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UCLA psychology professor Paul R. Abramson has recently published a book arguing that adult college students and professors have a constitutionally protected right to have intimate relationships:
The rights to romance and to choose whom to love are as basic as the freedoms of speech and religion, Abramson writes in "Romance in the Ivory Tower: The Rights and Liberty of Conscience" (MIT Press). A university that suppresses such a choice "tramples the very nature of freedom itself," he declares.
Employment law professor Paul Secunda agrees in principle with Professor Abramson and feels that faculty and students have a protected liberty interest in forming private relationships. He feels their rights should only be interfered with when the relationship is disrupting the workplace. However, my sense is that relationships between people within an organization who are not equals is almost always going to cause a disruption in the workplace. The idea that a professor is having sex with a student is going to be the source of numerous rumors and is almost surely going to lead to accusations of favoritism. Even if the professor and student are in separate departments or schools (an unlikely scenario) other students are still going to perceive the student in question as getting some sort of unfair advantage by having a relationship with a professor.
There is a reason why these sorts of relationships have been almost universally prohibited. They almost always cause problems.
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Just because you may have a
Just because you may have a right to do something doesn't mean it's the wisest choice to actually exercise said right.
There is a reason why these sorts of relationships have been almost universally prohibited. They almost always cause problems.
That would be wise consideration #1, yes.
Sigh...
How does he figure that? The freedom to fornicate with undergrads is hardly a foundation for a democratic society. We allow freedom of speech to prevent dictatorships; we allow freedom of religion because eternity is a pretty long time. If two people really love each other, they can wait until the student graduates to start going at it.
That is all really beside the point. I'm looking through my constitution and cannot find anything about the Kama Sutra and professors. Even the unmarried law school profs haven't tried to tell us it's in there....
I always thought it was more
I always thought it was more of a job perk than a constitutional right. ;-) I'm with the "disruption of the workplace" doctrine myself. Consenting adults are both consenting, and adults. When the intersection of student and instructor lies wholly outside of the classroom relationship and both are consenting adults I don't see how they lose their liberty. (When it includes the classroom, it's a different story.)
We allow freedom of speech to prevent dictatorships; we allow freedom of religion because eternity is a pretty long time.
Um, we, the people, or we, the government? We, the people affirmed those rights as universal. The second sounds somewhat authoritarian. Didn't Hamilton have some thoughts on that?
Lastly, the word "should" in the title makes it sound almost obligatory....
Um, we, the people, or we,
The former, through restrictions upon the latter.
Pardon my imperfect phrasing.........
That's a good point... I wonder if professors would take lower pay in exchange for the ability to date their students.
Personally, I have no problem with professors dating students outside of their subject area (for example, an undergrad prof dating a med student), but do get squeamish about the potential for overlap. The general rule seems to be that, if there is a potential for the prof to have control over the student (grading, advising, research, etc), then the relationship is automatically off-limits.
Of course, that which is a matter of individual liberty is not always a constitutional right - which is mainly my problem with the argument, "I really like X, so it must be a constitutional right." The Constitution makes no guarantees about sexual liberty; whether or not it should do so is another matter.
My point on "We the people"
My point on "We the people" is that just because a right is enumerated does not mean it's not an "inalienable" right. Speech and religion are specific examples. And the reverse--just because rights are NOT enumerated does not mean they are not inalienable rights. Hamilton for one considered speech and religion as rights so basic as to not require enumeration, and argued that enumeration of the most obvious inalienable rights would result in those not enumerated not being considered rights at all.
The general rule seems to be that, if there is a potential for the prof to have control over the student (grading, advising, research, etc), then the relationship is automatically off-limits.
And an excellent general rule that is. Perfectly appropriate--as an employment rule. (Let's not forget that the student also has some interest here. As long as no "power relationship" exists or is likely in the immediate future, I don't see the argument for prohibition.)
Of course, that which is a matter of individual liberty is not always a constitutional right - which is mainly my problem with the argument, "I really like X, so it must be a constitutional right."
Good point. But....I seem to recall some SCOTUS decisions regarding both freedom of association and the right of privacy, as well as some substantive due process thingie regarding inimate associations. That's not to say there is a constitutional right to prof/student relationships, but that one would need to find a compelling state interest to ban them as a matter of law. Which would bring us back to the whole "power relationship" schema. And employment rules.
Pardon my imperfect phrasing...
You can stack up quite a pile before you hit parity with me. I've had more time to misspeak. ;-)
My point on "We the people"
I agree - jury trials for amounts in controversy over $20 is hardly fundamental.
We're speaking past in each other. I was addressing only the very narrow (and boring) issue of whether or not sexual relations between professors and students are a Constitutional right. Sure, there are unenumerated, constitutional rights (freedom of association), but mostly, my point was that performing various sexual acts with one's professors is not either fundamental (so as to be within unenumerated rights) or explicitly within the Constitution. There rationale behind rights of free speech (one right which is preservative of all others) and religion (fundamental to one's life) does not apply to messing around with professors.
As for freedom of association, right to privacy, and substantive due process - I do get squeamish about finding a penumbra in the penumbras, especially when the rationale behind those penumbras does not apply to the instant issue, and when the State action is not one where the government acts as a government (states qua states). It would be difficult to conduct one's daily affairs (or to act in a free manner, without government interference) without the freedom of association. Explicitly political groups are an obvious example of this, but there are also religious and social groups implicated therein and who may affect the political process (whether by election of representatives or determinance of issues that should be political).
I don't think the right of privacy would be implicated. First of all, I'm not sure how screwing a professsor is really "private," no matter how much the parties may believe that it will be so initially. ;) Secondly, it's not as if the government is restricting sexual relations based upon (to borrow out of context) "discrete and insular" groups. This isn't a miscongeniation (sp?) ban, or the government invading one's house.
The function of a state university for higher education (emphasis on higher, where the market is overwhelmingly private) is hardly something utterly fundamental to state action - it's more a private function that happens to be carried out by a state.
C'mon, you can't be that old.... ;)
It is still a state
It is still a state regulation of private sexual conduct between consenting adults. Personally speaking, that should fall (if anywhere) under the employment rules of the school. If there is no "power relationship" it simply should not be a matter for state concern. Those involved are people before they are student or instructor--and if the student/instructor relationship does not directly exist between them, I don't see any good application. In terms of employment rules, a different case can be made.
When I worked for a major brewery I was subject to immediate firing if caught drinking the competitor's products in public while in company uniform. Many employees grumbled about that rule, and a couple lost their jobs to it--but I accepted that restriction when I accepted the employment. Since I hated (still hate) thin beer, I just kept a spare shirt and jacket in the car.
RE: "discrete and insular"--Lawrence would be more on point there. And both right of association and right of privacy bring in the topic of intimate association.
C'mon, you can't be that old.... ;)
Let me put it this way--I saw JFK speak in person the day before he died. I was, however, entirely too young to appreciate it. :-)
Let me put it this way--I
Okay, I take that back. (Just add it to my tab of things misspoken.)
I'm a child of the Reagan administration.
Clearly, you aren't of the mind that closing your eyes and pretending that bad jurisprudence will just go away (kind of like the noises in an empty house at night) isn't your thing. Need you make me acknowledge such constitutional atrocities? :p
1. I'll assume that you did not mean to limit to student/instructor when you get situations such as faculty advisor for a law review note, or college advisor who needs to sign off on class schedules and graduation forms.
2. That brings me to my next point: in some instances, it's not always clear that the student will never have the professor in class again. There is good reason to prohibit relationships when the professor teaches in the same "school" as the student ("school" is in quotes, as a law prof/law student relationship would be prohibited, but a law student/undergrad prof would not; although they are in the same university, they are in different divisions thereof).
Of course, this all depends on the level of scrutiny. I think that a prohibition on professors dating students (i.e. their own students) would meet strict scrutiny, as it undermines the educational mission of the school.
Arguably, there is an academic freedom issue as well: if you're allowed to admit presumptively unqualified persons on the basis of race to enhance your academic environment, you would also be allowed to trample on the rights of intimate association. (I would be very happy to see prof/student sex prohibitions lose under this - again, I take the "pretend it doesn't exist and maybe it will go away" attitude towards Gratz & Grutter.)
Beyond that, open question. My guess: 5-4, Kennedy as swing vote. And the sun will rise in the east tomorrow.
1. I'll assume that you did
1. I'll assume that you did not mean to limit to student/instructor when you get situations such as faculty advisor for a law review note, or college advisor who needs to sign off on class schedules and graduation forms.
Nope. I'd fall back on that old saw of the power relationship. If it doesn't exist and is not reasonably likely to exist in the future, I don't see a problem. If it does exist or is reasonably likely to exist in the immediate future, then an employment rule would seem not only valid, but wise. "Same school" would seem a reasonable boundary.
Clearly, you aren't of the mind that closing your eyes and pretending that bad jurisprudence will just go away (kind of like the noises in an empty house at night) isn't your thing. Need you make me acknowledge such constitutional atrocities?
Sorry. We gotta work with what is.
PS--I saw JFK mostly from my father's shoulders. It was crowded, and I was very short. :-)