of the four complaints.  While UC sexual harassment policy did not apply to Doe since she was not a member of the USCS community, the Charging Committee found that Balakrishnan’s conduct towards Doe violated the Faculty Code of Conduct.  The Faculty Code of Conduct stated that faculty members could be disciplined “for conduct which is not justified by the ethical principles, and which significantly impairs the University’s central functions…”  It further stated that “serious misconduct, not specifically enumerated [in the policy], may nonetheless be the basis for disciplinary action…”

On November 14, 2018, Executive Vice-Chancellor (EVC) Marlene Tromp issued Balakrishnan a notice of intent to discipline, recommending dismissal and denial of emeritus status.  Balakrishnan participated in a formal administrative hearing before the Committee on Privileges and Tenure (PT Committee), which was composed of three UCSC professors.  The PT Committee dismissed the Brian G. charges, based on insufficient evidence.  It also dismissed the Patrick M. charges based on a three-year limitations period set forth in the Faculty Code of Conduct.  With respect to Doe, the PT Committee found that Balakrishnan violated the Faculty Code of Conduct.  With respect to Anneliese, the PT Committee found Balakrishnan violated both the UC Policy on Sexual Harassment and the Faculty Code of Conduct.  The PT Committee recommended termination and denial of emeritus status based on the Doe and Anneliese charges.

On August 15, 2019, UCSC Chancellor Cynthia Larive adopted the PT Committee’s findings and recommendations.  On August 23, 2019, UC President Janet Napolitano recommended that the UC Regents dismiss Balakrishnan.  In September 2019, the Regents unanimously voted to dismiss Balakrishnan and deny him emeritus status.

On October 2, 2020, Balakrishnan filed a petition for a writ of administrative mandate, asking the trial court to overturn the Regent’s decision.  The trial court denied his petition.  Balakrishnan appealed.

On appeal, Balakrishnan argued the UCSC lacked jurisdiction to discipline him for his actions towards Doe and Anneliese, because they were not University students.  In the case of Doe, he argued that he could not be disciplined for violating general ethical principles and there was no evidence his conduct significantly impaired the University’s central functions.  In the case of Anneliese, he argued he could not be disciplined for violating the Faculty Code of Conduct, because it was not one of the charges listed in his notice of intent to discipline, so he had not received proper notice.  Finally, he argued that that dismissal and denial of emeritus status was an excessive punishment.

The court of appeal affirmed the trial court’s decision, holding that it was reasonable for UCSC to dismiss Balakrishnan and deny him emeritus status.  The court of appeal found the PT Committee’s reading of the Faculty Code of Conduct was consistent with its plain meaning.  Balakrishnan’s actions towards Doe created an unsafe environment that was not conducive to the sharing of knowledge and values.  It was reasonable for the PT Committee to conclude that other academics and members of the public would not want to engage with UCSC if Balakrishnan’s behavior had no consequences.  Additionally, the PT Committee was composed of three UCSC professors, who would be both knowledgeable of and sensitive to the needs of the department and the university population to which the policy applies.

The court of appeal rejected Balakrishnan’s argument that, in the Anneliese case, he had no notice of the charge that he had violated the Faculty Code of Conduct.  The PT Committee had added the violation of the Faculty Code of Conduct to the Anneliese case.  But in the Anneliese case, the Regents ultimately only disciplined Balakrishnan for violating the sexual harassment policy.  Finally, the court of appeal held that the punishment of termination and denial of emeritus status was not an excessive punishment given that Balakrishnan had egregiously sexually abused two women.

Balakrishnan v. Regents of University of California (2024) 99 Cal.App.5th 513.

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