Vivian Berger Mediator

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Any Real Remedy?

The National Law Journal
April 17, 2006

Sex on campus is as much a part of the learning experience as lectures, labs and research projects. Ideally, it involves romance between young people exploring their way toward adult roles. In reality, too often it constitutes the byproduct of a toxic brew of alcohol and ignorance, leaving at least one party (usually, the woman) feeling dissatisfied or imposed on. Perhaps some of these negative occurrences can be turned to positive use: College entails experimentation, and we expect that missteps teach students to avoid similar mistakes in the future.

Yet what about 'bad sex' not with peers but with professors? Does enrolling mean that a student must assume this risk? And if not, what legal recourse does she (or he) have against the offender or his (or her) employer, the institution? With teacher-student sexual contact drawing increased societal attention, courts are now having to provide answers to problems that once were handled entirely within the ivory tower, if at all.

A lag in case law

The development of the law in this field lags somewhat behind its progression in the Title VII of the Civil Rights Act of 1964 area, for a number of reasons. Initially, there are myriad employers but only a relatively limited number of higher-educational establishments, whose staff may initiate sexual encounters with those under their supervision. Lawsuits dealing with on-campus sexual harassment therefore amount to only a fraction of actions arising from on-the-job sexual misconduct. Also, universities have traditionally enjoyed a large measure of judicial deference on the theory that interference in their affairs threatens academic freedom, a specter that these institutions have not been reluctant to raise. (While that fear may be legitimate when students claim offense at the sexual content of lectures, it is a red herring in cases of physical touching, requests for dates, proposals to trade sex for grades and similar behavior.) Concomitantly, the legal safeguards afforded by tenure often constrain the ability of both colleges and courts to protect students by dismissing wrongdoers.

Yet perhaps most fundamentally, ambivalence about teacher-student sexual relationships in the context of young adults has undermined the social — and, by extension, legal — response to the issues they present. To be sure, as in the workplace, egregious misconduct like quid pro quo promises or threats or assaultive behavior does not lack for condemnation, assuming the complainant's charge is credited. (Youthful accusers are often regarded with skepticism.)

But what about when the young person appears to consent to sexual relations? 'Unwelcomeness' is required for a claim of hostile-environment sexual harassment. When even grownup employees, fearing the boss's retaliation, may sometimes fail to resist his undesired advances, how much more probable is it that a student in her teens or early 20s will yield to a professor, willingly or not? Indeed, confusing flattery with sexual attraction, she may, more than an older person, send mixed signals or try to renege only after engaging in intimate relations. While many institutions of higher learning now prohibit dating between faculty members and current students because of the extreme imbalance of power and potential for conflicts of interest (and a few, like the College of William and Mary, bar all 'amorous relationships' between professors and undergraduates), such rules do not create causes of action.

For egregious misconduct, the student can bring civil (and sometimes criminal) charges on grounds such as assault and battery and intentional infliction of emotional distress. But these target only the malefactor. Pursuing prosecution is more apt to place severe stress on the victim than to imprison the perpetrator; and suing the latter, even if successful, may yield an uncollectible judgment. Far better to target the deeper pocket: the university.

Yet here, too, obstacles abound. The faculty member's misbehavior falls beyond the scope of his or her employment, and hence eludes respondeat superior liability. Suits based on negligent retention, or breach of contract or fiduciary duty, are rare — and still more rarely victorious. Title IX of the Education Amendments of 1972, which precludes gender discrimination in educational programs receiving federal funds, shields a school from damages unless an official with authority to address the problem has 'actual knowledge' of it and 'fails adequately to respond' — a standard much stricter than in the analogous workplace context. Gebser v. Lago Vista School Dist., 524 U.S. 274 (1998).

Professorial sexual exploitation can wreak havoc upon young lives. Absent more meaningful legal redress, complainants must hope that campus officials take internal discipline seriously rather than simply circle the wagons, as they often have done in the past.