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Running Head: Dual Relationship in Higher Education

Dual Relationship in Higher Education

Sejal Mehta

The Pennsylvania State University

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Abstract

Faculty performs multiple roles in their relationship with students including those of

supervisor, instructor, advisor, and so on. These roles often result in informal interactions

sometimes resulting in private relationships including sexual relationships. An outline of

such issues along with court recommendations is examined. The influence of the

resulting precedents to the educational institution is then discussed.

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University and college faculty face complex professional and ethical issues in

their interactions and involvement with the students. On the one hand there is an

appreciation of the positive impact of increased faculty and student interaction outside the

classroom. On the other hand, there is growing sensitivity over the potential for

exploitation of students and caution faculty against personal relationships with their

students. It is a challenge for faculty to realize that the “faculty role” in relation to

students is not a single role, rather they have to perform complex multiple roles in their

relationships which include those of research supervisor, instructor, academic advisor and

so on. This multiple role has encouraged faculty to extend their professional roles into

more personal realms and to socialize and interact with students in more informal

settings. As faculty become more and more involved in the private lives of their students,

they find themselves in relationships with them that extend beyond the traditional

boundaries of academia. This could financial or business relationships, hiring students as

baby sitters, loaning money to students, and involving students in a private business

venture. These informal interactions or personal relationships also sometimes evolve into

sexual relationships which is the extreme negative end of the continuum (Rupert &

Holmes, 1997).

Due to the inherent power difference between faculty and students, students are

usually at greater risk for exploitation as they enter into relationships with faculty

extending outside the classroom. The risk to the faculty lies in losing their ability to

maintain fairness in acting in the best interest of the students in terms of instructional

evaluative roles. The scope of this paper is limited to the legal consequences that may

arise due to a sexual relationship between faculty and students. The research that is

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available on this topic indicates that such relationships do occur with some frequency

(Rupert & Holmes, 1997).

Issues and Court Recommendations

Franklin v. Gwinnet County Public Schools case

“Several types of legal decisions affect the ways in which policy makers can and

must address incidents of inappropriate sexual behavior: federal regulations, state and

federal laws, and court cases” (Penney, 1996 p.47). One of the landmark cases till date is

the Franklin v. Gwinnet County Public Schools and has implications for addressing

issues of sexual harassment. The case arose from the sexual harassment of a female high

school student from her teacher. Although school authorities were aware of the

harassment, no action was taken, in fact when the student complained, the school

authorities tried to persuade her not to pursue her claims. The school, ultimately,

permitted the teacher to resign and promised that no action would be taken against him

(Vargyas, 1993). It was after this case that sexual harassment became a major issue

nationwide. In October 1992, it was confirmed that the professor had harassed the student

in the early 1980’s. “The Supreme Court then ruled that student victims of sexual

harassment may collect damage payments under Title IX of the 1972 Federal Education

Act” (Wishnietsky & Felder, 1994 p. 37). The Supreme Court rules that educational

institutions through supervisors of classrooms, can be liable for monetary damages under

Title IX of the Educational Amendments of 1972, if they were aware of faculty sexual

harassment of students and did not take any action to deter it. (Guthrie-Morse, 1996).

Prior to this case the issue of monetary damages had not been addresses and few sexual

harassment cases had been prosecuted under title IX. It is after this case that the Supreme

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Court held that a monetary damage remedy is available to an individual claiming sexual

harassment under Title IX of the Education Amendments of 1972.

The case’s influence

“Title IX prohibits discrimination on the basis of sex in any educational program

or activity receiving Federal Financial Assistance” (Guthrie-Morse, 1996 p.50). Before

the Franklin case the only remedy under the law was a court order to stop harassment, but

now educational institutions can be ordered to pay the victims compensatory damages.

With the risk of having to pay monetary damages, it is expected that these educational

institutions will implement policies, procedures and regulations designed to protect

students from sexual harassment. All states should require their units to develop policies

that will create an environment free from discrimination and conduct that is in any way

harassing, coercive or disruptive. Each educational institution, school district, county

office of education, and community colleges should establish a policy on sexual

harassment. The policy must be easily accessible, be a part of any orientation program for

new students, be distributed to all faculty and staff, be a part of any publication on

standards of conduct, and also include the rules and procedures for reporting charges of

sexual harassment (Wishnietsky & Felder, 1994).

Quid pro quo and Hostile Environment

The Courts have recognized two types of sexual harassment: “quid pro quo” and

“hostile environment” Quid pro quo cases have typically involved a trade off in which

sexual favors are exchanged for some benefit. This was seen in the Alexander v. Yale

University case, where a student alleged that a poor grade was the result of her rejection

of a professor offering her a grad A in return for sexual favors (Cole, 1986). In the above

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mentioned case five students sued the university for not investigating or taking action for

complaints of sexual harassment by female students. The court found only one of the

case, with the student receiving a poor grade came under the quid pro quo claim (Keller,

1998). The court considered the other claims of the students insufficient for judicial

action. The court stated that such behavior constitutes sex discrimination in education just

as it does in employment (Cole, 1986).

Hostile environment harassment cases do not require the loss of any benefit but

the sexual harassment is severe enough to actually change the conditions of the

environment and create an abusive atmosphere, also to be actionable the harassment

should be unwelcome by the student (Guthrie-Morse, 1996). Hostile environment cases

would rarely involve a single incident; it would be characterized by repeated instances.

This was seen in Korf v. Ball State University case where current and former students

accused an associate professor of making unwelcome homosexual advances and offering

good grades for sexual favors. The professor denied the allegation and admitted a sexual

relationship with one student. He characterized the relationship with the student as

consensual. A hearing committee of the University ultimately dismissed the professor.

The professor claimed the dismissal violated his rights of due process because he had

inadequate warning. The courts claimed that just common sense, reason and good

judgement warned him of such results. The hearing committee found enough evidence

supporting the charge that Korf was guilty of unethical conduct because he used his

position and influence as a teacher to exploit students for his private advantage. The

courts indicated their dislike for sexual harassment when a faculty member challenges

disciplinary action on the ground that the student consented to sexual encounter. The

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courts reasoning is that a student may consent to a relationship with a teacher, but this

might put other students to a disadvantage if the professor favors the consenting students

in academic activities and evaluations (Keller, 1988).

The courts focus on whether a sexual advance by a person in authority is

unwelcome rather than whether the participation in the sexual act was consensual, The

courts recognize it as a dilemma for the subordinates who fear the lack of compliance

with serious consequences. There is a power difference between faculty and students and

the students are the ones who are in the vulnerable position. Regardless of the faculty’s

intention, the student may consent to unwanted sexual liaisons because of uncertainty

regarding the academic consequences of non-compliance (Keller, 1988).

Title VII as applicable to Educational Environment

In deciding the Gwinnet case the Supreme Court relied on the Merriter Savings Bank,

FSB v. Vinson case, which comes under Title VII. It has then been considered reasonable

to assume “Title VII employment law will be applied in deciding student versus faculty

harassment cases” (Guthrie-Morse, 1996 p. 51). There are five Title VII standards that

will be applied to educational environments. A professor’s request for or acceptance of

sexual favors in return for grades or other educational benefits is comparable to quid pro

quo sexual harassment. It is not very clear as to the extent to which hostile environment

claims and institutional liability may arise when no trade off is involved. Based on the

second standard of Title VII, a student can allege hostile environment harassment if

confronted with sexual jokes, remarks or uses obscene pictures of women. One court ahs

suggested the regulation of seemingly consensual faculty student relationship. The

determining question may not be consent but whether the student welcomed the activity.

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The important thing to understand here is the behaviors that a student may define as

welcome may change over time. In applying the third standard of Title VII to educational

settings, it is stated that in the absence of any judicial precedent for institutions claiming

risks of sexual harassment, the faculty member will come under the same standards that

apply for supervisory personnel. The fourth standard suggests that universities can reduce

liabilities for sexual harassment by implementing explicit policies prohibiting such

harassment and procedures for resolving such claims. Institutions must develop such

procedures and both students and faculty should be informed of them. Lastly the fifth

standard mandates the duty to prevent sexual harassment. If appropriate policies and

procedures are in place, the courts may be lenient in first time incidents of sexual

harassment. But in all probabilities, the institution will be accountable for professors

engaging in sexual harassment for the second time ( Guthrie-Morse, 1996).

Non-Instructional Relationship case

There is a difference if the case involves a consensual sexual relationship with no

allegations of harassment or outrageous public misconduct. Unlike the Korf v. Ball State

University case, in Naragon v. Wharton case, Naragon, a music instructor had a lesbian

relationship with a freshman student who was over eighteen years of age. The instructor

was not on in a position to evaluate, recommend or otherwise affect the student’s

academic progress. The student was not enrolled nor likely to enroll in any classes taught

by the instructor. The student never lodged a complaint against the instructor, though the

student’s parents expressed their concern to university officials. Upon investigation, the

instructor told the university it is a private matter and not the university’s business. The

university administrators decided in the “best interest of the university” to relieve the

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instructor of teaching assignments and re-assign her to research activities. The court

examined the court examined the university’s interest which was asserted by the

university that it based its decision on the belief that relationship between teachers and

students are unprofessional and likely to be detrimental to the students and to the

university. The court stated that the university was concerned that: such a relationship can

give the impression of abuse of authority, it can create in the mind of other students a

perception of unfairness and in most cases does affect other students opinion of the

teacher. This inherent power difference between faculty and students is applicable in

instructional context which includes coursework, evaluations, recommendations and so

on, and in such cases even a student’s consent cannot be assured. There is compelling

interest by the university to protect students from such exploitation and also other

students resulting in academic disadvantage. But in Naragon’s case, the relationship with

the student was outside the instructional context and when outside of instructional

context, an intimate faculty-student relationship resulting form coercion cannot be

justified. The teacher cannot threaten or reward the student academically for a sexual

favor. A bright line test can be formulated where “Intimate consensual relationship

falling outside the instructional context ate constitutionally protected from university

interference” (Keller, 1988 p. 41). So in the Naragon case, the relationship rose outside

the instructional context, there were no allegations of harassment, and unlikely the

instructor would ever academically supervise the student, the university had no right to

intervene (Keller, 1988).

Conclusion

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Educators do have a legal and ethical responsibility to prevent sexual harassment

within educational institutions. Even without legal precedents it is the noble ideals of

democracy within the academic community that indicates an ethical responsibility to

provide a harassment free environment. As noted earlier, faculty interact with students in

varied professional roles, and the line between an appropriate professional relationship

that helps in the student’s development and potential exploitation is not always drawn

easily.

Two recommendations within this area are: 1) More research on faculty student

relationship in higher education is needed. Unfortunately, in contrast to the available

literature regarding dual relationships in other professions, the ethics of dual relationship

in higher education has not received much attention and 2) Greater to educate and

sensitize faculty about faculty student relationships are needed. The efforts could involve

more discussion on such relationship issues in the professional literature as well as

educational programs aimed at current and future faculty (Rupert & Holmes, 1997).

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References

Cole, E. K., (1986). Recent legal developments in sexual harassment. Journal of

College and University Law, 13, 267-284.

Guthrie-Morse, B., (1996). Handling the confidential student complaint of faculty

sexual harassment: and administrative course of action. Initiatives, 57, 49-54.

Keller, E. A., (1988). Consensual amorous relationships between faculty and

students: the constitutional right to privacy. Journal of College and University Law, 15,

21-42.

Penney, S. W., (1996). Changing legal aspects of sexual assault and harassment:

implications for practice. Initiatives, 57, 47-52

Rupert, P. A. & Holmes, D. L., (1997). Dual relationships in higher education:

professional and institutional guidelines. Journal of Higher Education, 68, 660–678.

Vargyas, E. J., (1993). Franklin v. Gwinnett County Public Schools and its

implications on Title IX enforcement. Journal of College and University Law, 19, 373–

384

Wishnietsky, D. H. & Felder, D., (1994). The effect of “Franklin v. Gwinnett

County” on sexual harassment policy in secondary education. Initiatives, 56, 37-46

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