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Following a misunderstanding with a student over the meaning of “no” and the position of her skirt, John Dwyer, the dean of the University of California, Berkeley’s Boalt Hall School of Law, was recently forced to resign in disgrace. The incident, and others like it at colleges and law schools around the country, have schools tripping over themselves to enact formal “dating” or “consensual sex” policies that are to be triggered the instant that the ordinarily vertical faculty-student relationship threatens to become horizontal. One might think the worst solution to ambiguous, complex legal questions — such as “When does having coffee become dating?” and “Is she flirting with me?” and “Why do we have to talk about my paper at the Comfort Inn?” — would be to codify a set of even more ambiguous rules to govern the circumstances. But the law loves nothing better than to codify ambiguity. Of any class of humans on the planet, law professors are uniquely inclined to deconstruct, constitutionalize, federalize, and/or hypothesize a rule into tatters. These are the people who can find a constitutional violation in a “Please clean up after your dog” sign. Does anyone truly expect them to take these draconian new codes and regulations … lying down? New student-teacher “dating” regulations have spawned seminars, schoolwide “town hall meetings,” and literally dozens of law review articles, all seeking to dissect and evaluate their legal and constitutional implications. The law review articles sort themselves principally into two classes: Approximately half are written by law professors who seem to want to have more sex with their students (doctrinally, these articles tend to invoke privacy, the First Amendment, and “my-wife-doesn’t-understand-me” readings of the new sex codes). The other half appear to have been written by young women whose relationships with their contracts professors ended badly after the final exam. All of this scholarly work proves that schools are making a bad situation worse with these ham-fisted efforts to regulate consensual sexual relationships — particularly among the kinds of emotionally fragile, supremely bored, socially backward people who cluster around our law schools. If I learned anything at Stanford Law School, it was that vague, unenforceable rules are made to be broken. And these policies range from vague to incomprehensible, unenforceable to unenforced, from patronizing to silly, and back again. They do, however, make for some fun Valentine’s Day reading. Take, just for an example, the brand-new policy at the above-mentioned Stanford Law School, wherein professors wishing to date their students may do so, so long as they promptly give up “any supervisory or evaluative function” over them. This may seem, at first blush, to correct for the apparently crushing power imbalance between faculty and students. But just think about the lawsuits. Any evaluative function? Suddenly the benign “Was it good for you, darling?” becomes an evidentiary nightmare. The College of William and Mary, responding to an unfortunate faculty-student sex melodrama involving a creative writing instructor who published the details of his affair with a married student in GQ, just enacted an all-out ban on dating between professors and all undergraduates, and a ban on dating between faculty and grad students under their supervision. Similarly, Ohio Northern University imposes a strict ban, providing that “faculty and staff members should not have sexual relations with students to whom they are not married.” This policy not only has the advantage of legal clarity, it also provides a simple remedy for the resolution of any apparent violation: Simply whisk your student off to the Elvis Chapel in Vegas before the end of the term, and all will be forgiven. The Committee on Women’s Concerns at the University of Virginia proposed a similar all-out ban on sexual relations between any faculty and students, but the faculty there objected strenuously, and the rule never passed. The Committee on Women’s Concerns ought to have promptly posted the names of those enraged faculty members in the ladies’ restrooms, so students could know which faculty members see teaching at law school as an academic enterprise, and which treat it as an alternative to Internet dating. Turns out that the University of Michigan is a pretty attractive place to teach if you really want to be dating the students. Its schoolwide Sexual Harassment Policy announces that such relationships “are not expressly prohibited.” However, Michigan does require that faculty disclose the existence of such relationships “to the appropriate administrative supervisor so that arrangements can be made for objective evaluation and decision making with regard to the student.” Meaning that added to the thrill of sleeping with his torts professor, a student faces the joyous prospect of 12 subsequent meetings to share all the juicy details with the dean. Call this the Ken Starr approach — absolution through procedural voyeurism. While the faculty handbook for the University of Southern California purports to “discourage” consensual faculty-student relationships, it also permits them as a de facto matter, asking only that faculty not show favoritism to the students they are sleeping with, or penalize students who reject them. (Yes, on closer inspection this is actually a sexual harassment policy rather than a consensual dating policy, but maybe at USC this is still a finely nuanced legal point.) Because we are all lawyers here, even a simple rule can devolve into a three-step exercise in burden shifting. Thus the NYU Law School policy provides: “There is a presumption that sexual relations are not consensual when they are entered into by two people, one of whom exercises power conveyed by the law school … over the other. … [The policy] does not prohibit sexual relations, but rather places upon the more powerful party the burden for assuring that the relation is truly consensual.” Presumably, NYU students sleeping with their professors must now provide a waiver in triplicate, a notarized consent form, and a note from their mothers confirming that Brandi really does think Professor Smith is, like, totally hot. The University of Michigan takes the position that there really is no such thing as meaningful consent in a student-teacher affair. While the policy, as noted above, permits such affairs with conditions, it further reads: “In the event of a charge of sexual harassment, the university will, in general, be unsympathetic to a defense based upon consent when the facts establish that a professional faculty-student … power differential existed within the relationship.” This is a product of the same school of legal thought that holds that sex is rape, porn is violence, and women are 9 years old in perpetuity. The true problem with consensual affairs between faculty and students can be summed up as a study of pathologies. It’s a version of the same logic used by comedian Chris Rock in explaining that it wouldn’t have been sexual harassment had Clarence Thomas looked like Denzel Washington. What start as consensual, grand Shakespearean love affairs degenerate into ugly imbalances in power only when they end badly — as they are wont to do. A 1986 study revealed that 51 percent of the female graduate students who entered into what they believed to be consensual relationships with faculty later felt there was “some degree of coercion” there after all. And while more than one law review article points out that many professor-student romances have blossomed into happy marriage (and in some cases, these relationships blossom into great strings of happy marriages for the same professor), it’s more often the case that student-teacher relationships melt into bloodbaths. And that professors who are the most wildly protective of their “privacy” are the ones most upset when their names emerge on the front page of the campus newspaper as the named defendant in a lawsuit. The Bible says that Jacob had to wait and toil for years before he was allowed to know Rachel. In the, ah, Biblical sense. One would think that professors could hold off until after finals. One would think that a student could just drop the class. A self-policing policy of this sort would not only save a lot of grief and shattered reputations, it would also save a good many trees — and a lot of billable hours. Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate . She is coauthor of a humor book, “Me v. Everybody,” forthcoming this spring from Workman Press. E-mail: [email protected]

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