UB op-ed: Developing policies that prevent relationships from crossing the line

What universities should consider regarding faculty-student relationships
By: | Issue: July, 2019
June 28, 2019

Chase Hattaway is an attorney with Rumberger, Kirk & Caldwell

In light of the #MeToo movement, many universities are confronting an issue that has presented challenges for many years: relationships between faculty and students. Institutions often encourage close relationships between teachers and students because they facilitate academic growth. There is typically nothing wrong with such relationships.

However, with the possibility that these collaborations might grow into romantic relationships, institutions can’t ignore the issue altogether.

What is legally required?

While Title IX does not explicitly prohibit teacher-student relationships, the Department of Education, in its 2014 Questions and Answers on Title IX and Sexual Violence guidelines, noted that even when the student is above the age of consent, sexual relationships between students and teachers are presumed to be nonconsensual.

That said, identifying relationships that are more likely to be nonconsensual can be difficult. For example, is a teacher-student relationship problematic if the student takes classes in the teacher’s department, but isn’t enrolled in the teacher’s classes? What if the faculty member isn’t a teacher, but is a dean over the department in which the student is studying? Is a significant gap in age between the faculty member and student relevant to the issue of consent?

Develop a policy

When crafting policies addressing teacher-student relationships, here are three important considerations:

  1. Think about faculty influence. Institutions should give serious consideration to whether the faculty member has influence over the student’s academic and professional future. Indeed, a relationship involving a teacher who appears to wield power over a student may be more likely to be viewed as nonconsensual. The most obvious example of this is in a classroom where a teacher is expected to grade a student. Problems can also arise when a faculty member can alter a student’s schedule. The more influence the faculty member has over the student’s future, the more problematic the relationship. And because of the nature of consent, the student’s mere belief that the teacher has some power makes this issue even more difficult.
  2. Solicit campuswide input.
    Enacting policies without faculty input may spark frustration and confusion. Moreover, enforcing unpopular policies can create additional stress.
  3. Consider fact-specific policies. There are benefits and drawbacks to enacting policies that identify specific types of prohibited relationships. On the one hand, crafting specific policies gives faculty and students a firm understanding of what is permissible. It also provides clarity in enforcing the policies and recommending punishment.

On the other hand, fact-specific policies leave little room for discretion. Policies that specifically identify prohibited relationships presumptively approve of relationships that are not specifically prohibited in the policy. Consequently, institutions may be unable to act because the relationship does not fall within the specific confines of the policy language.

Broader language that describes problematic relationships provides more flexibility and allows institutions to tackle situations on a case-by-case basis.

Encourage transparency

Institutions should encourage faculty members to preemptively report relationships—rather than reporting relationships after problems arise. Doing so allows the institution to document the consensual nature of the relationship and avoid the appearance of impropriety, thereby protecting the institution from potential future complaints.

Finally, institutions should be mindful of state and federal anti-discrimination laws as well as collective bargaining agreements when crafting policies. A policy that runs afoul of these laws and agreements may prevent the institution from enforcing it. Even worse, a faculty member disciplined for violating the policy may file a complaint of discrimination. Thus, ensuring compliance with anti-discrimination laws and collective bargaining agreements is important.

Chase Hattaway is an attorney with Rumberger, Kirk & Caldwell, and consults on compliance with state and federal law. Contact him at [email protected].