What's Wrong with Faculty-Student Sex? the Law School Context

Journal of Legal Education

Volumn 47, Issue 1, 1997, Pages 47-72

  Forell, Caroline ^a  

^a UNIVERSITY OF OREGON   (United States)

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EID: 0031481240     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (95)

1. See, e.g., Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven, 1979).
2. AALS Executive Committee, Statement of Good Practices by Law Professors in the Discharge of Their Ethical and Professional Responsibilities (Nov. 17, 1989) [hereinafter Statement of Good Practices], reprinted in Association of American Law Schools, 1995 Handbook 89, 91 (Washington, 1995).
3. AALS Executive Committee, Statement of Good Practices by Law Professors in the Discharge of Their Ethical and Professional Responsibilities (Nov. 17, 1989) [hereinafter Statement of Good Practices], reprinted in Association of American Law Schools, 1995 Handbook 89, 91 (Washington, 1995).
4. Coined, I believe, by conservative radio commentator Rush Limbaugh.
5. Rene Denfeld, The New Victorians: A Young Woman's Challenge to the Old Feminist Order 11 (New York, 1995); see also Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus (Boston, 1993); Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York, 1995); cf. Susan Faludi, Backlash: The Undeclared War Against American Women (New York, 1991).
6. Rene Denfeld, The New Victorians: A Young Woman's Challenge to the Old Feminist Order 11 (New York, 1995); see also Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus (Boston, 1993); Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York, 1995); cf. Susan Faludi, Backlash: The Undeclared War Against American Women (New York, 1991).
7. Rene Denfeld, The New Victorians: A Young Woman's Challenge to the Old Feminist Order 11 (New York, 1995); see also Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus (Boston, 1993); Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York, 1995); cf. Susan Faludi, Backlash: The Undeclared War Against American Women (New York, 1991).
8. Rene Denfeld, The New Victorians: A Young Woman's Challenge to the Old Feminist Order 11 (New York, 1995); see also Katie Roiphe, The Morning After: Sex, Fear, and Feminism on Campus (Boston, 1993); Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York, 1995); cf. Susan Faludi, Backlash: The Undeclared War Against American Women (New York, 1991).
9. For a summary of the debate, see Jerome W. D. Stokes & D. Frank Vinik, Consensual Sexual Relations Between Faculty and Students in Higher Education, 96 Educ. L. Rep. 899 (1995).
10. See, e.g., Sherry Young, Getting to Yes: The Case Against Banning Consensual Relationships in Higher Education, 4 Am. U. J. Gender & L. 269 (1996).
11. If we substitute "education" for "employment," the text of the Equal Employment Opportunity Commission regulation concerning quid-pro-quo sexual harassment provides an appropriate definition: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual . . . .
12. C.F.R. § 1604.11(a).
13. According to the Supreme Court, hostile environment sexual harassment in the work context is conduct that has "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
14. There is also a debate over what to call a sexual relationship between teacher and student. It started out being called "fraternization," but that sounded archaic and sexist. Next it was "consensual relations," but that begs the question. At present "amorous relations" is in vogue. I prefer to be up front about what I'm discussing and therefore simply call it "faculty-student sex."
15. See Peter Rutter, Sex in the Forbidden Zone 22 (New York, 1989); Kathleen T. Heinrich, Loving Partnerships: Dealing with Sexual Attraction and Power in Doctoral Advisement Relationships, 62 J. Higher Educ. 514, 516 (1991).
16. See Peter Rutter, Sex in the Forbidden Zone 22 (New York, 1989); Kathleen T. Heinrich, Loving Partnerships: Dealing with Sexual Attraction and Power in Doctoral Advisement Relationships, 62 J. Higher Educ. 514, 516 (1991).
17. Glaser and Thorpe received survey responses from 44% (464) of the female members of the Clinical Psychology Division of the American Psychological Association. Of these, 31% reported receiving advances from psychology educators either prior to or during a working relationship, and 17% reported intimate sexual contact (defined as intercourse or direct genital stimulation) with at least one psychology educator during graduate training. . . . In a study of 235 male faculty members from all departments of "a prestigious research-oriented university," Fitzgerald et al. found that 26% reported sexual involvement with women students. Schneider studied 356 graduate women from a number of disciplines, and found that 9% reported coercive dating and sex with members of the faculty. Of the 13% who engaged in consensual dating with members of the faculty, 30% experienced "pressure to be sexual." S. Michael Plaut, Boundary Issues in Teacher-Student Relationships, 19 J. Sex & Marital Therapy 210, 212 (1993) (footnotes omitted) (citing Robert D. Glaser & Joseph S. Thorpe, Unethical Intimacy: A Survey of Sexual Contact and Advances Between Psychology Educators and Female Graduate Students, 41 Am. Psychologist 43, 49 (1986); Beth E. Schneider, Graduate Women, Sexual Harassment, and University Policy, 58 J. Higher Educ. 46, 51-52 (1987); Louise F. Fitzgerald, Sexual Denial in Scholarly Garb, 12 Psychol. Women Q. 329, 332 (1988)); see also Heinrich, supra note 10, at 516.
18. Glaser and Thorpe received survey responses from 44% (464) of the female members of the Clinical Psychology Division of the American Psychological Association. Of these, 31% reported receiving advances from psychology educators either prior to or during a working relationship, and 17% reported intimate sexual contact (defined as intercourse or direct genital stimulation) with at least one psychology educator during graduate training. . . . In a study of 235 male faculty members from all departments of "a prestigious research-oriented university," Fitzgerald et al. found that 26% reported sexual involvement with women students. Schneider studied 356 graduate women from a number of disciplines, and found that 9% reported coercive dating and sex with members of the faculty. Of the 13% who engaged in consensual dating with members of the faculty, 30% experienced "pressure to be sexual." S. Michael Plaut, Boundary Issues in Teacher-Student Relationships, 19 J. Sex & Marital Therapy 210, 212 (1993) (footnotes omitted) (citing Robert D. Glaser & Joseph S. Thorpe, Unethical Intimacy: A Survey of Sexual Contact and Advances Between Psychology Educators and Female Graduate Students, 41 Am. Psychologist 43, 49 (1986); Beth E. Schneider, Graduate Women, Sexual Harassment, and University Policy, 58 J. Higher Educ. 46, 51-52 (1987); Louise F. Fitzgerald, Sexual Denial in Scholarly Garb, 12 Psychol. Women Q. 329, 332 (1988)); see also Heinrich, supra note 10, at 516.
19. Glaser and Thorpe received survey responses from 44% (464) of the female members of the Clinical Psychology Division of the American Psychological Association. Of these, 31% reported receiving advances from psychology educators either prior to or during a working relationship, and 17% reported intimate sexual contact (defined as intercourse or direct genital stimulation) with at least one psychology educator during graduate training. . . . In a study of 235 male faculty members from all departments of "a prestigious research-oriented university," Fitzgerald et al. found that 26% reported sexual involvement with women students. Schneider studied 356 graduate women from a number of disciplines, and found that 9% reported coercive dating and sex with members of the faculty. Of the 13% who engaged in consensual dating with members of the faculty, 30% experienced "pressure to be sexual." S. Michael Plaut, Boundary Issues in Teacher-Student Relationships, 19 J. Sex & Marital Therapy 210, 212 (1993) (footnotes omitted) (citing Robert D. Glaser & Joseph S. Thorpe, Unethical Intimacy: A Survey of Sexual Contact and Advances Between Psychology Educators and Female Graduate Students, 41 Am. Psychologist 43, 49 (1986); Beth E. Schneider, Graduate Women, Sexual Harassment, and University Policy, 58 J. Higher Educ. 46, 51-52 (1987); Louise F. Fitzgerald, Sexual Denial in Scholarly Garb, 12 Psychol. Women Q. 329, 332 (1988)); see also Heinrich, supra note 10, at 516.
20. Glaser and Thorpe received survey responses from 44% (464) of the female members of the Clinical Psychology Division of the American Psychological Association. Of these, 31% reported receiving advances from psychology educators either prior to or during a working relationship, and 17% reported intimate sexual contact (defined as intercourse or direct genital stimulation) with at least one psychology educator during graduate training. . . . In a study of 235 male faculty members from all departments of "a prestigious research-oriented university," Fitzgerald et al. found that 26% reported sexual involvement with women students. Schneider studied 356 graduate women from a number of disciplines, and found that 9% reported coercive dating and sex with members of the faculty. Of the 13% who engaged in consensual dating with members of the faculty, 30% experienced "pressure to be sexual." S. Michael Plaut, Boundary Issues in Teacher-Student Relationships, 19 J. Sex & Marital Therapy 210, 212 (1993) (footnotes omitted) (citing Robert D. Glaser & Joseph S. Thorpe, Unethical Intimacy: A Survey of Sexual Contact and Advances Between Psychology Educators and Female Graduate Students, 41 Am. Psychologist 43, 49 (1986); Beth E. Schneider, Graduate Women, Sexual Harassment, and University Policy, 58 J. Higher Educ. 46, 51-52 (1987); Louise F. Fitzgerald, Sexual Denial in Scholarly Garb, 12 Psychol. Women Q. 329, 332 (1988)); see also Heinrich, supra note 10, at 516.
21. Glaser and Thorpe received survey responses from 44% (464) of the female members of the Clinical Psychology Division of the American Psychological Association. Of these, 31% reported receiving advances from psychology educators either prior to or during a working relationship, and 17% reported intimate sexual contact (defined as intercourse or direct genital stimulation) with at least one psychology educator during graduate training. . . . In a study of 235 male faculty members from all departments of "a prestigious research-oriented university," Fitzgerald et al. found that 26% reported sexual involvement with women students. Schneider studied 356 graduate women from a number of disciplines, and found that 9% reported coercive dating and sex with members of the faculty. Of the 13% who engaged in consensual dating with members of the faculty, 30% experienced "pressure to be sexual." S. Michael Plaut, Boundary Issues in Teacher-Student Relationships, 19 J. Sex & Marital Therapy 210, 212 (1993) (footnotes omitted) (citing Robert D. Glaser & Joseph S. Thorpe, Unethical Intimacy: A Survey of Sexual Contact and Advances Between Psychology Educators and Female Graduate Students, 41 Am. Psychologist 43, 49 (1986); Beth E. Schneider, Graduate Women, Sexual Harassment, and University Policy, 58 J. Higher Educ. 46, 51-52 (1987); Louise F. Fitzgerald, Sexual Denial in Scholarly Garb, 12 Psychol. Women Q. 329, 332 (1988)); see also Heinrich, supra note 10, at 516.
22. Not everyone agrees that the gender of the parties is irrelevant. Rutter asserts that the harm to women from sex with men who have professional power over them is of a different order and much more serious. Rutter, supra note 10, at 82-104.
23. Lawyers, Clients and Sex: Breaking the Silence on the Ethical and Liability Issues, 22 Golden Gate U. L. Rev. 611 (1992); Oregon's "Hands-Off" Rule: Ethical and Liability Issues Presented by Attorney-Client Sexual Contact, 29 Willamette L. Rev. 711 (1993) [hereinafter Forell, "Hands-Off" Rule].
24. Lawyers, Clients and Sex: Breaking the Silence on the Ethical and Liability Issues, 22 Golden Gate U. L. Rev. 611 (1992); Oregon's "Hands-Off" Rule: Ethical and Liability Issues Presented by Attorney-Client Sexual Contact, 29 Willamette L. Rev. 711 (1993) [hereinafter Forell, "Hands-Off" Rule].
25. Oregon Code of Professional Responsibility DR 5-110 states in part: "A lawyer shall not have sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them before the lawyer/client relationship commenced."
26. See Kirschoff v. Bertstein, 181 P. 746 (Or. 1919); Linda Mabus Jorgenson & Pamela K. Sutherland, Fiduciary Theory Applied to Personal Dealings: Attorney-Client Sexual Contact, 45 Ark. L. Rev. 459, 485 (1992).
27. See Kirschoff v. Bertstein, 181 P. 746 (Or. 1919); Linda Mabus Jorgenson & Pamela K. Sutherland, Fiduciary Theory Applied to Personal Dealings: Attorney-Client Sexual Contact, 45 Ark. L. Rev. 459, 485 (1992).
28. McDaniel v. Gile, 281 Cal. Rptr. 242 (Ct. App. 1991); Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983); Tante v. Herring, 453 S.E.2d 686 (Ga. 1994); see also ABA Comm. on Ethics and Grievances, Formal Op. 92-364 (1992), which begins: "A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer's fiduciary position, and/or significantly impair a lawyer's ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility."
29. McDaniel v. Gile, 281 Cal. Rptr. 242 (Ct. App. 1991); Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983); Tante v. Herring, 453 S.E.2d 686 (Ga. 1994); see also ABA Comm. on Ethics and Grievances, Formal Op. 92-364 (1992), which begins: "A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer's fiduciary position, and/or significantly impair a lawyer's ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility."
30. McDaniel v. Gile, 281 Cal. Rptr. 242 (Ct. App. 1991); Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983); Tante v. Herring, 453 S.E.2d 686 (Ga. 1994); see also ABA Comm. on Ethics and Grievances, Formal Op. 92-364 (1992), which begins: "A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer's fiduciary position, and/or significantly impair a lawyer's ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility."
31. McDaniel v. Gile, 281 Cal. Rptr. 242 (Ct. App. 1991); Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983); Tante v. Herring, 453 S.E.2d 686 (Ga. 1994); see also ABA Comm. on Ethics and Grievances, Formal Op. 92-364 (1992), which begins: "A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer's fiduciary position, and/or significantly impair a lawyer's ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility."
32. On the basis of the case law involving attorney-client sex, I believe courts would find that a teacher who had a sexual relationship with a student over whom he had supervisory power had breached his fiduciary duty if the student suffered pecuniary or physical harm as a result of the sexual relationship. It is less certain whether courts would find a breach of fiduciary duty if only emotional harm resulted. See Forell, "Hands-off" Rule, supra note 13, at 751-58. There may be occasions where both the attorney-client and the faculty-student relationship appear to be less a fiduciary relationship than a relationship between equals. A business lawyer and a sophisticated business client may not experience a power disparity; similarly, a teacher and a graduate student may in certain instances develop a relationship that is mutual and symbiotic.
33. A basis for rejecting many of the students' charges was that they had not been brought before the university's 180-day deadline for reporting incidents of sexual harassment. The time line has since been changed to 365 days.
34. E-mail sent Apr. 20, 1994, to LAWPROF Internet discussion group.
35. See Plaut, supra note 11, at 212; see generally Rutter, supra note 10.
36. At one time or another, most graduate students have entertained the suspicion that their adviser controls their destiny, and it's true in just enough ways to make paranoia seem justified. "The professor combines the transferential authority of the parent with the actual power of a director of graduate studies," writes historian Peter Loewenberg in a smart essay on the sticky emotional climate of graduate school. "The faculty-student relationship, particularly on the graduate level, is not that of equals. It is one of domination and submission. Whereas reality factors in other professional relationships such as attorney-client or doctor-patient are limited to a contractual transaction whereby the latter agrees to pay and obey while the former ministers with the promise of relief, in academia the reality gives the professor authority over the student's finances, employment, academic record, reference - to say nothing of the emotional rewards - heightened self-esteem, enhanced prestige, and the fantasy of eventual inheritance of power. . . . For any student who has been an independent adult on his own, a return to graduate school most certainly represents an emotional regression." Margaret Talbot, A Most Dangerous Method, Lingua Franca, Jan.-Feb. 1994, at 1, 32. For a description of the psychological phenomenon of transference, see Rutter, supra note 10, at 50; see also Phyllis Coleman, Sex in Power Dependency Relationships: Taking Unfair Advantage of the "Fair" Sex, 53 Alb. L. Rev. 95, 120-21 (1988).
37. At one time or another, most graduate students have entertained the suspicion that their adviser controls their destiny, and it's true in just enough ways to make paranoia seem justified. "The professor combines the transferential authority of the parent with the actual power of a director of graduate studies," writes historian Peter Loewenberg in a smart essay on the sticky emotional climate of graduate school. "The faculty-student relationship, particularly on the graduate level, is not that of equals. It is one of domination and submission. Whereas reality factors in other professional relationships such as attorney-client or doctor-patient are limited to a contractual transaction whereby the latter agrees to pay and obey while the former ministers with the promise of relief, in academia the reality gives the professor authority over the student's finances, employment, academic record, reference - to say nothing of the emotional rewards - heightened self-esteem, enhanced prestige, and the fantasy of eventual inheritance of power. . . . For any student who has been an independent adult on his own, a return to graduate school most certainly represents an emotional regression." Margaret Talbot, A Most Dangerous Method, Lingua Franca, Jan.-Feb. 1994, at 1, 32. For a description of the psychological phenomenon of transference, see Rutter, supra note 10, at 50; see also Phyllis Coleman, Sex in Power Dependency Relationships: Taking Unfair Advantage of the "Fair" Sex, 53 Alb. L. Rev. 95, 120-21 (1988).
38. At one time or another, most graduate students have entertained the suspicion that their adviser controls their destiny, and it's true in just enough ways to make paranoia seem justified. "The professor combines the transferential authority of the parent with the actual power of a director of graduate studies," writes historian Peter Loewenberg in a smart essay on the sticky emotional climate of graduate school. "The faculty-student relationship, particularly on the graduate level, is not that of equals. It is one of domination and submission. Whereas reality factors in other professional relationships such as attorney-client or doctor-patient are limited to a contractual transaction whereby the latter agrees to pay and obey while the former ministers with the promise of relief, in academia the reality gives the professor authority over the student's finances, employment, academic record, reference - to say nothing of the emotional rewards - heightened self-esteem, enhanced prestige, and the fantasy of eventual inheritance of power. . . . For any student who has been an independent adult on his own, a return to graduate school most certainly represents an emotional regression." Margaret Talbot, A Most Dangerous Method, Lingua Franca, Jan.-Feb. 1994, at 1, 32. For a description of the psychological phenomenon of transference, see Rutter, supra note 10, at 50; see also Phyllis Coleman, Sex in Power Dependency Relationships: Taking Unfair Advantage of the "Fair" Sex, 53 Alb. L. Rev. 95, 120-21 (1988).
39. See, e.g., In re Peters, 428 N.W.2d 375 (Minn. 1988).
40. Korf v. Ball State Univ., 726 F.2d 1222 (7th Cir. 1984), is one of the few cases that examine the ethics of a faculty-student sexual relationship. In support of holding faculty to a higher standard than the "ordinary 'person on the street,'" the court quoted the AAUP Statement on Professional Ethics, as set out in the Ball State University Faculty Handbook. Id. at 1227.
41. 71 Cal. L. Rev. 795 (1983).
42. Id. at 798. Not long ago marriage was legally treated as a status relationship. Until the early 1970s the husband-wife relationship met Frankel's description: "In a status society Dependents have few options for taking care of themselves, making their security precarious." Id. at 802.
43. Id. at 801.
44. Id. at 799.
45. Id. at 796.
46. Id. at 800.
47. Id. at 804.
48. Another commentator on fiduciary relationships asserts that there are four components of the fiduciary obligation, one being the "'partiality' component," which requires that fiduciaries (in this case, teachers) who are responsible for allocating benefits among beneficiaries (in this case, students) treat beneficiaries of the same class equally. Robert Flannigan, The Fiduciary Obligation, 9 Oxford J. Legal Stud. 285, 312 (1989).
49. 6th ed., 625 (St. Paul, 1990).
50. Frankel, supra note 24, at 801. Another commentator describes the fiduciary as a "person [who] receives a power of any type on condition that he also receive with it a duty to utilize that power in the best interests of another, and the recipient of the power uses that power." J. C. Shepherd, Towards a Unified Concept of Fiduciary Relationships, 97 Law Q. Rev. 51, 75 (1981).
51. Benefits might include general job satisfaction, learning from students, and furthering academic research. Sexual gratification or even locating a life partner should not be included among these incidental benefits.
52. Barbara A. v. John G., 193 Cal. Rptr. 422, 432 (Ct. App. 1983).
53. Kathleen Clark emphasizes that rules applicable to fiduciaries are prophylactic - "rules that prohibit more than just those activities that actually harm the beneficiary": Prophylactic rules forbid the fiduciary from placing herself in a position where she would be likely or tempted to cause harm to the beneficiary, such as where her own personal interest conflicts with her duties toward the beneficiary. Although violation of a prophylactic rule does not necessarily cause any actual harm to the beneficiary, courts presume that a violation results in harm. This presumption of harm may have arisen because of the difficulty of proving that the fiduciary actually has harmed the beneficiary. Do We Have Enough Ethics in Government Yet? An Answer from Fiduciary Theory, 1996 U. Ill. L. Rev. 57, 71-72 (footnotes omitted). Restrictions on faculty-student sex in dual relationships may often be prophylactic for the very reason that Clark mentions. In many situations it is likely to be difficult to prove that faculty-student sex has harmed the student lover or the other students. But, as Clark notes, "courts adopt prophylactic rules in the context of fiduciary relations both because of the distinct possibility of . . . harm and because of the difficulty of proving that actual harm has occurred." Id. at 72.
54. I mean to include both students with whom a teacher has a sexual relationship and students who may be affected because of their teacher's sexual relationship with one of their peers.
55. Statement of Good Practices, supra note 2, at 91.
56. In the survey of female psychology graduate students mentioned earlier, 28 percent of those who had had sexual relationships with their teachers "said they experienced some degree of coercion at the time of the contact." Looking back on the experience, 51 percent now believe there was some degree of coercion. Glaser & Thorpe, supta note 11, at 49.
57. In March 1996, the Oregon law school hosted a public "conversation" between two women (one a state supreme court justice, the other a U.S. attorney) who had been classmates at a prestigious law school in the 1960s. The U.S. attorney asked what the justice had found most valuable about her law school experience. In response the justice mentioned a number of intense one-on-one discussions about the law that she had had with her male mentor. Then the justice asked what was the worst thing about her classmate's law school experience. The U.S. attorney said it was being sexually pursued by male faculty: she ended up avoiding those teachers and didn't take certain classes that she wanted to take. Regretfully, she noted that such things still happen: as associate dean at a law school, she had recently counseled women students who were receiving unwelcome sexual attention from male faculty.
58. In the psychology survey discussed earlier, 31 percent of the female graduate students said that they had rebuffed sexual approaches by teachers. Of these, 71 percent viewed their experience as coercive, and "many reported not only significant subsequent harm to the working relationship but also punitive damage from educators." Glaser & Thorpe, supra note 11, at 46-47, 50.
59. Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. 777, 860 n.313 (1988).
60. Kenneth Lehrman III (J.D., Ph.D.), director of the University of Oregon's Office of Affirmative Action and Equal Opportunity, reviewed a draft of this essay and commented: "I'm not sure I agree with your conclusion that there is greater likelihood faculty-student sex will be 'truly' consensual in a law school context. The pressure, especially on first-year students, is greater than anything but the dissertation in graduate school. This is compounded by the one-exam approach."
61. Monroe H. Freedman, The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275, 279 & n.39 (1986).
62. 822 P.2d 549 (Idaho Ct. App. 1991).
63. Id. at 550, 552-53.
64. Internet communication to Kenneth Lehrman (Jan. 13, 1995).
65. Freedman provides an example of the resentment that may be directed at a student who has sex with her teacher: "A male lawyer who has been in practice for several years told me (with apparent residual anger) of a woman at his prestigious law school who, it was rumored, made law review by going to bed with most of the first-year faculty." Freedman, supra note 44, at 280. The rumors might well have been exaggerated, but the example demonstrates that the anger is often directed at the student rather than the professor.
66. Glaser & Thorpe, supra note 11, at 49.
67. 822 P.2d at 552.
68. Leon Botstein, president of Bard College, explained the conflict in an interview: Allow me to approach it this way. I am partisan, out of obligation, to my parents, my spouse, my children, and other members of my family in a way that overrides fairness. I will stop at nothing to advance them. If I am a judge in a violin competition and my grandmother enters, my opinion would be slanted toward her from the start, no matter what. That's why judges disqualify themselves. Now, I happen to think that when, as a teacher, you go beyond flirtation with a student, you trigger a set of ethical obligations that override the desire to be fair. I happen to think, as well, that the process of teaching is a process of the adjudication of fairness. So my conclusion is that when you are having sexual relations with one of your students, you are in this sense being unfair to the others. Forum, New Rules About Sex on Campus, Harper's, Sept. 1993, at 33, 38-39.
69. Id. at 35-36.
70. Peers Disown Professor's Sexual Views, Wash. Post., Sept. 26, 1993, at A22.
71. See generally Young, supra note 6.
72. Feminism and Harassment Policy, Academe, Sept.-Oct. 1994, at 16, 22; cf. Young, supra note 6, at 269.
73. Feminism and Harassment Policy, Academe, Sept.-Oct. 1994, at 16, 22; cf. Young, supra note 6, at 269.
74. Joan Blythe, in Forum, supra note 51, at 42.
75. Twentieth-century examples include the notorious case of Muller v. Oregon, 208 U.S. 412 (1908), which permitted government to enact safety laws applicable only to women workers. Distinguishing Lochner v. New York, 198 U.S. 45 (1905), which struck down a similar gender-neutral law that applied primarily to men, the Muller Court observed: But this assumes that the differences between the sexes does not justify a different rule respecting a restriction of the hours of labor. . . . . . . [Woman] is so constituted that she will rest upon and look to [her brother] for protection; [both] her physical structure and a proper discharge of her maternal functions . . . justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon [woman's] contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. 208 U.S. at 419, 422 (emphasis added). Planned Parenthood v. Casey, 505 U.S. 833 (1992), is a recent case that follows the same pattern of viewing women as in need of protection from their own irrational decisions. The Court held that a state statute imposing a 24-hour waiting period and requiring a doctor to provide detailed information concerning the risks of abortion and childbirth and to inform the woman of the availability of reams of gruesomely detailed information describing the "unborn child" and to have this material available for the woman's viewing if she chooses did not infringe on the constitutionally protected right to an abortion. See id. at 881-87.
76. In Praise of Student/Teacher Romances, Utne Reader, Mar.-Apr. 1995, at 37, 38 (excerpted from Shambhala Sun (Jan. 1995)).
77. Rutter, supra note 10, at 250.
78. Id. at 259.
79. Id. at 255.
80. Id. at 258-59.
81. Heinrich, supra note 10, at 534.
82. Gallop, supra note 55, at 22. It is interesting to think about why it was more acceptable among feminists in the 1960s and 1970s for women students to have sexual relations with their teachers. Perhaps they saw those young women as making the personal political by using their sexual power to break down academic hierarchy. Sex was more likely viewed as liberation than as harm.
83. Naragon v. Wharton, 737 F.2d 1403 (5th Cir. 1984); Korf v. Ball State Univ., 726 F.2d 1222 (7th Cir. 1984). The only reported case involving a consensual heterosexual faculty-student relationship is Board of Trustees v. Stubblefield, 94 Cal. Rptr. 318 (Ct. App. 1971). I suspect the reason there are so few reported cases is the problematic term consensual. A teacher who admits to having a sexual relationship with a student usually claims the relationship was consensual. If the student brings a lawsuit against the teacher, she very likely claims that it was nonconsensual and was therefore, at a minimum, sexual harassment. She is likely also to claim sexual battery or intentional infliction of emotional distress.
84. 737 F.2d 1403 (5th Cir. 1984).
85. Id. at 1406.
86. Id. at 1407 (Goldberg, J., dissenting).
87. Internet communication to Kenneth Lehrman (Jan. 13, 1995).
88. See Forell, "Hands-Off" Rule, supra note 13, at 730 n.83.
89. Forum, supra note 51, at 37.
90. In contrast, regulation of faculty-student sex outside a pedagogical or otherwise evaluative relationship requires the parties to choose between being lovers or being a teacher and a student at the particular institution. Such a choice is highly intrusive and does raise serious right-of-privacy issues. See, e.g., Ohio Northern University, Faculty Handbook 1995-96 § 2.3(3)(H), at 14-15 (1995), discussed in Young, supra note 6, at 271.
91. How the evaluative relationship is terminated will depend on the particular circumstances. If the student is currently enrolled in the teacher's class, then typically the appropriate resolution is for her to enroll in a different class or for the parties to delay the sexual relationship until the class has ended. If another class is not available, evaluation of the student's work by another teacher might be the appropriate resolution. In other situations the solution might be to have the teacher recuse himself whenever he is on a committee that evaluates his student/lover.
92. An informal process should not be a mandatory first step. There may be good reasons (such as egregious faculty misconduct or a conflict of interest on the part of the ombudsman) for going directly to a formal complaint process.
93. The issue of who has the burden of proving whether sexual contact occurred proved to be highly controversial when it was debated at the University of Oregon, where a rule regulating faculty-student sex was recently adopted. There are strong arguments for placing the burden of proof by the preponderance of evidence on the student and strong arguments for placing the burden of proof by the preponderance of evidence on the teacher. While I prefer having the burden on the teacher, the University of Oregon chose to modify its draft rule to place the burden on the student.
94. The sanctions for a teacher who violates these rules should depend on the situation. Where the only violation is that the teacher sought to initiate a sexual relationship with a student under his supervision but no such relationship occurred and no student has filed a formal written complaint, an oral reprimand may suffice. If a student proves retaliation for refusing a teacher's advances by the preponderance of evidence, the sanction should be more serious. Similarly, where the faculty member engages in a sexual relationship that violates the no-dual-relationships rule and a student files a formal written complaint which is found to be meritorious, the sanction should be serious; at a minimum any conflict should be removed and a written reprimand should be placed in the teacher's personnel file. Obviously, a finding of sexual harassment or retaliation may result in very serious sanctions, including termination of employment.
95. Statement of Good Practices, supra note 2, at 91.