The Catholic University of America

 

NACUA Notes (National Association of College and University Attorneys), February 16, 2016. Volume 14, Number 3

National Association of College and University Attorneys February 16, 2016 | Vol. 14 No. 3

 

TOPIC:

STATE OF AFFAIRS: EMPLOYEE-STUDENT AMOROUS RELATIONSHIP POLICY & PROCEDURE CONSIDERATIONS

AUTHOR:

 Anne D. Cartwright[1]

INTRODUCTION:

In recent years, many colleges and universities have tightened restrictions on employee-student amorous relationships. Harvard University now bans previously discouraged “sexual and romantic relationships” between students and instructors in its primary undergraduate-teaching body[2].

Arizona State University recently expanded its policy--which previously banned only dating between professors and students they supervised--to prohibit dating between professors and students they may “reasonably be expected” to supervise.[3]

 

Historically, and to some extent still, colleges and universities have been hesitant to police these relationships.[4] However, no doubt influenced by the whirlwind of new sexual misconduct guidance, enhanced enforcement efforts, concern for the wellbeing of community members, and increased public attention, many schools are examining the impact of employee-student amorous relationships on students and employees, as well as on institutional integrity, with a particular focus on the institution’s obligations under Title IX of the Education Amendments of 1972 and the Violence Against Women Reauthorization Act of 2013 (VAWA)[5]. The trend is toward carefully considered policies that set clear expectations, procedures, and consequences for violation.

 

 

Recent research suggests that colleges and universities tend to fall into four general camps on the issue of employee-student amorous relationships: the first and second ban--to different degrees--all or some amorous relationships between institutional employees and students; the third discourages such relationships; and the fourth has not taken public action to address such relationships.[6] Review of sample policies reveals nuance within these categories. For example, some policies focus entirely on the status of the individuals (“student” or “faculty”). Others focus principally on whether any “position of authority” exists between individuals at the institution. Some institutions place a high emphasis on disclosure and provide procedures for notifying the administration about employee-student amorous relationships in order to allow administrators to step in and address potential conflicts of interest early and vigorously.

 

This Note will examine several potential approaches and outline considerations for developing policies and procedures that suit the needs and culture of individual institutions of higher education. A checklist of policy development issues is provided in the Appendix.

For purposes of this Note, unless otherwise specified, the term “employee” refers to anyone who works for a college or university. Many institutions focus their employee-student amorous relationship policies on faculty—including anyone in a teaching relationship with students, regardless of title; this group includes tenured and non-tenured professors, adjunct faculty, graduate assistants who teach students, academic and extracurricular program advisors, and other instructors. Other institutions expand the scope of those policies to include all institutional employees (administration, staff, student employees) and even volunteers, particularly those employees or volunteers who are in a position of authority over students.

In discussing “amorous relationships,” this Note refers to relationships that are sexual or romantically affectionate in nature and not otherwise illegal (because they occur between an adult and a minor or involve sexual harassment or interpersonal violence).

 

DISCUSSION:

  1. Institutional Risk Associated with Employee-Student Amorous Relationships

     

    Though some individuals may report positive experiences with employee-student relationships, these relationships—and their tendency to turn negative—carry indisputable risks to students, employees, and broader higher education communities.[7]

     

    Of substantial concern for many institutions is the risk that—from an ethical or legal standpoint— employee-student amorous relationships may lack effective student “consent” because of inherent power differentials between employees and students.[8] Research indicates that a large percentage of faculty members and students view such relationships as unethical—at least where a student is within the faculty member’s zone of supervisory authority (e.g., the student is in the faculty member’s class, the student works for the faculty member, or the faculty member is on the student’s dissertation-review committee). [9]

     

    And, while the issue of consent is likely to turn on the facts of a particular situation, one court (quite possibly standing alone) has indicated that institutions play an extended role in protecting students from unwelcome employee advances.[10] In Schneider, the court noted that the nature of faculty- student relationships creates an institutional fiduciary duty to protect students from sexual misconduct.

     

    The U.S. Department of Education (Department) has recently cast a suspicious eye on employee- student amorous relationships, signaling to schools that the Department believes such relationships are more likely than other relationships to lead to sexual misconduct. Though employee-student amorous relationships in higher education are not expressly forbidden by Title IX or VAWA,[11] the Department has issued words of warning about them in addressing the issue of consent. In its April 2014 Questions and Answers on Title IX and Sexual Violence,[12] the Department states a presumption that relationships between students and any college or university employee lack consent:

    In cases involving a student who meets the legal age of consent in his or her state, there will still be a strong presumption that sexual activity between an adult school employee and a student is unwelcome and nonconsensual.[13]

     

    In recent correspondence concerning Title IX investigations, the Department has echoed this position, indicating that sexual conduct in an instructor-student relationship is more likely than others to deprive students of the ability to participate in or benefit from educational programs.[14]

     

    Further, employee-student amorous relationships pose risks to academic and operational integrity. These relationships create conflicts of interest that call into question the legitimacy of supervisory decisions made in that context—including grades, student hiring, and recommendations.[15]

     

    Institutions should also consider the potential for tarnished institutional reputation, loss of collegiality, and a perception of bias toward certain students.[16] Accreditors, funding entities, and others upon whose approval higher education institutions depend may have a concern that permitting these relationships without safeguards indicates an absence of the integrity required of higher education institutions.

     

    Finally, employee-student amorous relationships also carry administrative costs. Regardless of the policy positions they take, schools must manage conflicts of interests—as well as the potential for sexual harassment and retaliation charges—when schools become aware of these relationships.

    In the wake of recent attention to the risks of employee-student amorous relationships, a growing number of institutions are revising policies and procedures in an attempt to manage the potential negative impacts of these relationships.

     

  2. Policy Approaches

     

    The trend leans decidedly toward enacting policies governing employee-student amorous relationships. Such policies educate employees, students, and administration about institutional expectations and individual responsibilities. They can clarify procedures should a relationship arise. They inform employees about the potential career implications and other consequences of such relationships, including discipline and sexual misconduct claims. They can alert students to the possibility that an amorous relationship with an employee can negatively impact educational experiences or programs, including occasionally through behavior that crosses the line into sexual misconduct. By notifying parties about the potential pitfalls of such relationships, employee-student amorous relationship policies may help avoid institutional sexual misconduct claims and ensure fairness to students and employees.[17]

     

    Still, in deciding whether and how to regulate these relationships, institutions of higher education should give thought to the individual rights of those to whom the regulation applies. Though untested, employee-student amorous relationship policies could be found to infringe on certain rights—under federal or state constitutions—including freedom of speech, freedom of association, equal protection, and constitutionally-protected privacy.[18] Of course, these issues are of particular interest to public institutions charged with respecting constitutional rights. However, private institutions may—and typically do—also consider the extent to which their mission and culture call for balancing individual rights with college and university interests.

     

    Beyond constitutional considerations, institutions contemplating employee-student amorous relationship policies should stay abreast of federal and state law and guidance on related issues. For example, collective bargaining concerns may come into play in regulating and disciplining employee misconduct. Enforcement procedures must not require access to personal social mediaaccounts in violation of state privacy laws. And schools must draft all policies in light of nondiscrimination laws, avoiding implications of gender or marital-status discrimination.[19] Though current statutes and case law do not squarely address these relationships, they may soon do so through rapidly evolving legislation, litigation, and policy surrounding campus sexual misconduct.

     

    Also, some colleges and universities may elect to limit the extent of their policies and procedures because they are concerned about enforcement. One challenge to having written policies and procedures on employee-student amorous relationships is that schools must follow and enforce them. Institutions that fail to do so open doors to regulatory, discrimination, and reputational concerns. Schools may limit the extent of their policies and procedures to minimize enforcement obligations; if a school is not prepared to enforce a policy and dispense discipline for violations as written, it may be best advised to have no policy at all. (Enforcement approaches are discussed further below.)

     

    Those colleges and universities that do adopt policies limiting employee-student amorous relationships take approaches that fall on a continuum from complete prohibition to simple discouragement.[20] These approaches, in addition to the decisions not to adopt any policy or to impose notification requirements, are discussed below.

     

    1. Bright-line bans

       

      Bright-line tests—which bar amorous relationships between any college or university employee and any student, regardless of whether there is a supervisory relationship between the employee and the student[21]—are easy to apply. The only decisions that need to be made in deciding whether such policies have been violated are (1) determining whether the parties fall within the definitions of those prohibited from engaging in amorous relationships, and (2) whether they engaged in an amorous relationship.

       

      But complete bans on employee-student amorous relationships carry administrative consequences different from other types of policies. Such relationships are bound to happen regardless of rules against them.[22] Further, social science research indicates that many employees and students oppose outright bans.[23] An outright prohibition with no realistic room for flexibility may force employees and students to hide their relationships, leaving schools with fewer opportunities to monitor or guide them. And because bright-line prohibitions, in order to be effective, often carry bright-line penalties, institutions may be called to impose severe discipline or even terminate valuable employees who engage in prohibited relationships without regard to circumstances.

       

    2. Limited prohibition and limited prohibition plus discouragement

       

      In contrast to complete prohibitions on employee-student amorous relationships, many institutions prohibit those relationships only in some circumstances; some of those institutions also discourage such relationships in other circumstances. While some colleges and universities in this category identify relationships of concern through readily discernable individual status labels (“employee,” “faculty,” or “student”), the majority focus on the potential for harm by identifying relationships of concern—typically according to the presence or absence of supervisory or evaluative authority.[24] While this latter approach commonly prohibits most employee-student amorous relationships, it leaves open the possibility that the institution will not prohibit relationships in which there is no realistic possibility of conflict of interest or abuse of authority. For example, the institution might not prohibit a relationship between an employee and a student who work or learn in completely different parts of a large institution.

      Other institutions are shifting towards a brighter-line approach to at least portions of their bans (for example, by prohibiting all relationships with undergraduates but allowing broader discretion with graduate students).[25] Schools that do prohibit employee-student amorous relationships in some contexts often strongly discourage such relationships in others.[26]

       

    3. Discouragement

       

      Some schools do not expressly prohibit any employee-student amorous relationships, though they point out potential hazards and may provide procedures for avoiding conflicts of interest.[27] This approach perhaps best aligns with the American Association of University Professors’ policy statement on “Consensual Relations between Faculty and Students,” which warns professors of the challenges attendant to these relationships and emphasizes the need to avoid conflicts and favoritism.[28]

       

      Opponents of this type of policy emphasize that it does not mitigate the risks of employee-student amorous relationships and, indeed, may magnify them. Without disciplinary mechanisms, discouragement policies wield less power to (a) eliminate employee-student amorous relationships and (b) respond to their effects (absent blatant conflicts or sexual misconduct that can be addressed under other policies). The policies acknowledge potential conflicts and risks, but do not take steps to protect students, employees, or third parties. Such policies can leave a school with little response to one who complains about an employee-student amorous relationship other than to say that such relationships are discouraged.[29]

       

      Nevertheless, institutions may determine that discouragement works best for them. They may be limited by constitutional, statutory, or labor concerns in their ability to regulate personal relationships—or they may choose not to regulate those relationships as a matter of institutional philosophy and resource allocation. They may determine that discouraging employee-student amorous relationships at least draws attention to their attendant risks so that individual students and employees are empowered to make more informed decisions.

       

    4. No policy

       

      Though risk-averse lawyers will argue for the clarity of a freestanding policy, some institutions affirmatively choose not to have one.[30] Avoiding a written policy arguably allows flexibility in handling situations on a case-by-case basis. And some institutions may determine that the key areas of concern surrounding employee-student amorous relationships can conceivably be covered by carefully crafted conflict-of-interest, nepotism, social media, minors, and sexual misconduct policies. If used, this approach is likely best employed by smaller institutions where employee-student activity is more visible in the smaller community.

       

    5. Notification and conflict-avoidance procedures

       

      Regardless of whether they prohibit or discourage employee-student amorous relationships, many colleges and universities have protocols for notifying administration and addressing conflicts of interest in the event such a relationship arises.[31] Failure to provide notification procedures raises the specter of creating a “don’t ask, don’t tell” culture around these relationships.[32] Even institutions that elect not to limit employee-student amorous relationships should consider whether to impose notification requirements in order to monitor for potential conflicts. Though notice places an institution in a position where it must manage potential policy violations and address conflicts, it also puts the institution in a position to mitigate potential risks and unfairness.

  3. Policy Development and Implementation

     

    1. Development

       

      As with any policy issue, the approach each institution takes to employee-student amorous relationships will reflect the needs and culture of the institution. Factors that could come into play include: the size of the institution (more students and programs means more difficulty in handling matters on a case-by-case basis, but also more room for relationships that may not create conflicts of interest); the presence of graduate vs. undergraduate students; demographics like the predominant age and prior experience of students in workplace environments; religious or other mission-based considerations; and the significance to institutional culture and structure of avoiding infringement on individual rights (concerns that may be amplified by constitutional principles, especially for public entities). Careful consideration of the issues surrounding employee-student amorous relationship policies will lead to clearer, more readily implemented policies tailored to individual institutions. The checklist provided in the Appendix of this Note outlines those issues and highlights options for colleges and universities in crafting policies best suited to their cultures and settings.

       

      In addition to the numerous factors described in the above paragraph and attached Appendix, institutions that elect to develop employee-student amorous relationship policies must be aware of potential overlap with other institutional policies. For the sake of clarity in handling Title IX/VAWA sexual misconduct charges that may stem from employee-student amorous relationships, institutions should explain in employee-student amorous relationship policies (and/or Title IX/VAWA sexual misconduct policies) when complaints will be handled under the institution’s Title IX/VAWA policies and procedures (e.g., when complaints allege sexual misconduct—as opposed to, for example, when complaints by third parties allege a conflict of interest leading to favoritism in grading). Similarly, to the extent applicable, colleges and universities may elect to incorporate or cross-reference existing conflict of interest, nepotism, social media, minors, or other related ethical and conduct policies and procedures.[33]

       

    2. Implementation

       

      1. Approval procedures

         

        Institutions should consider constraints on their ability to implement new or revised employee- student amorous relationship policies. Public institutions in particular may need approval through state law processes. Evolving state law and policy in the area of campus sexual misconduct could also impact this process.

         

        Most institutions will need to bring policies affecting employees, particularly faculty, (and sometimes all new institutional policies) to their employee or faculty governance bodies. Recent experience suggests that most faculty members will not resist policy changes in this area and many, in fact, are prone to endorse enhanced clarity. For example, following a well-publicized student sexual harassment complaint, academics at Northwestern University reportedly endorsed the institution’s shift to a policy prohibiting relationships between faculty and all undergraduates as well as between graduate students and faculty who supervise them.[34] Though Arizona State University professors declined to approve a policy that would have banned all amorous relationships between professors and students absent an exemption granted by the provost, the professors reportedly did vote 76 to 11 to ban professors from dating students over whom they “can be reasonably expected” to have authority.[35]

         

      2. Dissemination

         

        Once approved, disseminating information to relevant parties is critical to the success of any policy. Institutions should make their policies widely and readily available. Perhaps most obviously, they should appear in employee and faculty policy materials and handbooks. Reference to such policies should be integrated into now-standard mandatory trainings on the topic of workplace harassment for all employees.

         

        Institutions should consider placing these policies in student policy materials and handbooks as well. Though schools may prefer not to highlight the possibility of employee-student romance to students (and parents), policies that explain the challenges and consequences of such relationships as soon as students enter the community can serve as significant educational and deterrence tools.

         

        Also, colleges and universities should consider incorporating relevant messages about employee- student amorous relationships into training programs. Given the Department of Education’s presumption against student consent, admonitions on this issue should factor into employee Title IX/VAWA sexual misconduct training at a minimum. By training students, employees, faculty members, supervisors, and administrators on expectations surrounding employee-student amorous relationships, schools can raise awareness and, thus, increase the likelihood that their communities will follow their employee-student amorous relationship policies.

         

      3. Enforcement

         

        Institutions that implement employee-student amorous relationship policies and procedures must prepare to enforce them. First, to the extent schools opt to prohibit—and/or demand disclosure of—certain behavior, they should clarify enforcement processes, any reporting procedures, and potential discipline in those policies or related procedures.[36] The checklist provided in the Appendix to this Note discusses these considerations in more detail, providing examples of various approaches.

         

        Second, once they have written their policies, institutions must take action to enforce them. A college or university’s failure to enforce can create an appearance of impropriety and increase liability risks. More importantly, it denies the institutional community the protections that the school offered in creating the policy in the first place. Institutions should provide appropriate enforcement resources—for example, by allocating time for relevant employees to address concerns, monitor disclosed relationships, and track any patterns of misconduct. Schools should also take steps to ensure compliance with process requirements and consistency in discipline.

CONCLUSION:

In light of the risks associated with employee-student amorous relationships, colleges and universities need to consciously consider the extent to which their policies and procedures should expressly address those risks. Institutions should make decisions about these policies and procedures in light of unique institutional circumstances, cultures, and regulatory concerns. Once these decisions have been made, schools should educate their constituencies about related policies and procedures, and enforce them.

 

Appendix

 

Employee-Student Amorous Relationship Policies[37] Options and Issues Checklist[38]

 

 

ENDNOTES:

[1] Anne D. Cartwright is a NACUA member and a member of Husch Blackwell LLP’s Education team. Annie provides outside general counsel, legal compliance auditing, investigation, litigation, and policy/training services to a variety of colleges and universities. She gratefully acknowledges the contributions of fellow Husch Blackwell team members, as well as NACUA staff and committee members, who shared their time and talents in editing this Note.

[2] Ashley Southall & Tamar Lewin, New Harvard Policy Bans Teacher-Student Relations, N. Y. Times, Feb. 5, 2015

[3] Arizona State University, ACD 402: Romantic or Sexual Relationships Between Faculty and Students (March 2015)

[4] See Tara N. Richards, Courtney Crittenden & Tammy S. Garland, An Exploration of Policies Governing Faculty-to-Student Consensual Sexual Relationships on University Campuses: Current Strategies and Future Directions, 55 J. Coll. Student Dev. 337, 339 (2014) (“Indeed, in 2004, . . . only 57% of four-year universities had a consensual amorous relationship policy.”).

[5] In this Note, “sexual misconduct” refers to the sexual harassment, sexual violence, domestic violence, dating violence, and stalking addressed in Title IX and VAWA.

[6] See Richards et al., supra note 3, at 338, 341-42 (using a sample of 55 universities (including state flagships, state regional, and the eight Ivy-League institutions), outlining trends in faculty-student amorous relationship policies across the nation).

[7] See, e.g., Kevin Kiley, Relationship Problems, Inside Higher Ed (Aug. 30, 2011)(noting concerns of sexual harassment, impaired institutional integrity, and even instances of murder and suicide related to faculty-student amorous relationships).

[8] See generally American Association of University Professors, Consensual Relations between Faculty and Students 149 (11th ed. 2015) (“The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect”); Richards, supra note 3, at 338 (“Because the educational environment has a pre-established hierarchy where the student is subordinate to the professor, it remains questionable as to whether this inherent lack of equity may prevent full consent.”). But see Sherry Young, Getting to Yes: The Case Against Banning Consensual Relationships in Higher Education, 4 J. Gender & L. 269, 270 (1996) (“The notion that (predominantly male) administrators should feel free to ignore a [female student’s] own perceptions and stated preferences about her life and her exercise of her own sexuality is deeply anti-feminist”); Richards, et al., supra note 3, at 341 (noting that outright prohibitions on faculty-student amorous relationships have been criticized for implying that students are not capable of making informed decisions).

[9] See Richards et al., supra note 3, at 339.

[10] See Schneider v. Plymouth State College, 744 A.2d 101, 105-06 (N.H. 1999) (“The relationship between students and those that teach them is built on a professional relationship of trust and deference, rarely seen outside the academic community. As a result, we conclude that this relationship gives rise to a fiduciary duty on behalf of the defendants to create an environment in which the plaintiff could pursue her education free from sexual harassment by faculty members.”); see also Barbara A. Lee, Student-Faculty Academic Conflicts: Emerging Legal Theories and Judicial Review, 83 Miss. L.J. 837, 843-44 (2014) (noting limited and inconsistent rulings on this point).

[11] See, e.g., Escue v. Northern Oklahoma College, 450 F.3d 1146, 1153-54 (10th Cir. 2006) (finding that the college’s knowledge that a professor had dated two non-traditional students near his own age, along with a single incident of inappropriate touching and name calling, did not constitute “actual knowledge” that the professor posed a substantial risk of sexually harassing students so as to create liability under Title IX).

[12] Office for Civil Rights, U.S. Dept. of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014)

[13] Id. at 1 n.3 (defining “schools” as “recipients of federal financial assistance that operate educational programs or activities. For Title IX purposes, . . . at the postsecondary level, the recipient is the individual institution of higher education.”).

[9] See, e.g., Office for Civil Rights, U.S. Dept. of Educ., Letter Concerning Investigation of Southern Methodist University 3 (2014), (“In determining whether [students have been denied or limited in their ability to participate in or benefit from educational programs and activities on the basis of sex], OCR examines all the relevant circumstances from an objective and subjective perspective, including: . . . the age, sex and relationship of the individuals involved (e.g., professor-student or student-student); . . . .”); Office for Civil Rights, U.S. Dept. of Educ., Letter Concerning Investigation of Harvard University 3 (2014)(using similar language but referencing a “teacher- student” relationship).

 

There is an argument to be made that those students who do not participate in employee-student amorous relationships suffer discrimination through favoritism toward students who do participate in them. See University of Iowa, Operations Manual: Consensual Relationships Involving Students, (Jan. 2014) (“[S]uch relationships may harm or injure others in the academic or work environment. Relationships in which one party is in a position to review the work or influence the career of the other may provide grounds for complaint when that relationship gives, or creates the appearance of, undue access or advantage to the person involved in the relationship, or when it restricts opportunities or creates a hostile environment for others.”). Analogizing to workplace discrimination case law, one may expect this argument to be rejected by courts—although the current regulatory environment does not always track expectations. Though apparently untested, third-party students could conceivably bring breach-of-contract claims arising from perceived unfair grading or treatment resulting from employee-student amorous relationship conflicts of interest.

[15] See, e.g., Wesleyan University, Policy on Consensual Relationships, Staff Handbook 2014-2015, (“Even where the relationship is consensual, there is significant potential for harm when there is an institutional power difference between the parties involved . . . . Such relationships may cast doubt on the objectivity of any supervision and evaluation provided.”); Office for Equal Opportunity, Yale University, Policy on Teacher-Student Consensual Relations, Policies(last visited Jan. 17, 2016) (“[A]ny such relationship jeopardizes the integrity of the educational process by creating a conflict of interest and may impair the learning environment for other students.”).

[16] See Paul M. Secunda, Lawrence’s Quintessential Millian Moment and Its Impact on the Doctrine of Unconstitutional Conditions, 50 Vill. L. Rev. 117, 139-40 (2005)

[17] See Richards et al., supra note 3, at 339-40 (citations omitted) (indicating that faculty-student amorous relationship policies help avoid the perception of unfairness that arises where faculty members are allowed to teach or grade student paramours).

[18] For a fuller consideration of constitutional issues implicated by employee-student amorous relationship policies (albeit consideration predating the context of the current Title IX/VAWA regulatory climate and recent same-sex marriage case law), see Secunda, supra note 16, at 122-23 (concluding that case law addressing constitutional issues surrounding criminal sodomy laws “should reinvigorate faculty members’ rights to privacy and intimate association” and arguing that complete bans on—as opposed to interest-balancing approaches to—faculty-student amorous relationships at public universities are unconstitutionally overbroad). See generally Kerry Brian Melear & Mary Ann ConnelI, Paramour Favoritism in the College Workplace, NACUANOTE, Vol. 10, No. 10 (May 30, 2012) (noting that workplace policies prohibiting paramour hiring implicate free association and privacy rights of employees).

[19] See, e.g., University of Texas at El Paso, Consensual Relationships Policy 1 (Aug. 28, 2015), (“This policy is applicable regardless of the gender of the University employee with supervisory, teaching, evaluation or advisory authority, or gender of the employee, student or student employee who is directly or indirectly being supervised, taught, evaluated, or advised.”).

[20] See generally Richards et al., supra note 3, at 341-42 (2014).

[21] See, e.g., Human Resources, Willamette University, Consensual Relationship Policy (Spring 2013),(barring “consensual romantic or sexual relationships between any Willamette employee (faculty, administrator or staff) and any Willamette University Student”); Denison University, Policy on Inappropriate Relationships between Students and Faculty, Faculty Handbook 109 (Oct. 5, 2015),(stating that “it is incumbent upon faculty not to engage” in romantic or sexual relationships with students, and that doing so is “considered a basis for disciplinary action”).

[22] See Richards et al., supra note 3, at 350 (“Even the most effective policy will not fully eliminate relationships between faculty and students.”).

[23] See id. at 341 (citation omitted).

[24] See, e.g., Office of Equity & Inclusion, Oregon State University, Consensual Relationships Policy (last visited Jan. 16, 2016); Office of the Provost, Virginia Commonwealth University, Employee-Student Consensual Relationship-Interim (April 13, 2015)

[25] See, e.g., Dartmouth College, Policy on Instructor-Student and Staff-Student Consensual Relationships, Handbook of the Faculty of Arts & Sciences 29-30 (Dec. 2014), (prohibiting instructor relationships with all undergraduates and with graduate students over whom an instructor has or is likely to have academic responsibility in the future; also prohibiting staff relationships with students whom the staff members advise, mentor, evaluate, or oversee as part of student organization management; and cautioning that “[e]ven where particular situations are not prohibited by this policy, Instructors and Staff members should avoid relationships that would cause observers to question the Instructor’s or Staff member’s professional judgment”); Agnes Scott College, Employee Handbook, Consensual Sexual Relationships (January 1, 2013), (prohibiting sexual relationships between a faculty member and (1) a currently enrolled undergraduate or (2) a graduate student in the same program or supervised, evaluated, or taught by the faculty member).

[26] See, e.g., Loyola Marymount University, Faculty/Staff-Student Dating Policy, (last visited Jan. 17, 2016) (“Loyola Marymount University prohibits consensual relationships of a dating, intimate and/or sexual nature between faculty or staff and any Student with whom the faculty or staff member is in a direct/power relationship. Furthermore, the University strongly discourages these consensual relationships even when no power relationship exists.”); University of North Carolina, Improper Relations between Students and Employees (Mar. 15, 1996) (prohibiting employee-student amorous relationships (1) with students below the age of eighteen and (2) in official supervisory or evaluative contexts; also noting potential challenges in employee- student amorous relationships outside of those contexts, and encouraging faculty to “be most careful” to avoid conflicts).

[27] See, e.g., University of Kentucky, UK Ethical Principles and Code of Conduct (last visited Jan. 17, 2016) (“The University strongly urges those individuals in positions of authority not to engage in conduct of an amorous or sexual nature with a person they are, or are likely in the future to be, in a position of evaluating. The existence of a power differential may restrict the less powerful individual's freedom to participate willingly in the relationship. If one of the parties in an apparently welcomed amorous or sexual relationship has the responsibility for evaluating the performance of the other person, the relationship must be reported to the dean, department chair or supervisor so that suitable arrangements can be made for an objective evaluation of the student or employee.”); Luther College, Discriminatory and Harassing Conduct Policies and Procedures (May 4, 2010) (“All faculty, staff, student employees, and others whose positions may create a real or perceived power differential in romantic and/or sexual relationships are strongly discouraged from entering into such relationships.”).

[28] The American Association of University Professors policy statement on “Consensual Relations between Faculty and Students” states:

Sexual relations between students and faculty members with whom they also have an academic or evaluative relationship are fraught with the potential for exploitation. The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect. Even when both parties initially have consented, the development of a sexual relationship renders both the faculty member and the institution vulnerable to possible later allegations of sexual harassment in light of the significant power differential that exists between faculty members and students.

In their relationships with students, members of the faculty are expected to be aware of their professional responsibilities and to avoid apparent or actual conflict of interest, favoritism, or bias. When a sexual relationship exists, effective steps should be taken to ensure unbiased evaluation or supervision of the student.

American Association of University Professors, Consensual Relations between Faculty and Students 149 (11th ed. 2015).

[29] See generally Richards et al., supra note 3, at 340 (citation omitted).

[30] See, e.g., Northeastern State University, Employment Handbook: Workplace and Employee Relations, (last visited Jan. 17, 2016) (“While the University does not intend to regulate the social interactions or relationships of its employees, any behavior that constitutes harassment will not be tolerated

. . . .”).

[31] See Richards et al., supra note 3, at 346 (noting that 44% of the institutions surveyed expressly required reporting of faculty-student amorous relationships).

[32] See generally Melear & Connell, supra note 18 (noting that workplace policies against hiring paramours tend to be difficult to enforce and “promulgate a culture of rumor and suspicion around office relationships which may be more harmful than helpful”); Richards et al., supra note 3, at 348.

[33] For example, Princeton University’s “Sex Discrimination and Sexual Misconduct” policy states: A sexual or romantic relationship[] involving individuals in a teacher-student relationship . . .

is not, in and of itself, sexual misconduct as defined by this policy and will not be investigated or adjudicated under this policy. Such an interaction may be a violation of another University policy and subject to separate disciplinary procedures.

Princeton University, Sex Discrimination and Sexual Misconduct(last visited Jan. 17, 2016) (referencing separate “Consensual Relations with Students Policy” and “Nepotism and Personal Relationships in the Workplace Policy”).

[34] See Robin Wilson, In Sex-Harassment Cases, No One Is Happy With College’s Response, Chron. of Higher Educ., May 12, 2014

. [35] Andy Thompson, Arizona State Professors Expand Ban on Dating Their Students, Chron. of Higher Educ., Jan. 27, 2015,

[36] See, e.g., Knox College, Statement on Romantic or Sexual Relationships Between Students and Knox College Employees (last visited Jan. 17, 2016) (“Romantic, dating or sexual relationships between faculty or staff members and Knox students . . . will be considered misconduct . . . . [F]ailure to comply with the required notification, removal of supervisory or evaluative authority or management plan is also considered a violation of this Policy. If any faculty, staff, or student worker of Knox College is found to be in violation of this Policy, disciplinary action will be taken on a case by case basis and in accordance with appropriate disciplinary procedures contained in relevant handbooks, policies, procedures, practices, or contracts. Disciplinary actions may include but are not limited to written warnings, loss of privileges, mandatory training or counseling, probation, suspension, demotion, and termination of employment, including revocation of tenure.”).

[37] Though many of these checklist options are discussed in terms of what may be included in “policies,” depending on the practices of an individual institution, some may be more appropriately framed as “procedures,” “protocols,” or “guidelines” that would not be incorporated into official policy documents.

 

[38] The University of Iowa, a pioneer in the area of fully fashioned faculty-student amorous relationship policies (with its first version appearing in 1987), prohibits amorous relationships between instructors and students in an instructional context. Its policy covers most of the ground discussed below, and may serve as a useful backdrop for discussions surrounding such policies on other campuses. SeeUniversity of Iowa, Consensual Relationships Involving Students, (last visited Jan. 17, 2016).

[39] Some institutions include these policies under the rubric of sexual misconduct policies, arguably indicating that complaints about violations should be handled through procedures specific to such misconduct. See, e.g.,Occidental College, Occidental College Sexual Misconduct Policy; Prohibited Relationships by Persons of Authority(last visited Jan. 17, 2016).

[40] For example, the introduction to Colorado State University’s “Consensual Relationships” policy states:

The University is committed to the principle that its personnel shall carry out their duties in an objective and ethical fashion and in an atmosphere in which conflicts of interest are identified and

managed. The University does not interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the University . . . .

When both parties have consented at the outset to a romantic, intimate, or sexual relationship, this consent does not remove grounds for a charge of conflict of interest, sexual harassment, or violation of applicable parts of [the University’s] Code of Ethical Behavior, based upon subsequent unwelcome conduct.

Office of Equal Opportunity, Colorado State University, Consensual Relationships (June 23, 2010); see also Gettysburg College, Consensual Relationship Policy(last visited Jan. 17, 2016) (“Entering into a romantic and/or sexual relationship with any student is outside the bounds of an employee’s assigned duties, and he/she may not be eligible for the College’s liability insurance protection should he/she incur civil or criminal liability as a result of his/her actions.”).

[41] See, e.g., University of Hawaii, Proposed new Executive Policy: . . . Policy on Consensual Relationships 2 (Oct. 15, 2015) (“The term ‘employee’ is defined as all individuals classified as administrators, faculty, staff, temporary hires, casual hires, and student staff, employed by the University.

Staff includes, but is not limited to, instructors, graduate/teaching assistants, graders, athletic coaches, and residence hall staff.”).

[42] Schools often have some ability to influence the policies and practices of program sites, such as clinical, internship, and foreign program sites through formal agreements. Addressing such situations, the University of New Mexico’s November 2014 “Consensual Relationships and Conflicts of Interest” policy extends to all faculty, staff, and students in superior/subordinate relationships as well as “others who participate in the University’s programs and activities, whether on- or off-campus and including abroad.” University of New Mexico, Administrative Policies and Procedures Manual - Policy 2215: Consensual Relationships and Conflicts of Interest (Nov. 25, 2014).

 

[43] See, e.g.,Office of the Provost, Virginia Commonwealth University, Employee-Student Consensual Relationships-Interim (Apr.13, 2015)(defining “Position of Authority” as “Referenc[ing] and includ[ing], but [] not limited to, situations in which an employee is responsible for teaching, evaluating, supervising, advising, training, or providing recommendations for a student as part of a school program or employment situation; or is in a position to influence any of these activities or processes conducted by others”).

[44] This is the most common approach to defining the relationships at issue. See, e.g.,Washington University, Policy on Consensual Faculty-Student Relationships (last visited Jan. 17, 2016) (“any dating, romantic, sexual, or marriage relationship”); University of Michigan, U-M Standard Practice Guide (Apr. 2, 2004), (“romantic and/or sexual relationships”).

[45] See, e.g., University of Maine System, Guidelines Regarding Consenting Relationships (Nov. 1990)  (“If one of the individuals involved does not welcome the relationship, it should be regarded as potential sexual harassment based on the unwelcome nature of the sexual conduct.

Relationships which are not consensual are prohibited under other sections of the sexual harassment policy.”).

[46] See Office of Diversity & Equity, University of Connecticut, Policy Against Discrimination, Harassment and Inappropriate Romantic Relationships (last visited Jan. 17, 2016) (“For the purposes of this policy, ‘amorous relationships’ are defined as intimate, sexual, and/or any other type of amorous encounter or relationship, whether casual or serious, short-term or long-term.”); Columbus State University, Consensual Amorous Relationships Policy(last visited Jan. 17, 2016) (“The term [‘Amorous Relationship’] also encompasses those relationships in which amorous or romantic feelings exist without physical intimacy and which, when acted upon by the faculty or staff member, exceed the reasonable boundaries of what a person of ordinary sensibilities would believe to be a collegial or professional relationship.”).

[47] See, e.g., University of Iowa, Consensual Relationships Involving Students (last visited Jan. 17, 2016).

[48] See, e.g., Office of Diversity & Equity, University of Connecticut, Policy Against Discrimination, Harassment and Inappropriate Romantic Relationships (last visited Jan. 17, 2016) (requiring formal disclosure and prohibiting the exercise of authority over a student with whom an employee is engaged in an amorous relationship absent administrative steps to eliminate potential conflicts of interest); Northwestern University, Consensual Romantic or Sexual Relationships between Faculty, Staff and Students 4 (Jan. 13, 2014) (requiring disclosure of pre-existing relationships between faculty members and prospective students and development of a management plan when possible).

[49] See Secunda, supra note 16, at 156-58 (discussing potential public institution approach that presumes the impropriety of supervisory faculty-student amorous relationships but allows for the possibility that a faculty member could—by meeting a heavy burden—demonstrate that a relationship imposes no more than a de minimus risk of harm to the institution or individuals); Human Resources, Willamette University, Consensual Relationship Policy (Spring 2013)(providing procedure for requesting exceptions to complete ban on employee-student relationships on a case-by-case basis and noting that exceptions will be granted rarely); Dartmouth College, Policy on Instructor-Student and Staff-Student Consensual Relationships, Handbook of the Faculty of Arts & Sciences (Dec. 2014) (allowing exceptions approved by responsible deans “[i]n unusual circumstances,” such as where a student’s academic program requires a course taught only by his or her spouse).

[50] Some institutions require notifying only a direct supervisor who may be, in turn, required to notify others. See, e.g., Occidental College, Occidental College Sexual Misconduct Policy; Prohibited Relationships by Persons of Authority (last visited Jan. 17, 2016) (requiring one with supervisory or evaluative responsibilities who contemplates being involved in a relationship where the parties occupy asymmetrical positions of power to report the circumstances to his or her supervisor); Human Resources, Drexel University, Nepotism/Employment of Relatives & Consensual Amorous Relationships (March 2013)(requiring (1) faculty and staff members involved in amorous relationships with students they supervise to notify their immediate supervisors and to provide notice through the university’s conflicts of interest program and (2) any supervisor who “learns of an actual or suspected” prohibited amorous relationship to consult with human resources, potentially investigate, document, and follow-up to avoid conflicts).

Other, particularly larger, schools, provide a number of options. See, e.g., University of Iowa, Consensual Relationships Involving Students (last visited Jan. 17, 2016) (requiring instructors to notify any of the following of a faculty-student amorous relationship in an instructional context: the instructor’s neutral supervisor, the department director, the dean or vice president of the college or division that employs the instructor, or the equal opportunity office).

Because of the personal nature of the relationships at issue, allowing a variety of notification options may increase the likelihood that a notification will occur; where a policy specifies only one reporting option with which a faculty member is uncomfortable (for example, a supervisor), a report is less likely.

[51] In an apparent nod to the possibility that some employee-student amorous relationships are destined despite rules to the contrary, many institutions that prohibit them provide conflict-of-interest protocols for situations in which they nevertheless arise. See, e.g., Office of Human Resources, Spelman College, Consensual Relationship Policy Statement (last visited Jan. 17, 2016).

[52] See, e.g., University of New Mexico, UAP 2215 Exhibit A: Sample Management Plan (Nov. 25, 2014); Human Resources, Case Western Reserve University, Consensual Relationships (last visited Jan. 17, 2016) (explaining policy and outlining management plans).

[53] See, e.g., Task Force on Employee/Student Relationships, University of Texas System, Findings and Recommendations 13-14 (Dec. 12, 2013) (recommending that the U.T. System Office of General Counsel monitor application of consensual relations policies to ensure consistency).

[54] See, e.g., University of Colorado, Conflict of Interest in Cases of Amorous Relationships (July 1, 2009), (calling for those who receive disclosures of employee-student amorous relationships to preserve confidentiality “to the fullest extent possible,” providing document destruction timeframe for information about such relationships in personnel files, and designating a limited number of individuals with responsibility for avoiding conflicts).

[55] 20 U.S.C. § 1232g; 34 C.F.R. pt. 99.

[56] See, e.g.,University of Iowa, Consensual Relationships Involving Students (last visited Jan. 17, 2016) (allowing “any person” alleging a violation to bring a complaint, including university offices and third parties).

[57] For example, the University of Connecticut’s policy addressing “Inappropriate Romantic Relationships” in the employee-student context spells out, “In the event of a charge of sexual harassment arising from such circumstances, the University will in general be unsympathetic to a defense based upon consent when the facts establish that a faculty-student or staff-student power differential existed within the relationship.” University of Connecticut, Policy Against Discrimination, Harassment and Inappropriate Romantic Relationships (Sept. 24, 2013); see also Office of Human Resources, University of Notre Dame, Consensual Relationships(last visited Jan. 17, 2016) (similar).

[58] See, e.g., Office of the Provost, Virginia Commonwealth University, Employee-Student Consensual Relationships-Interim (Apr. 13, 2015)(“Discipline and Non-Retaliation . . . . Student[s] must also comply with this policy, making appropriate efforts to avoid prohibited relationships (and the conflicts of interest and other harms inherent in them) and to timely report and/or take other required actions as outlined herein.”).

[59] See Richards, supra note 3, at 346, 348; see, e.g., Purdue University, Ethics; Policy on Amorous Relationships (III.A.1) (“Individuals engaged in an amorous relationship in violation of this policy are subject to disciplinary action ranging from a written reprimand up to and including termination.”).

 

 

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