The University of Connecticut has banned "romantic relationships" between faculty and undergraduate students, a step that some attorneys feel is prudent for a higher education institution wanting to reduce the chances of sexual harassment complaints and legal entanglements under the federal law known as Title IX.
The new policy supplants a previous one that only strongly discouraged faculty-student liaisons. Violations of the new rules can lead to discipline up to and including termination of employment. The change comes as UConn prepares to hire a law firm to investigate its handling of allegations of sexual misconduct by a professor.
"The power difference between faculty and staff as compared to students means that any romantic relationship between a faculty or staff member and a student is potentially exploitative or could at any time be perceived as exploitative," UConn President Susan Herbst, wrote in a letter announcing the change. "The new policy more forcefully reflects our institutional values and prevailing higher education non-discrimination and anti-harassment principles."
Federal law requires universities to take measures to prevent and remedy sexual harassment as a condition of receiving federal education funding. A UConn administrator involved in drafting and implementing the new policy said the university is working to "support a learning environment that is … focused on student success."
"A workplace and an academic environment that assures mutual respect and non-discrimination is really essential to our ability to ascend to the levels we're headed to," said Elizabeth Conklin, head of UConn's office of Diversity and Equity and the University's Title IX coordinator. Previously, Conklin was an attorney at Livingston, Adler, Pulda, Meiklejohn & Kelly, an employee-side labor and employment firm in Hartford.
The new policy prohibits "romantic relationships" outright between undergraduate students and faculty and staff, as well as such relationships between faculty and staff and any graduate students they are supervising. Graduate students themselves are also prohibited from having "romantic relationships" with students over whom they hold positions of authority.
It wasn't immediately clear whether UConn's actions are part of a growing trend. An official at the American Association of University Professors said most colleges do not have outright bans on faculty-student romantic relationships. But Conklin said some schools do have outright bans, and that UConn looked at them in formulating its own policy.
UConn has adopted strict reporting requirements, which mandate that deans, directors, department heads and supervisors who become aware of "romantic relationships" banned by university policy report them to the administration. Failure to report prohibited conduct is itself a violation of the policy that could subject a supervisor to discipline.
"The reporting obligations are what really put teeth into this policy. It's clearly aimed at establishing a level of consciousness about what we used to call 'occasions of sin,'" said George O'Brien, managing shareholder at Littler Mendelson in New Haven, who represents several private universities in Connecticut. "What they're doing is saying these relationships, when there's a power differential, have an appearance of exploitation and they can turn into an exploitive situation at a moment's notice regardless of how willing they are when they were entered into."
Sexual harassment by university professors places institutions at legal risk. Title IX requires that institutions receiving federal financial assistance protect students against sexual harassment — including "unwelcome" sexual advances by university professors. However, federal law does not prohibit "consensual" and "welcome" faculty-student relationships.
In determining whether advances are unwelcome, the U.S. Department of Education's Office of Civil Rights explained in a 2001 guidance document that the government considers the "nature of the conduct and the relationship of the school employee to the student, including the degree of influence (which could, at least in part, be affected by the student's age), authority, or control the employee has over the student."
Schools found by the government to be in violation of Title IX risk loss of federal education funding — a crippling blow. And where a university has notice of a faculty member's sexual harassment and fails to take measures to stop it, the victim may recover damages in a private action under Title IX.
“Anything that protects a student is good,” said Stephan Seegar, a Stamford trial lawyer who last year represented a student in a lawsuit against Southern Connecticut State University alleging sexual harassment by a professor. “There’s a lack of a bright-line rule that has plagued the situation for a long time. Coming right out and saying there shall be no romantic relationships make it very clear to professors that there won’t be this conduct.”
Case By Case
The culture of higher education complicates determinations of whether relationships are willing or unwilling, lawful or harassing. University professors and students are encouraged to develop mentoring relationships and work closely with one another. Only 24 hours after UConn announced its new policy, Conklin said that several relationships had already been reported to her office. The university will decide what to do about existing relationships on a case-by-case basis.
Billie Dziech, a professor of English at the University of Cincinnati, has studied faculty-student relationships for more than 30 years, co-authoring two books, The Lecherous Professor: Sexual Harassment on Campus and Sexual Harassment in Higher Education. Dziech said that university professors are encouraged to be independent and may operate with less oversight than employees in other fields, creating an environment in which faculty may feel more free to act inappropriately.
"Academic freedom protects us," she said. "We tolerate eccentricity. In higher education, the weird [faculty member] may be the one who makes the discovery that cures cancer."
The reaction of university professors — and those who represent them — is mixed. Conklin said that the UConn chapter of the American Association of University Professors reviewed and commented on the new policy in the drafting stages. Richard Rockwell, the president of UConn's AAUP chapter, said that his group does, in fact, support the new policy
But the AAUP as a national organization opposes an outright ban on faculty-student relationships, calling the prohibition "an unrealistic expectation," while also acknowledging that the relationships pose risks.
"What we do recommend is that faculty take excessive care in engaging in a consensual relationship with a student, because of the power differential," said Anita Levy, senior program officer at the AAUP's Washington headquarters and formerly a professor at the University of Rochester.
Conklin said prior to announcing the new policy, UConn often learned of faculty-student relationships in their aftermath. When a relationship hits the rocks, those knowledgeable on the subject agree, the power differential between faculty and students can be even more troubling than when the relationship began. And perspectives can change in hindsight.
"All of us who have represented institutions of higher education have run into difficult cases … where faculty and students got entangled one way or another and it seemed to be consensual and then later, looking back at it, one or the other didn't think it really was," O'Brien said. "We think those are fairly common difficulties. [The new UConn] policy is telling the faculty members at UConn to watch out."
UConn is in the process of hiring a law firm to investigate its handling of accusations that Robert Miller, formerly head of the university's music department, engaged in sexual conduct with children. He is also accused of having sex with students, making visits to freshmen dormitories and providing drugs to students.
According to Connecticut Attorney General George Jepsen, university officials learned of allegations of Miller's misconduct between 2006 and 2011. This summer, UConn placed Miller on administrative leave and barred him from campus. Herbst's letter said the university has "been shaping [the new faculty-student relationship policy] for approximately one year and it is not in reaction to any specific instance or matter."
In an era of "hookups" and "sexting" scandals, UConn's use of the term "romantic relationships" might strike some as quaint. The full policy defines "romantic relationships" to include "intimate, sexual, and/or any other type of amorous encounter or relationship, whether casual or serious, short-term or long-term."
Conklin explained that the administration in fact initially drafted the policy in relation to "amorous relationships" rather than "romantic" ones — but a problem emerged.
"The consistent feedback was, 'We don't know what that word means.' Particularly from students," she said. "We did not want to pass a policy that, on its face, felt out of touch. 'Amorous' is the word we're getting at. But we need to be passing policies that students understand."•