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"The Right to Romance":

Do Faculty Have a Constitutional Right to Sleep With Their Students? Heh.

Dave N (mail):
My concern is the power dynamic--if a professor is dating a current student then there are serious ethical considerations--just as serious as having a spouse, a child, or even a nephew or niece as a student.

How much of the grade was earned? Was anything extracurricular required? Did the student feel coerced into dating the professor? How disruptive will this relationship be to the learning environment for other students?

If a professor wants to date a student after the class is over with, I have no particular qualms--as long as he never has that student in one of his classrooms again, ever.

Do faculty members have a legal right to sleep with students? Yes. Do they have an ethical duty NOT to sleep with students. Yes, again. Do universities have the right to prohibit this behavior and punish faculty for violating this rule? Absolutely.
8.23.2007 1:22pm
Zacharias (mail):
More importantly: Students have the right to date anyone of their choosing. This implies that a faculty member has the right to date any student who chooses to date him.

Likewise, teenagers have a constitutional right to have sex with partners of their choosing. This implies that an adult has the right to sex with any teenager who chooses to have sex with him.
8.23.2007 1:23pm
Hans Bader (mail):
Why does he rely on the Ninth Amendment for this right, rather than the First or Fourteenth Amendment right of intimate association?

The Eleventh Circuit held that dating is protected by the freedom of intimate association in Wilson v. Taylor (1984).

Of course, professors, like all public employees, have narrower First Amendment rights vis-a-vis their employers than citizens have against the government in society at large. So their intimate association right is subject to reasonable regulation.

But still, if a professor is not dating a current student in one of his classes, but rather a student he isn't teaching, and the student is over the age of consent, then that should be permitted.

The remote specter of sexual harassment within the meaning of antidiscrimination laws shouldn't justify a broad prophylactic rule against all faculty-student dating, although it could justify a ban on a professor dating a student he is currently teaching. Cf. Louisiana Debating &Literary Association v. City of New Orleans (5th Cir. 1994) (freedom of intimate association trumped an overly broad municipal antidiscrimination ordinance).
8.23.2007 1:31pm
methodact:
Unless you are asking about Droit de seigneur or ius primae noctis, there is the right to free association and also the 9th Amendment.

Ethically, however, such a practice is suspect as there is an unwritten common knowledge of medium-of-exchange using grades-for-sex. Policies have developed in education and in the workplace that presume to preclude this common form of sleeping one's way to the top.

If push cums to shove, given the right case, yes, the right is there.
8.23.2007 1:36pm
frankcross (mail):
I like Zacharias' take. I wouldn't claim that I have any right to sleep with students, but I wouldn't want to deny them their rights to sleep with me. I'm generous that way.
8.23.2007 1:43pm
rarango (mail):
Exactly what Dave N said. And very well said, at that.
8.23.2007 1:47pm
CJColucci:
What a terrific incentive to attract top faculty to state schools!
8.23.2007 1:51pm
ifoughtthelaw (mail) (www):
In law school I ran for the position of "Academic Affairs Vice President" in the student government on this very platform. Get it? "Academic affairs"?

I didn't win.
8.23.2007 1:52pm
The Florida Masochist (mail) (www):
Groucho Marx aka Professor Wagstaff of Huxley College has asked the best answer. Asked where the students will sleep in the college is torn down....

"Where they always sleep. The classrooms."

Professors can join students there and I see problem at all with it.

Cheers,

Bill
8.23.2007 2:14pm
Ex parte McCardle:
"A Constitutional Right to Sleep With. . . Students"

Ah, the wisdom of our Founders, a blessing to us all.
8.23.2007 3:00pm
Seamus (mail):
And what about dating students without sleeping with them. (Believe it or not, it still happens. There are still people who wait until marriage. Damn few of them are college professors, but I assume there are one or two.)
8.23.2007 3:28pm
Seamus (mail):
There should have been a question mark at the end of the first sentence in my last post.
8.23.2007 3:28pm
Kent Scheidegger (mail) (www):
As we all know, once a new right is discovered it tends to get extended further and further. How far would this one go? At present, the mental health folks are subject to an absolute prohibition against sex with patients.

http://www.psychboard.ca.gov/pubs/proftherapy.pdf

Would this rule eventually fall? Sure it's a distinguishable situation, but once we say that the state cannot decide that a power imbalance in a relationship justifies a prohibition of sex, the only limit is how far courts are willing to go.

Another slippery slope argument for your collection, Eugene.
8.23.2007 3:49pm
Dilan Esper (mail) (www):
Dave N gets at the problem.

I would only add that if male professors are not able to date female students, there's a fair number of law professors I know of who would have never gotten married.
8.23.2007 3:50pm
CJColucci:
At my alma mater, there was something known -- unofficially, of course -- as the "Mentschikoff Prize." When the top student in the graduating class was a woman, she got to marry a member of the faculty. (A few did.) In those days, of course, all the faculty were men. I know someone who turned down the prize. Now that we have female faculty, though, I think there ought to be a similar prize for men.
8.23.2007 4:34pm
kehrsam (mail):
Shouldn't there be a penumbra associated with this. And there will likely be enamations.
8.23.2007 5:23pm
The Original TS (mail):
Actually, this raises an interesting constitutional question, at least regarding public universities.

I think there's a pretty good argument that faculty can be barred from dating students while they are actually in their classes. To put it another way, I think public universities have authority to prevent faculty from teaching/grading students they are dating.

But I don't think public universities have the authority to prevent faculty from dating students in general. Perhaps this is best illustrated through a few counter-examples.

Could a public university prevent faculty from dating students at other universities? How about a blanket prohibition on dating anyone under the age of 25? 30?

Could a state department of social services prohibit its employees from dating anyone whose income is, say, less than 200% of the poverty level?
8.23.2007 5:30pm
Hoosier:
Do Faculty Have a Constitutional Right to Sleep With Their Students?

YES!
8.23.2007 6:18pm
Thrasymachus (mail):
A "power imbalance" is not ipso facto sufficient to justify banning consensual relationships. We can't assume that if A is more powerful than B and they enter into a relationshhip A is necessarily exploiting B. If that were the case no one would want to date or marry millionaires or people holding prestigious or powerful positions.

The men's rights advocate Warren Farrell wryly observed that in a relationship if a man has money we call it power, but if a woman has money we say she is being used. It's by no means obvious who is exploiting whom in these circumstances.
8.23.2007 7:32pm
Dave N (mail):
As I discussed on the initial post on this thread, my concern is specifically a dating relationship while a professor has a student as a student. After the class has ended, and the student will never have that professor as an instructor again, then I don't particularly care.
8.23.2007 8:08pm
BMGordon (mail) (www):
"Do faculty members have a legal right to sleep with students? Yes."

Does this mean you can sue a student who refuses to sleep with you? Or do I have a mistaken notion of what a "legal right" means?
8.23.2007 8:22pm
Baxter (mail) (www):
I haven't read the book (and assume it's meant as humor), but it seems to me if one makes a Ninth Amendment argument that this is a "right" not mentioned in the Constitution, one must then accept a Tenth Amendment argument that the "power" to regulate this behavior (particularly by employees of the sovereign state) is one reserved to the states. Is there any authority holding that Ninth Amendment rights are so fundamental to our scheme of ordered liberty they would be protected against state abridgment by the incorporation doctrine? (I suspect not.) Or that something more than a rational basis would be required to justify regulation? (Likewise.)
8.23.2007 8:43pm
Dilan Esper (mail) (www):
CJC:

I do know of one well known female law professor (one of the most prominent in her discipline) who married a male student.

But I know of probably 25 male law professors who married female students.
8.23.2007 9:00pm
JoshL (mail):

I think there's a pretty good argument that faculty can be barred from dating students while they are actually in their classes. To put it another way, I think public universities have authority to prevent faculty from teaching/grading students they are dating.



I'd ammend that to include students over which the faculty member has a reasonable expectation of exerting power. A math PhD student and a professor of linguistics might end up working together, but it's unlikely. A math PhD student and a math professor, however, would be a different story.


Could a public university prevent faculty from dating students at other universities? How about a blanket prohibition on dating anyone under the age of 25? 30?



This presents problems in at least two cases I can think of:

1) Grad students as faculty. At many schools PhD students occasionally teach their own courses. It's entirely possible that said PhD student is 25 themselves, in which case a ban on dating anyone under 30 or even 25 seems unreasonable. If we expand the definition of "facutly" to include TAs then this becomes even more rediculous: many schools have undergraduate TAs (my alma mater had juniors and seniors in Computer Science working as TAs for the intro level CS courses).

2) Young faculty. As an example of someone relevant to law school facutly, take Alan Dershowitz as an example- he was hired at 25 and received tenure at 28 (granted at Harvard, which isn't public). This is certainly not a common process, but there are enough tenured faculty in various situations around the country that a lower limit of 30 could again present problems.
8.23.2007 9:09pm
Dave N (mail):
BMGordon,

My point was that a professor having a sexual relationship with a current student is not engaging in an illegal activity. However, such activity is clearly unethical and subject to university sanctions. My use of the term "legal right" may have been overstating the case somewhat. I apologize if its use confused you. I certainly am not implying that anyone has the legal right to have a sexual relationship with anyone else absent the other person's consent.
8.24.2007 12:31am
Daryl Herbert (www):
There is another side to this: protecting law students' reputations.

If you sleep with a professor, and people find out, some people will mock you for years to come.
8.24.2007 1:31am
idontwantaname:
Baxter hit the nail on the head. It's too bad no one seems inclined to respond to his argument.
8.26.2007 8:01pm