Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The resignation of the dean of the University of California, Berkeley’s Boalt Hall School of Law in November 2002 in response to sexual harassment charges focuses new attention on age-old concerns. For years, students were sexually harassed, but the law offered neither a label nor a remedy. Women often had “a problem” with a professor — but the problem was hers, not his. Title IX of the Civil Rights Act, which prohibits sex harassment in schools receiving federal funds, has spawned a cottage industry of policies, procedures and prevention programs. But we still are far from solving the problem. The Berkeley incident is a case in point. The contested complaint alleged that former dean John Dwyer drove a first-year law student home after a party where she had been drinking. She passed out and awoke to find herself partially undressed, with the dean engaging in sexual conduct. Dwyer maintains the act was consensual. The episode also raised serious questions about university practices, including an alleged failure of the school’s Title IX officer to assure the student about confidentiality and nonretaliation rules. (The university says the student was assured that the office would enforce its policies against retaliation.) Only after she had graduated was the student willing to file a formal complaint. One of the faculty members she consulted has stated that she, too, was given ambiguous answers about school procedures, and that law school faculty had not received sexual harassment training. The Berkeley incident is not unique. A report released this month by the American Bar Association’s Commission on Women in the Profession, “Sex-Based Harassment: Workplace Policies For the Legal Profession,” compiled many examples of lawyers and law professors who do not appear conscious that harassment laws apply equally to them or that conduct they consider harmless might be experienced differently by subordinates. CAMPUS HIJINKS NOT AMUSING The problem is most apparent in student-faculty sexual relationships. As Caroline Forrell noted in the Journal of Legal Education (1997), very few institutions attempt to prohibit them, even when students are under the faculty member’s supervision. Many assume that universities cannot legislate love, and that such relationships often end in happy marriages. But these relationships are also fraught with risks; most students who experience sexual advances from professors find them unwelcome or believe that some element of coercion is involved. Even truly consensual relationships put academic integrity at risk, with the potential for unconscious bias resulting in real or suspected favoritism in evaluation, recommendations and mentoring. Given the power disparities involved, relationships that appear consensual at the outset may not remain so over time. Nor are the risks of abuse offset by theoretical remedies. Fewer than 10 percent of those who experience harassing conduct are willing to file complaints, according to research summarized in “Why Didn’t She Just Report Him?” by Louise Fitzgerald, Suzanne Swan and Karla Fisher in the Journal of Social Issues (1995). For most victims, the personal costs of public action are prohibitive, including time, energy and sometimes money. And their payoffs include shame, ridicule and blacklisting. Once a case becomes public, victims as well as perpetrators are on trial, and concrete evidence is often lacking. Even women who “win” in formal proceedings may lose outside them. The damages victims can prove often do not compensate for the experience of a harassment proceeding. Their reluctance to complain makes exploitative behavior less visible, and the need for bright-line rules less apparent. In the long run, such rules are critical to ensuring equal opportunity and academic integrity. In any workplace setting, individuals should avoid sexual relationships with those under their supervision, and if such a relationship begins, they should transfer their supervisory responsibilities. Leaders need to set the right example by avoiding any possibility of overreaching. Institutions should have clear policies with options for training and informal confidential resolution of complaints. When it comes to sex in schools, we should not have to ask who is minding the adults. Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School and is a member of the ABA’s Commission on Women in the Profession.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.