An Analysis on Consensual Amorous

Relationships
Between Faculty and Students

Submitted to:
Atty. Jace Ramos

Submitted by:
Hilario, Pamela Denise d.V.
Lacadin, Anna Raeza A.
LAWSOCI K32

II. Summary
In the United States, a large percentage of female teenagers have
experienced or are experiencing sexual harassment from their male professors
or instructors which includes kissing, hugging, pinching, and other physical
advances. However, most of the female students are reluctant to report their
professors sexually harassing conduct because of fear, thats why there are only
a few sexual harassment reports being raised to concerned agencies. Thus,
gives an implication that sexual harassment in the academe is inexistent. But, a
lack of sexual harassment reports doesnt necessarily implicate the absence of
such problem.
Universities in the United States have different stands on the
implementation of the policies prohibiting consensual relationships between
faculty and students. Some universities have established regulations addressing
the problems of sexual harassment and adopted policy, which strictly forbids a
faculty member to have a relationship with his student or someone who is
supervising in an academic work. However, other universities do not strictly
prohibit such relationship, but only discourage it, and terming it as very unwise.
Moreover, some faculty members in these universities argue that the issue is
none of the universitys business, therefore policies prohibiting such
relationships should not be imposed. On top of that, they contend that such
restriction on amorous relationships between faculty and citizens may violate civil
rights specifically the constitutional right to privacy. Therefore, it is essential to
ensure that these constitutional rights are respected and observed by universities
in constructing their policies on faculty-student amorous relationships.
Institutions who have executed policy implementations on faculty-student
encounter difficulties in making a distinction between sexual harassment and
intimate consensual relationships. However, it is seen that they cannot be treated
distinctively, since both cases raise only one concern.
In response to the sexual harassment issues, legal developments have
been made to address these problems. The Congress enacted two provisions in
two different acts to prevent the occurrences of sexual discrimination; Title VII of
the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972.
The former was enacted to prevent sexual discrimination from happening in the
employer-employee relationship, and the latter is for the educational
environment.
The Equal Employment Opportunity Commission (EEOC) guidelines give its
definition of sexual harassment in light of Title VII of the Civil Rights Act and
delve into how such is being committed. It arrived to three factors: 1) submission
to such conduct is made as a term or condition of an individuals employment, 2)

submission or rejection to such conduct is used as basis for employment

decisions, 3) such conduct has the purpose or effect of unreasonably interfering
with an individuals work performance or creating an offensive working
environment.
The courts classified sexual harassment under Title VII into two categories,
first is quid pro quo in which a supervisor threatens the employee once she
refuses to comply to his special requests. Another is the hostile environment
wherein harassment takes the form of suggestive languages or intimidating
conduct, which then creates an offensive atmosphere in the workplace, thus,
affects the work performance of the employee. However, in the latter case, the
harassment must be so severe as to gravely affect the employees psychological
well-being and economic standing. Furthermore, to establish a hostile
environment, persons in positions of authority against persons in subordinate
roles over whom the former can exert authority must inflict the harassing
behavior. But the Supreme Court asserts that hostile environment claims are
actionable even in the absence of economic harm such as demotion, loss of
wages and employment. Furthermore, it made clear that only the employers who
had knowledge of the supervisors conduct are liable. But this doesnt insulate
other employers from the liability. The law mandates them to maintain a safe
working environment free of sexual harassment.
But when a student who is not an employee of the university and is sexually
harassed by a faculty member has no recourse under Title VII, for relief, the
student shall proceed to Title IX. Title IX requires universities and other federally
funded educational institutions to establish adequate grievance procedures for
alleged violations of sexual harassment. Moreover, it gives the right to students
to sue directly in federal courts. There have been several cases involving sexual
harassment and each courts approached the issue in different ways. A California
Court found that a single sexual invitation to a student unaccompanied by a
threat of retaliation or promise of gain does not amount to sexual harassment. It
further suggests that in order for a hostile environment to exist in the educational
context, a pattern of abusive behavior must be demonstrated similar to the
requisite under Title VII.
The Court has somewhat seen an asymmetry of power between faculty and
students as analogous to the power differential existing between a supervisor
and an employee. Both type of sexual harassment in the workplace may provide
reasonable analogies for the academic setting, where faculty members are
vested with institutional authorities over students. Students may consent to
unwanted sexual liaisons because of uncertainty regarding the academic
consequences of noncompliance. With this, universities and colleges may be
encouraged to impose a total ban on all amorous relationships between faculty
and students to avoid potential liabilities, similar to those of private company
rules, which prohibit such relationships.

The right to privacy recognizes an individuals right to be alone and be given

the chance to decide on ones own will. This is recognized in numerous court
decisions in the United States, one of which is in Olmstead v. United States,
wherein the individuals conversation was wiretapped. The Court reiterated in this
case that the right to be alone is the most comprehensive of rights and the right
most valued by civilized men. Two more cases support the Courts decision in
the aforementioned case, giving emphasis on the concept of liberty being
protected by the fourteenth amendment. The Court recognizes a liberty interest
on family-related interest such as child rearing and education.
Another decision of relation to the right of privacy is declaring
unconstitutional a statute that prohibits married persons from engaging in the use
of contraceptives because of the belief that marriage is a relationship that lies
within the zone of privacy created by the emanations of several fundamental
constitutional guarantees. Justice Douglas further reiterated that marriage is a
the binding of marriage is a an association that promotes a way of life, not
causes; a harmony in living, not political faiths. This means that a marriage is a
foundation formed by two parties, and is respected and treated as sacred by the
State and the public. This implies that the occurrences and decisions within a
marriage shall be made by both of the parties and shall not be subject to
interference by the State.
In the United States, the awareness of the right in engaging in highly
personal relationships is in doubt. Many Americans seem to have no knowledge
about their protection against unlawful and unreasonable intrusions of the
government. Although the value of associating with other people is given much
more importance compared to the freedom to express or freedom to politically
associate, the scope of the right to privacy being extended is not being pondered
upon by the Court because of the avoidance in reviving the judicial activism in
the past.
It can be seen that the Court and the law gives importance to the right of the
people to engage in relationships upon their will. It does not recognize the power
of the State to intrude upon the will and decisions of adults to establish
relationships absent of vitiated consent. Moreover, a spectrum of human
relationships has been noted by the Court, specifying that at both ends of the
spectrum. On the first end, there is the smallest and most selective, and on the
other, large business enterprises. The location of the relationship shall be the
basis of the right and authority of the State to intrude on said relationship. Those
relationships that are consensual and intimate are on the spectrum wherein
selective, small and seclusive ones are found. An amorous relationship, on the
other hand, as analyzed by the Court in Roberts v. United States Jaycees,
affords greatest claim to constitutional protection from governmental intrusion.
Notwithstanding the previously mentioned cases proving the importance of
the right to privacy in our courts, it is reiterated that the said right is not without

limitations. Numerous laws that support the fundamental freedom of people are
expected to serve a compelling state interest in which it must only be drawn to.
However, there is doubt as to whether the constitutional right to privacy is
absolute or not, especially when it comes to application in consensual and
amorous relationships between teachers and students. What the Court has
realized is that the hearing must always and solely focus on whether the teacher
used his authority to establish the relationship, and if that said relationship affects
the fitness of the teacher within the community. However, it is taken into account
the difference proof of relationship being used as an advantage against others by
the student, given the fact that being in a relationship with the teacher can easily
or possibly have a chance in the alterations of grades and the conduct of the
former. It is also taken into account the proof of having a prior relationship to be
able to determine if, like in the Griswold case, that there was a relationship
before the student graduated.
Hence, as said in the article, the scope of appropriate state interference
with a protected right was limited to the academic setting. It is seen by the Court
that the legitimate school board is concerned with the integrity of the school and
the fitness of the teacher or professor to still educate. However, the board of
education will be violating the right of the teacher to privacy if there is no proof
that there has been a teacher-student relationship. Cases of faculty-student
relationships, also, may involve sexual harassment, and because of this, it is
difficult to discern the limitations to be imposed on the rights of faculty and
students to private relationships.
In the case of Board of Trustees v. Stubblefield, the Court took more
consideration to the behavior of the professor towards the police officer, rather
than the intercourse the professor with the 18-year old student before he was
apprehended by the officer. It must be noted that there should be proof of abuse
of authority committed by the professor is pursuing his sexual advances with the
students. Given the fact that the professor shall be the one to grade and evaluate
the work done by the students may result to the student having to plead to the
professor for a better remark. Moreover, the American Association of University
Professors reiterates that it has in its Faculty handbook that the professor is
guided by a deep conviction of the worth and dignity of the advancement of
knowledge and that it shall be recognized by the special responsibilities placed
upon him. He must also demonstrate respect for the student as an individual and
must adhere to his proper role as a teacher.
The Supreme Court examined the decisions that define the right to privacy
mandated by the Constitution, and it lead to a question on whether the right to
privacy contains under its umbrella consensual relationships. Also, it is said that
once the right to privacy shall be deemed protecting consensual amorous
relationships between faculty and students, public universities may only intrude if
the said relationships serve compelling interests.

What the court suggests is that, using the bright line test, there must be an
express policy prohibiting the professors or educators from engaging into
intimate relationships with students. But this must only happen if the university
has addressed other concerns before adopting the policy on amorous
relationships. As said by Hoffman of Harvard Educational review, amorous
relationships between faculty and students are risky and inappropriate, however,
Hoffman suggests that policies should not reinforce status hierarchies and
ignore or deny the right of individuals to establish relationships when, with whom
and where the choose.
The right to form or associate with other adult individuals is a personal and
fundamental right and freedom of an individual. If an institution prefers to not
allow faculty and students not involved with each other, they must create a policy
prohibiting these people to associate, but only on the grounds of sexual
harassment. They must prohibit because they want to, as much as possible, stay
away from sexual harassment occurring in their institution. It must not be for the
purpose of just prohibiting because that will then be a violation of their
constitutional right to privacy and freedom. The school must take into account the
rights of the people within the institution as well.

III. Reaction
Relationships may sometimes be allowed between former students and
faculty by the letter, but I cannot think of when it would be advisable for a faculty
member to have a relationship with a student. Yes, it may not be illegal, but it
doesnt necessarily mean that it is advisable.
If there is ever a chance of the faculty having power over the students
academic progress, it is at best a conflict of interest and at worst a setup for
sexual harassment case. Even if the professor has no direct power over a
student, there is the possibility that other students could complain if there is
indirect influence (e.g., if he has connections to other faculty who do have power
over that student or over rival students). Even an indirect connection to the
student has the potential for allegations of bias or preference.
Relationships such as those between supervisors and their subordinate
employees are inherently asymmetric. Current or past sexual relationships can
adversely affect decisions, distort judgments, and undermine morale. Any
university employee who participates in academic supervisory or administrative
decisions concerning another employee with whom he or she has or has had a
sexual relationship has a conflict of interest in these situations.
Moreover, it looks bad on the institution. How many administrators would

want it known that any of their professors are dating any of their students? If you
were a parent looking at a school for your kid, all else being equal, would you
want the one where faculty are dating students? Imagine if the relationship goes
sour and you end up in shouting matches with a student in the office/lab. In that
light, dating a student is an anti-service to the institution.
Lastly, if the student is really going to be the love of his life, he can wait until
they're graduated to start a relationship. If not, then it's certainly not worth the
risk. This sort of thing used to be allowed decades ago, where it wasn't
uncommon for the faculty to end up marrying female grad students. As we've
become more aware of the power structures and negative externalities involved,
it's become much less permissible. Rightly so, in my opinion, no school is bigger
than 100,000 students and most students will be done in 3-4 years maximum.
Given the risks (bias, bad press, potential lawsuits by the student or their peers),
I don't think it's an undue restriction to not date a few thousand people rotating
over a few years.
An individuals right, in general, is one of the most important rights a person
has under the Constitution. These rights are under the Bill of Rights, and are
rights that must be respected, given the fact that it is mandated by the
fundamental law of the land. One of these said rights is the right to privacy, which
has a very wide scope because it encompasses the right of freedom and liberty
of the individual. This is something that has been reiterated by the Court
numerous times. We believe that similar to the Philippines, the United States has
most of the time, if not always, ruled in favor of the privacy of the individual. This
is something that we believe is partly good and partly disadvantageous on the
part of the educational institution.
Respecting the privacy of the person, especially in situations involving
parties inside a consensual relationship, is a good thing because a person must
be given the liberty to choose whom to associate with, especially if he or she is
already on the age of majority. People have the right to live peacefully, or
otherwise, at their own risk. The Constitutional Mandate to privacy takes into
account the possible abuses the government can do as against the individual.
We believe the spectrum of human relationships, as discussed in the article, is
something that must not always be accounted for, given the fact that it may not
always be accurate in determining whether the government has a right to
challenge the parties right to privacy.
What is bothering and disappointing is that the article recognizes the fact
that numerous Americans are not aware of their civil rights being inclusive of their
right to engage in highly personal relationships, it not being subject to intrusion
by the government. It is of disappointment because people do not anymore give
importance to their rights, or at least recognize it, because there is already fear
inflicted on the people. Moreover, the authority of the government over the
people must be for the betterment of the majority, and not for the mere fact of

inflicting fear and imposing authority, command and control. The individuals
should always be given the freedom to decide for their own selves and must not
be under the control of government authorities. Everyone has the right to have a
much different lifestyle than others, and violating these privacy boundaries may
cause other peoples right to privacy violated.
In one of the cases cited by the article, it involved a professor and a student
having sexual intercourse inside a car at a public street, but was commended by
the police officer, which was treated badly by the professor. The Court took
account only of the behavior of the professor towards the police officer. Given the
fact that he badmouthed the police officer in a public street affects the integrity of
the professor as an educator in the educational institution.
For educational institutions, however, their only intention is to keep and
uphold the integrity of their institution and the educators they hire. Given the fact
that many instances have occurred involving faculty-student relationships have
been incorporated with sexual harassment, which may further be detrimental to
the institution if they allow such happenings to transpire. What the board
members of the institutions are concerned with is also the decency and rectitude
of their faculty members. The various incentives that a student may get from
being in a relationship with a person in authority might lead or might entice the
student to consenting to the relationship itself. Despite the adulthood of both
parties involved in the relationship, the educational institutions are concerned
with what the relationship may affect especially in terms of the fitness of the
professor to teach and his ability to remain bias in his means of evaluating the
student.
To compromise the said conflict between the privacy right and the right to
engage in consensual relationships with other adults, student or not, the Court
has decided to allow educational institutions to convert the said prohibition into
an institutional policy, but only upon acquiring the consent of the faculty
members. Moreover, the conversion of the prohibition into a company policy
must be for the purpose of avoiding the involvement and occurrence of sexual
harassment. This shall serve the interest of the parties. We believe this is the
best way for the institution to address such problem, because upon the consent
of the faculty members, it shall make possible the limitations on such freedom
because of the consent being freely given. It is a positive thing that the Court has
addressed such issue involving the right to privacy and association and the right
of the institution to take control over the happenings and occurrences inside the
school between their faculty members and students.