The Smutty Professor

YOU ARE HEREBY INVITED TO ATTEND the celebration of the completion of our first ASU Law School semester. It will be the "Mother of all 1L Post-Exam Parties" (herein known as the "Mother").

This "Mother" will be held on Wednesday, December 14, 1994, commencing at 11:30 a.m. You, along with approximately 105 1L students, will be spirited away from the loading dock area of the Law Library via private trolley to a variety of Scottsdale restaurant locations. This "Mother" will end at approximately 3:30 p.m. back at the Law Library loading dock.

--an invitation to Arizona State University College
of Law administrators and professors

After the final exams of their first semester, about 100 punchy law students--commonly known as 1Ls--shuffled from stuffy classrooms to await commencement of the trolley party.

A handful of professors joined them later.
The morning was warm and clear. Leo Valverde and his five closest pals--a clique of rambunctious 1L men who called themselves the Supreme Court--wore Santa Claus hats trimmed with mistletoe. Each chugged from his own champagne bottle.

As the trolleys headed up Rural Road toward Scottsdale, students helped themselves to iced beer, miniature bottles of hard liquor and soda. Valverde was tickled to see his favorite professor, Michael Berch, at the trolley's first stop, a Cajun-style restaurant/bar called Baby Kay's.

Berch's reputation as an eccentric and a self-professed party animal preceded him. Valverde and his classmates had heard of Berch's flamboyant teaching style and fondness for Wild Turkey from the first day of law school orientation.

Most of the 1Ls had been in Berch's yearlong Civil Procedure class; they, like students in 25 other first-year law classes before them, spent a good deal of their first semester trying to figure out what the hell the guy was saying.

While his message often requires encryption, most of his students hold Berch to be a brilliant instructor. A Columbia University graduate, he served in the Department of Justice during the Kennedy administration, is a respected litigator and was honored by Arizona State as the university's Distinguished Teacher in 1990.

Now the Supreme Court was intent on finding out if Berch was as fond of Wild Turkey as he claimed.

He didn't disappoint.
1L Sue Kirchen walked into Baby Kay's to get a drink, and saw Berch with Valverde and his friends.

She recalls, "These guys, they had him in a huddle. . . . You could not get near him. All the Supreme Court were around him, all these jock guys, and they were completely revving him up. You should have heard them. They sounded like they were at a football game, they were doing that kind of grunting."

To Kirchen's disgust, she realized that Berch and the students were downing shots of Wild Turkey.

Another 1L--we'll call her Jane--also saw Berch and the Supreme Court doing shots, and then encountered Berch later in the courtyard of Baby Kay's. He stopped her, asking, "Hey, are you in my class?"

She says Berch looked her over and said, "'Well, goddamn, I'd know if you were in my class, 'cause I wouldn't be there. I'd be home fucking you every day!'"

"I was like, 'Whooooaaaa,'" Jane recalls. She tried to avoid Berch after that, with limited success.

"At a couple points, he had come up to me and put his arm around me," Jane says. She recalls the incident "'cause I remember how awful his teeth were, 'cause they were so close to my face. I remember thinking, 'My God, get this man out of my face.'"

From Baby Kay's, the trolleys proceeded to Tinney's, a Scottsdale bar. Some of the professors abandoned their cars and joined the students for the ride.

Jane sat next to professor Jonathon Rose.
"[Rose] was kidding me," she recalls. "He was like, 'Are you sure I can sit here? Are you sure you don't want to sit next to Michael? Oh, here comes Michael--he's gonna sit next to you.'

"So, professor Rose was obviously aware that Professor Berch was saying things to me. It wasn't like I was the only one noticing this."

Jane asked Rose--who was drinking Diet Coke--if this was typical behavior.
"He said, 'You know what? You're seeing him kind of tame, because this isn't even in his wilder days.' I said, 'You're kidding me!' He said, 'No, I've been around him when he's a lot wilder than this. I stay away from him now, 'cause that's only trouble there.'"

Rose did not respond to repeated requests for an interview.
Another partygoer, Brita Long, says Berch was extremely intoxicated. "He couldn't stand, he couldn't talk," she recalls. Long says she saw no sexual harassment, but later heard accounts of it.

At Tinney's, Berch separated from the Supreme Court and roamed around the bar, chatting with students and professors, including Sue Kirchen.

Kirchen says, "I'm not gonna tell you what he said, 'cause it'll make it sound really bad."

She knew something was wrong. Berch was too out of control.
"It was like he had been drugged, like somebody had slipped him something in one of his drinks," Kirchen says. "And I wouldn't be at all surprised if that's exactly what happened."

Kirchen walked outside and found Berch's wife, Rebecca, who was sitting on a trolley, talking with Leo Valverde and some other students.

"[Rebecca] went and helped him. She was shocked. This was not like, 'Oh, he's at it again.' She was completely floored," Kirchen recalls.

Berch never made it to the third stop on the trolley tour, Kamikazi Coast. His wife drove him home.

Despite encouragement from classmates, Jane refused to complain to the law school's administration.

"I can take care of myself. I didn't feel threatened by him. I just thought he was obnoxious. When he would say something, I would just go to the other side of the room," Jane says. But she adds, "In the back of my mind, I was glad that somebody was [complaining]."

Others present that day--students and faculty alike--did complain to law school administrators about Berch's behavior, citing both physical and verbal harassment.

Most of the 1Ls haven't seen Michael Berch since and, to this day, they aren't certain what happened to him. What they do know is that he was gone when school resumed in January, and that he did not teach at ASU at all during 1995, or spring 1996.

But he's returning. His name appears on class schedules for this fall. He will teach two courses, Federal Courts and Conflicts, both electives. He will not teach required classes such as Civil Procedure or Ethics, as he has in the past.

Aside from discussions with faculty and the complainants, ASU has been silent about Michael Berch's alleged behavior and what was done about it.

That silence has fueled a rumor mill that churns with speculation about what exactly did happen, and whether the university's response was appropriate.

Many students believe ASU should have told them exactly what had happened to Michael Berch, but the university's silence was not surprising.

In late 1994, the Arizona State University College of Law was, to say the least, beleaguered.

The law school was still taking hits for its decision to admit paroled murderer James Hamm in 1993. In the spring of 1994, it was revealed that Michael Davis, a graduating law student, had hidden his own murder conviction from the school. His diploma was withheld.

Earlier that year, a letter surfaced in which John Morris, a longtime professor at the law school who is African American, accused the school of failing to recruit African-American professors. The letter sparked protests against the law school.

And the law school continued to be criticized for its role in a federal court case that resulted in a requirement that Arizona prisoners get access to law libraries. ASU's Law School Clinic represented the inmates who sued.

State legislators were muttering that perhaps Arizona didn't need law schools at both ASU and the University of Arizona in Tucson.

The last thing the ASU College of Law needed was a story about a star professor's untoward behavior at a party.

Berch refuses to discuss the matter. So does his wife, Rebecca. The university's general counsel refuses to release copies of complaints and investigative reports in Berch's case, citing confidentiality laws. Arizona State University does have a standard sexual harassment policy that applies to students, faculty and staff university-wide.

And the silence from the College of Law itself is deafening. Dean Richard Morgan refuses to comment, as do the dozen or so administrators and professors contacted.

Many of Berch's alleged victims are quiet as well. They fear their speaking out could have repercussions from faculty, administrators--even future employers.

After all, Michael Berch is an institution in the Arizona legal community. The 61-year-old has been a member of the faculty of the College of Law since 1969, and during that time has also taught bar review courses and litigated for well-known firms such as the now-defunct Meyer, Hendricks, Victor, Osborn and Maledon.

Larry Hammond, who represents Berch in the sexual harassment matter, practiced with him at Meyer, Hendricks. Hammond--who speaks of his personal and professional relationship with Berch--refuses to address the events of the December 1994 trolley party, and its aftermath. He does say that he doesn't think Berch has a drinking problem.

Even Hammond is a former Berch student. He took a bar review course from him in 1974.

"Everybody was one of Michael's students," Hammond says. "You can't swing a dead cat around a bar function without hitting 100 people who were students of his."

That might explain why would-be lawyers are so skittish about saying anything negative about Berch. Of more than 30 current and former Berch students contacted, just a handful would speak at all, and many under the condition of anonymity--even if their comments were generally positive.

But the story has been told--in writing. Documents obtained by New Times indicate that law school dean Richard Morgan wrote to Berch on December 20, 1994, summarizing discussions they had had in the wake of the trolley party. Morgan's letter states:

"It is alleged that you verbally abused a number of women at the celebration; that the verbal abuse was primarily sexual in nature; that you physically touched women in inappropriate and unwanted ways; and that you physically restrained those who sought to remove themselves from your presence."

"You indicated . . . that you have no recollection of your conduct, but that you assume that you behaved very badly and that you are very remorseful and embarrassed about your conduct."

The documents show that on January 23, 1995, Berch entered into an agreement with the College of Law to take a paid medical leave of absence during the spring 1995 semester, and an unpaid leave of absence during the fall 1995 semester.

While admitting no wrongdoing, Berch agreed that he would not regularly visit the campus and would not evaluate any of the students or faculty who had complained about his behavior at the party.

The agreement stipulates that for five years, the university retains the right to terminate him immediately upon finding that he has sexually harassed a member of the ASU student body, faculty or staff.

New Times also obtained the draft of a letter from Berch to the "unknown students" who had complained of his behavior at the trolley party:

"Please excuse this anonymous note, as I do not know who you are. I am writing to offer my deepest regrets over any pain or embarrassment I might have caused you last Wednesday at the Year End party. I do not doubt the accuracy of the reports that the Dean has given me, though I have absolutely no recollection of the incidents. I was inexcusably drunk [and perhaps even unknowingly drugged]. I do not offer this as an excuse for my behavior, but as a reason for my not communicating with you sooner, to offer my sincere apologies."

During his leave of absence, Berch taught law at the University of California-Davis. Associate dean Rex Perschbacher refuses to discuss Berch's employment there--including whether administrators were aware of the reasons for Berch's leave of absence from ASU.

While at UC-Davis, one of the courses Berch taught was Civil Rights and the Law.

Michael Berch's former students describe him as a hunched, wiry redhead--Woody Allen on a tear, with a dash of Andrew Dice Clay.

His lawyer, Larry Hammond, thinks he more closely resembles Abraham Lincoln.
One of Berch's Civil Procedure students from the early '90s takes a moment from his legal research to describe the professor's style:

"He's a Tasmanian devil in class. He's just spinning around and letting loose with these machine-gun bursts of patter, about a subject that is inherently very boring."

Civil Procedure is a course in the lawyer's rules of the road. Every detail is crucial, and there are a lot of details.

The former student continues:
"[Berch] starts out kind of mellow, then gets louder and louder and louder and louder. And he's spraying people in the front row, you know, 'cause there's spittle flying out. And he's just a showman, it's just a wonderful performance.

"It really is law as performance art."
Not quite. Michael Berch's teaching style is an acquired taste. Some students say he left them dazed. "It is impossible to be in a classroom of his and not be engaged," insists Larry Hammond. But one member of the Class of '95--who says she got her lowest law school grade in Berch's Civil Procedure class--begs to differ.

"I either didn't go to class or I did something else during class, because I just could never follow him. I mean, now I'm looking back and I'm not even sure if I ever listened to the guy," she says.

Hammond does admit, "[Berch] gets so wrapped up in his material that I think from time to time that everyone who has been a student has been lost. And my guess is that Michael has been lost on occasion."

Most former students recall Berch's homilies to Wild Turkey, and that he married a former student.

Berch first filed for divorce from his first wife, Geraldine, in 1979. He abandoned that case, but filed again in 1980; the divorce was final in 1981. He then married Rebecca White, Class of '79. Michael and Rebecca co-authored a legal textbook in the mid-'80s.

Rebecca went on to become the state's solicitor general and to teach writing at the law school. She has been considered for a spot on the Court of Appeals.

In March, she was named first deputy to her law school classmate Arizona Attorney General Grant Woods--taking the place of first assistant attorney general Rob Carey.

Barbara Ross, Woods' ex-wife and another member of the Class of '79, recalls that Berch and White dated while White was still in law school.

Aside from her classes with him, Ross stayed away from Berch, whom she recalls had a reputation as a wild man who "enjoyed his cocktail, so to speak."

She says, "He was a guy who liked to socialize with the students, always have parties with them, and I was always very suspicious of that. I just thought that it was an opportunity for problems."

Another of Ross' classmates, recalling Berch's theatrics and taste for alcohol, says, "He is brilliant. He is a genius. But he was just on his way to a crisis."

Jeff Bouma, a local attorney who specializes in environmental law, graduated from the ASU College of Law in 1987.

"I found much of law school to be completely worthless," he says. ". . . Berch's class was one of the few that I thought was worth a damn."

Bouma recalls Berch's dramatic teaching style, and his willingness to help students.

He says, "I would go up to him after class and say I didn't understand this point. He would sit down and he would explain it to me. Sometimes we would go across the street to the Vine [a Tempe bar] and I'd buy him a Wild Turkey or two and I'd have one myself and we would talk about it, and he would talk to me for as long as it took for me to understand it."

Unlike the traditional law professor, Berch doesn't lecture from a prepared text or waste time on impractical, philosophical musings, his students say. Rather, he ad-libs, relaying anecdotes from his experience as a litigator and applying every concept to the practice of law.

The student from the early '90s puts it this way:
"He's not really a professor personality. He's a lawyer. And his usefulness as a professor was conveying that kind of real-world attitude to students."

Not just in substance, but in style, too. The former student's voice lowers.
"In my law office, people swear and yell all the time. It's a really hard-nosed-litigation kind of place, so people are swearing and running up and down the halls yelling and stuff like that, just like Berch would do."

Not everyone was put off by Michael Berch's party performance.
"Did Mike drink occasionally? Did he get out of hand? Yeah," Jeff Bouma says.

". . . but obviously, if you don't like somebody and they make an inappropriate comment, then you remember it."

Bouma writes off Berch's jokes and racy comments as relatively harmless. He says he's said worse things himself.

Sue Kirchen says Berch's detractors "gave the same standard of behavior to a bar as they would to a classroom. And I don't think it was fair for them to expect Professor Berch to behave the same way he would behave in a classroom."

Linda Hirshman has never met Michael Berch or heard specific allegations against him, but she knows professors like him.

Hirshman is a visiting professor of philosophy and women's studies at Brandeis University who has lived in Arizona on and off for years. She is writing a book titled A Woman's Guide to Law Schools, including a section tentatively dubbed the "Lothario Chapter," which will address faculty/student relationships in law school.

Although she doesn't want to delve into individual cases, she speaks in general terms of the typical law school Lothario as a liberal, freethinking, civil rights activist--all descriptions that apply to Berch.

"The Lothario types are always the same," she says. "They're, like, marooned in the '70s, when people started being able to have sex without marriage freely, and this was like the high point of their lives, and they keep reliving this kind of Playboy Mansion fantasy. And they're always talking about booze and sex and stuff like that."

And because they are stuck in a decade of debauchery, Hirshman concludes, "[the Lotharios] don't understand what's wrong. So there's no internal moral reason for them to govern themselves. They think that sex is a positive, joyful, wonderful, hot, exciting, fabulous thing and that there can never be too much of it."

Hirshman doesn't approve of the type of behavior Berch is alleged to have displayed.

"I don't think that women students ought to be harassed--not even in a party off campus, not even where everybody is drinking," Hirshman says. In fact, she adds, "I'm much more of a prude even than that. . . . I would be opposed to [a professor] coming up to a student that he had the previous year and saying, 'Would you like to have a hamburger and a movie?'"

Whether it's lewd talk at a party or a welcomed invitation to dinner, sexual advances from male professors to female students reinforce negative stereotypes, Hirshman believes.

Such behavior, she says, tells female students, "You're nothing but a piece of sexual meat, and I regard you as a thing--not as a person."

On the surface, the Arizona State University College of Law appears to offer an excellent environment for women students. A study published in October 1995 by The National Jurist ranked ASU fifth among 165 law schools--based on the overall percentage of female students and faculty, numbers of women in leadership and law-review positions and a survey of women's perceptions of how they're treated.

One former faculty member got a chuckle out of ASU's high ranking.
"If we're fifth, I'd like to see what the last few on the list look like!" she says.

Of course, The National Jurist didn't know about the Mother of All Post-Exam Parties--or that law school administrators had quietly negotiated a deal with Michael Berch.

Hirshman recently ran into similar problems, she says, when she authored an article on women-friendly law schools for Glamour magazine. (ASU College of Law was not among Hirshman's picks.) She says she received letters from angry female students who told of being sexually harassed at their own law schools.

And misgivings about treatment of women at ASU law school extend beyond one inebriated professor.

Donna Hamilton, who graduated from the College of Law in May, recalls that during her first year, administrators held a luncheon to discuss women's experiences in law school. Associate dean Hannah Arterian and assistant dean Chris Smith met with about 15 female students, Hamilton says.

She recalls, "I walked away from that kind of dissatisfied, because I thought the things that the students brought up in the meeting as being their concerns [were] pooh-poohed by Dean Arterian and Dean Smith."

For example, Hamilton says, she raised a common complaint of female law students: that male professors call on male students most often. That was Hamilton's experience, and she shared it.

"Even if only one person had her hand up, and it was a woman, the professor seemed to look around and wait for someone else, and usually it was a man and they would call on the man," she says. "And I found that frustrating as hell, 'cause if I had a question, I wanted that question answered!"

Hamilton also says she told the administrators that she was offended by one male professor's lecture, because he encouraged a discussion about sex. She says she was told, "Well, you need to be a little thicker-skinned."

Hamilton's complaint isn't as trivial as it seems. The American Bar Association's Commission on Women in the Profession released a report titled Elusive Equality: The Experiences of Women in Legal Education in January. The report concludes: "The hope that gender bias would have disappeared with the increasing number of women faculty and students was not realized. Today, many women still experience debilitating instances of gender bias and discrimination in law schools."

The discrimination, according to the commission, is sometimes blatant, but more often it's more subtle, similar to Hamilton's experience: Male students frequently interrupt a female professor; teaching materials portray women in stereotypical ways; male professors call female students "little girl" or "sweetie"; male students laugh at their female classmates' comments in class.

Another female ASU law student who attended the trolley party says she believes some professors--in an attempt to avoid accusations of sexual harassment--actually ignore women students.

"You see it all the time in the workplace, so it doesn't really surprise me," the student says, "but it is kind of a bummer for women in that you can't get that close with a male professor and spend time with them, 'cause who knows what people will think? . . . Rumors fly like crazy in law school."

Brita Long will enter her third year at ASU law school this fall. She calls Michael Berch a "brilliant, brilliant man," but, no, she didn't register for one of his classes.

"I just have no respect for him as a person," she says. "I don't care how brilliant he is. Maybe that's really shortsighted thinking on my part."

Jane, however, has registered for Federal Courts. She's heard Berch does a fabulous job teaching it. Besides, he's the only professor offering the course.

That bothers some students who believe alternates should be offered for the courses Berch is teaching. Those students are upset that the matter of Berch's suspension was never discussed publicly.

One male student who was at the trolley party says, "I'm not really willing to personally condemn someone for something they did for all eternity. My basic problem with the whole situation is that there never was a dialogue established where there was any sort of recognition of what went on. . . . Students weren't asked, 'Well, would it be more appropriate if there were an alternative section to this class?'"

Brita Long doesn't want to take a class from Berch, but she's not afraid of him. She says, "I've seen him on campus and he looks really sad. He looks like a little boy that got caught.

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