Accusers: Sanctions against UI law professor fall short

Accusers: Sanctions against UI law professor fall short

CHAMPAIGN — When a tenured University of Illinois law professor made veiled references to sex during a professional lunch, former law student Prachi Mehta said she wasn't sure what to do other than change the subject.

She didn't report it, unsure it amounted to harassment and fearful of jeopardizing her law career.

A few months later, when she said the same professor rubbed her thigh during an informal meeting in his office, "that, I knew, was a problem," Mehta said.

Mehta, now a Chicago attorney, eventually mentioned the conduct to one of her mentors, former UI law Professor Melissa Wasserman, who said she'd had similar encounters with the professor, Jay Kesan.

Mehta and Wasserman, along with former visiting Assistant Professor Pamela Foohey, filed complaints against Kesan that resulted in an investigation by the UI's Office of Diversity, Equity and Access.

It concluded that Kesan's behavior violated the University's Code of Conduct and the "spirit" of policies prohibiting sexual harassment and misconduct, according to a September 2017 report from the investigation provided to The News-Gazette.

The report recommended the law school take several actions in response, including sexual-harassment training for Kesan and all law faculty and staff and more information about sexual misconduct and how to report it in orientation programs for new employees.

The law school agreed to most of the recommendations and decided that Kesan would not be considered for any endowed professorships until at least August 2019, according to an October 2017 letter from Dean Vikram Amar. Kesan also went without a raise in 2017.

But Kesan remains a tenured faculty member and continues to teach elective classes and have access to students, which upsets the women who lodged the complaints. He received a 1 percent cost-of-living raise this year, bringing his annual salary to $238,183.

The women had initially agreed to work with campus investigators if they could remain anonymous, fearing reprisals if they were identified. But they decided to share their stories publicly now because they say the university hasn't done enough to protect students or discourage similar misbehavior. Foohey characterized it as "a slap on the wrist."

"I wasn't happy with the outcome, but what I was really disappointed with was the College of Law's response," Wasserman told The News-Gazette.

More training and reporting aren't the problem, she said, noting that witnesses quoted in the report and her colleagues had reported similar interactions with Kesan over the years.

"The problem is what to do about it once they surfaced," said Wasserman, now a tenured law professor at the University of Texas. "I don't really see anything in the College of Law's response that was really built in to protect the students from this occurring again."

* * *

The investigation of Kesan, who specializes in intellectual property law, was requested by Jamelle Sharp, then associate dean for academic affairs at the law school, after "multiple complaints" about Kesan's interactions with female professors and students, the report said.

The three women accused Kesan of talking with them during professional interactions about his own sex life and his views on adultery, inquiring about their sex lives, making veiled references to masturbation, inviting them to stay at his apartment in Chicago, rubbing one student's thigh during a meeting in his office, and generally failing to respect their personal space, according to the report.

The investigator also interviewed 38 witnesses — including current and former students and faculty members — who collectively portrayed Kesan as someone who is at times "overly friendly" and "does not edit his thoughts before speaking," tends to stand close to others when talking to them, is "oblivious to normal social cues," and "tests the boundaries of what is appropriate contact and communication but makes it a point to never blatantly cross the line," the report said.

"He engages in conversations of a personal and intimate nature that a reasonable person would know to be inappropriate for the workplace or with colleagues, which causes others to be uncomfortable and to avoid further interactions with him," the report said, noting that female faculty members have warned younger women professors and law students to "avoid certain interactions with him."

Kesan issued a statement this week in response to a News-Gazette inquiry: "It was never my intent to offend anyone. But obviously I did. For that, I am truly sorry, I apologize. Since this was brought to my attention, I have become very careful to make sure that my words and deeds don't offend or cause discomfort to anyone going forward," he said.

In the report, Kesan "denied engaging any colleague or student in a sexual manner," though he acknowledged being accused of sexual harassment before, once for a hug intended as a "friendly gesture."

He said it's "possible that he may have touched someone in a gesture of assurance or comfort," and is "not aware of anyone having construed such a gesture as being sexual in nature, offensive or unwelcome."

He acknowledged he often hugs colleagues, both male and female, with "appropriate brevity and formality," the report said. He said he recognized that he may stand too close to people because of his hearing loss, and "regrets that his cues are misinterpreted by some as an attempt to infringe on their personal space."

Kesan said he did not recall talking to anyone about masturbation and said his invitations to use his Chicago apartment were intended as "friendly gestures" made to both male and female colleagues.

* * *

The investigator, Kaamilyah Abdullah-Span, senior associate director of ODEA, said the behavior didn't rise to the level of sexual harassment or misconduct under university policy, which says harassment must be "severe or pervasive" enough to interfere with a person's ability to benefit from educational or job opportunities or status at the university.

But Kesan's actions violated the spirit of those policies and the University Code of Conduct, which among other things requires employees to "treat others with civility and decency," she wrote.

"(H)e has taken advantage of his status as a professor to create an uncomfortable work or academic environment for a number of female colleagues and students by injecting unwarranted and unwelcome references to sex, as well as unwanted invitations, touching, and ogling, into his interactions with them," the report said.

She recommended that, at a minimum, Kesan be required to undergo sexual harassment training and professional coaching and have a copy of the report and all related documents placed in his permanent personnel file, to be considered whenever he is up for promotions, raises, awards or recognitions.

The report was not initially placed in his file, although the college planned to include "a memorialization of the discussion" on the matter to allow future deans to learn relevant information about the investigation, Amar's letter said. It said the college was advised by the campus legal counsel that the normal practice was for the ODEA to keep a physical copy of the report.

Mehta called that "ridiculous," and Wasserman agreed. Campus spokeswoman Robin Kaler said Wednesday the full report is now in Kesan's file.

Amar, who was hired after the investigation began in 2015, declined to comment on the case, citing employee confidentiality.

But his letter noted that Kesan had been excluded from endowed appointments — which carry additional stipends of $7,000 to $10,000 annually — since the investigation began three years ago, during which time six other professors received them. He will be considered again in August 2019 "or later" only if no additional acts of similar misconduct come to light, the letter said. And he is "on notice" that future violations would result in more severe penalties, potentially including the loss of tenure or employment, the letter said.

Kaler issued a statement saying the university takes "very seriously any findings of violations of the University's more general code of professional conduct, and we care deeply about anyone who has been affected by inappropriate behavior. As soon as the investigative report was finalized, the University took swift steps intended to ensure that no such violations will recur, and continues to be vigilantly focused on maintaining a comfortable learning and working environment for all students, staff and faculty."

* * *

Wasserman and Foohey question why the complaints took more than two years to investigate.

Foohey said she initially complained to the dean's office in 2014, shortly after she received a job offer at Indiana University law school, but no action was taken until Wasserman and Mehta filed their complaints a year later.

Foohey, who specializes in bankruptcy and commercial law, was hired for a two-year teaching appointment as a visiting assistant professor in 2012. Before going on the job market for a tenured post in 2014, she sought advice from other UI professors, and Kesan invited her to meet, Foohey said.

"He quickly steered the conversation into completely inappropriate territory about my sexual preferences, my background in life. He mentioned masturbation and nudity and adultery and clothing and continued talking about inappropriate topics even when I tried to steer the conversation back to the professional matter that we were supposed to be meeting about," she said.

She said she "completely steered clear of him" after that.

She was fearful of complaining until she secured a new job, just before she left Illinois, and even then asked to remain anonymous because she was still getting established in her new position at Indiana. Also, that was before the #MeToo movement took hold, with more women speaking out, she said.

"I didn't want anything from him. I didn't want anything from the university. I wanted to ensure that students were not harassed by him," she said.

After Wasserman and Mehta filed their complaints, she was contacted by ODEA.

Foohey said tenured professors hold power over students and nontenured faculty, because they can affect their careers.

* * *

Mehta was a second-year law student when she enrolled in Kesan's intellectual property class in the fall of 2013. She wanted to a pursue a career in patent law, possibly in academia, and Kesan was one of two UI professors specializing in the subject, along with Wasserman.

As she had done with several other professors, she said she invited Kesan to lunch as part of a college initiative encouraging students to meet with professors outside class. The college reimbursed students for those lunches, she said.

Mehta asked him what he had done to be so successful in law school. Kesan said he had worked hard to graduate first in his class at Georgetown University, studying eight hours a day "without a social or dating life," the report said. He then mentioned that conversations with his friends always revolved around "who got laid," and then told Mehta that he had to rely on "self-help" because he is only human, which she took as a reference to masturbation, the report said.

Mehta said she quickly steered the conversation to a different subject.

She didn't report it at the time because she wasn't entirely sure it constituted harassment, as it was "sort of a veiled reference," she said.

"It was the first time I'd ever been exposed to this kind of borderline inappropriate remark in a university setting," she said. "I was naive."

She said she was also afraid it might damage her standing at the law school or her future career prospects in that field.

But then a few months later, during finals, she said she and Kesan happened to be in the cafeteria at the same time. They walked out together and ended up talking in his office briefly, where he commented that she wasn't eating much. She said she typically didn't eat much during finals because of anxiety, and "that is when he put his hand on my thigh and started rubbing it," to console her, she said. She ended the conversation and left.

A year later, after graduating and taking the bar exam, she met with Wasserman, who had been a mentor. The subject of Kesan came up, and Mehta confided what had happened.

Wasserman had had her own experiences with Kesan. He had invited her to lunch shortly after she was hired at the UI and asked what she considered inappropriate questions, including her views on adultery, she said. Over the next 18 months, he repeatedly invited her to his apartment in Chicago and out for drinks, even though she made it clear she wasn't interested, the report said.

Wasserman said she became increasingly aggressive in her responses, and he stopped.

But she didn't report anything, as she was "brand new" to the UI, not yet tenured, and Kasen was a senior colleague in her field.

Then she heard Mehta's story, and realized "it's not just me," Wasserman said. "I knew it was also affecting students. I felt like I had to say something."

"What we really want is for this to never happen again," Mehta said.

* * *

To Wasserman and the others, the statements by other students and faculty interviewed for the report show a "clear pattern of behavior that made many people uncomfortable," Foohey said.

But legal standards are complicated. Hearing officers have to focus on whether the behavior directed toward the complainant was severe or pervasive, not the accused's conduct as a whole toward others, especially if they're anonymous witnesses, said UI law Professor Matthew Finkin, who specializes in academic freedom and tenure issues. He had not yet read this specific report.

Other legal scholars note that sexual discrimination and harassment cases are difficult to prove because of the high standards required by law. But some also argue that the university doesn't have to use the same strict legal standards in its own internal policies.

At a sexual harassment panel discussion Wednesday at the UI law school, where a friend of the three women asked publicly about the case, law Professor Lesley Wexler said her "strong suspicion" is that there are limitations on what the university can do, unlike private employers, because of administrative processes required by faculty tenure protections.

"I don't know that the law school gets to make its own decisions here," said Wexler, who said "no" when she was asked if she was satisfied with the outcome.

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