HARASSMENT ON CAMPUS: BEYOND THE BASICS
Steven G. Olswang
University of Washington
Barbara A. Lee
Rutgers, the State University of New Jersey
“Critics of sexual-harassment standards argue that you can’t legislate passions;
true enough. But you can legislate what to do about people who act on them
improperly.” Naomi Wolf, “The Silent Treatment,” New York, March 1, 2004, 23-29 at
29.
Despite the hundreds of court opinions, thousands of training programs, and
millions of dollars expended on settlements and judgments in sexual harassment cases,
harassment on campus remains a serious problem. A working knowledge of the basics of
sexual harassment law and a clear policy against sexual harassment of (and by)
employees and students is a good start, but not enough to prevent inappropriate conduct,
internal complaints, agency filings, and litigation. Below are some issues that may
confront faculty, administrators, and counsel, and some practical suggestions for dealing
with these issues.
Is it harassment or academic freedom?
Whether in an employment relationship or an educational relationship, harassment
must be unwelcome and disruptive in order to be legally actionable. Institutional policies
may also address conduct that might not meet the legal standard for liability, but which
interferes with an individual’s ability to work or learn in an environment that is free of
discrimination. When the alleged harasser is a faculty member and the target is either a
student or another faculty member, the individual accused of harassment may claim an
“academic freedom” right to engage in the behavior.
Scope of academic freedom.
Academic freedom protects a faculty member’s research (and its publication),
classroom discussion and teaching, and speech as a citizen and community member.1
Protected conduct may include speech, either in or outside of the classroom, conduct, or
the content of course assignments.
This right is not unlimited, however, and AAUP statements and policies
acknowledge important limitations on faculty conduct. For example, the “1940
Statement” notes that faculty “should be careful not to introduce into their teaching
AAUP, “1940 Statement of Principles on Academic Freedom and Tenure,” AAUP Policy Documents and
Reports. Washington, DC: AAUP, 2001, pp. 3-10.
1
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controversial matter which has no relation to their subject.” The statement also notes
that, when faculty speak or write as citizens, “they should at all times be accurate, should
exercise appropriate restraint, should show respect for the opinions of others, and should
make every effort to indicate that they are not speaking for the institution.”2
The AAUP Statement on Professional Ethics acknowledges the responsibility of
faculty to behave professionally with respect to interactions with students:
They hold before [the students] the best scholarly and ethical standards of their
discipline. Professors demonstrate respect for students as individuals and adhere
to their proper roles as intellectual guides and counselors. Professors
make
every reasonable effort to foster honest academic conduct and to ensure that
their evaluations of students reflect each student’s true merit. . . They avoid any
exploitation, harassment, or discriminatory treatment of students . . .”3
Furthermore, the Statement on Professional Ethics acknowledges that faculty have
similar responsibilities to their fellow faculty members:
As colleagues, professors have obligations that derive from common membership
in the community of scholars. Professors do not discriminate against or harass
colleagues . . .4
Scope of sexual harassment
Sexual harassment, a form of sex discrimination, is prohibited by laws protecting
employees5 and students.6 Standards for institutional liability for unlawful harassment
differ depending upon whether the plaintiff is suing under Title VII (or similar state law)
or Title IX. Sexual harassment is a form of sex discrimination recognized under Title VII
of the Civil Rights Act which prohibits sex discrimination in the terms and conditions of
employment, and Title IX of the Education Amendments which prohibits sex
discrimination in educational programs and activities. Donna Euben, Sexual Harassment
in the Academy: Some Suggestions for Faculty Policies and Procedures, 12th Annual
Legal Issues in Higher Education Conference, AAUP (2002), available at
http://www.aaup.org/Legal/info%20outlines/legsexha.htm.
2
Id. at 3-4.
AAUP “Statement on Professional Ethics,” AAUP Policy Documents and Reports. Washington, DC:
AAUP, 2001, pp. 133-134, at 133.
3
4
Id. at 134.
5
42 U.S. C. §2000e et seq. (Title VII of the Civil Rights Act of 1964).
6
20 U.S.C.§1681 et seq. (Title IX of the Education Amendments of 1972).
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Assertions that academic freedom protects the speech or conduct of the alleged
harasser, typically arise when a student complains of conduct by a faculty member, either
in class or as part of the student-instructor relationship (such as a discussion in the faculty
member’s office or at social events occasioned by the student-instructor relationship). In
some cases, however, faculty who have allegedly harassed colleagues by circulating
writings of a sexual nature about them have claimed academic freedom protection as
well. Guidelines for evaluating sexual harassment claims under Title VII have been
issued by the Equal Employment Opportunity Commission, and are codified at 29 C.F.R
Part 1604.11. Guidelines for evaluating sexual harassment claims under Title IX have
been issued by The Office for Civil Rights in the Department of Education: “Sexual
Harassment Guidance: Harassment of Students by School Employees, Other Students, or
Third Parties,” which can be found at
http://www.ed.gov/about/offices/list/ocr/docs/sexhar00.html.
There are two types of sexual harassment: Quid pro quo and Hostile Environment.
Quid pro quo is a type of harassment that occurs when the terms or conditions of
employment, or educational benefits, are conditioned on an individual’s submission to or
rejection of sexual advances or conduct of a sexual nature. Euben, AAUP (2002). The
harassment involves an implied contract based on a power relationship which means that
the perpetrator must be in a position of authority in the institution. In such cases, the
institution will be strictly liable for the harassment. Id.
A hostile environment occurs when unwelcome sexual conduct is sufficiently
severe, pervasive or persistent so as to unreasonably limit or interfere with the terms and
conditions of employment or educational benefits, and can be created by anyone involved
in a university program or activity such as faculty, guests, students and administrators.
Id. For a university to be liable for this type of harassment, it must generally receive
some kind of notice and fail to respond to it in a timely matter. In determining whether
sexual harassment is severe, pervasive or persistent, courts use a totality of circumstances
test and consider: “(1) the nature, scope, frequency, duration, and location of an incident
or incidents; (2) the identity number, and relationships of persons involved; (3) the
perspective of a ‘reasonable person’ of the same age and gender; and (4) the nature of the
higher education context and the educational mission.” Id. For example, in Mandsager
v. Univ. of N.C. at Greensboro, 269 F.Supp.2d 662 (M.D.N.C. 2003), a doctoral student
alleged violations of Title VII, hostile employment environment and employment
retaliation. While the student was enrolled, she was employed by the university as a
graduate assistant, a clinical supervisor, and a teaching assistant. The student’s direct
supervisor allegedly put his arms around her, called her “honey,” stated that if he were
not married he would be courting her, signed office correspondence to her with the terms
“affectionately” or “love,” and ultimately propositioned her. In denying the defendant’s
motion to dismiss the Title VII hostile environment claim, the federal district court stated
that to prevail, an employee must establish four elements: that she was harassed because
of her sex; that the harassment was unwelcome; that the harassment was sufficiently
pervasive or severe to create an abusive working environment; and that some basis exists
for imputing liability to the employer. The court found that the plaintiff alleged sufficient
facts for the court to infer that the required elements of the cause of action were present;
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particularly as the plaintiff sufficiently alleged that the head of the offending professor’s
department actually knew of the harassment and failed to take reasonable remedial
action.
Under Title IX, the U.S. Supreme Court has ruled that when a teacher sexually
harasses a student, the student cannot recover damages unless an official with the power
to address the harassment had actual notice of the harassment and was deliberately
indifferent. Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274 (1998). In
Gebser, a high school student entered into a sexual relationship with her teacher and did
not report the relationship to school officials. During this time, parents of two other
students complained to the principal about the teacher’s suggestive comments in class.
The principal advised the teacher to be careful of what he said in class and did nothing
more. A police officer later discovered the teacher and student engaged in sexual
intercourse and arrested the teacher. The school thereafter fired the teacher. The student
and parent sued the school district and the teacher under Title IX for sexual harassment.
The Supreme Court affirmed the district court’s grant of summary judgment in favor of
the school district on all claims noting that it would frustrate the purposes of Title IX to
allow damages to be recovered against a school district for a teacher's sexual harassment
of a student without actual notice to an appropriate school district official.
Application of the Gebser rule was recently demonstrated in Hendrichsen v. Ball
State Univ., 2003 U.S. Dist. LEXIS 3710, (S.D. Ind. 2003), where a student majoring in
computer science sued the university claiming that she was sexually harassed by a
computer science professor who also lived in the student’s university housing complex.
The professor initiated conversations with the student at her apartment, sent several
bunches of flowers to her apartment, and continued to send flowers on two other
occasions after the student communicated that she was not interested in having any
contact with the professor besides the appropriate student-professor relationship. The
court granted the university’s summary judgment motion because the student offered no
evidence that the university, through its employees, acted so recklessly or unreasonably
to indicate deliberate indifference to her complaint. Several university officials referred
the student to the proper investigatory body, interviewed the parties and gathered facts to
illuminate the nature of her claim. Furthermore, even if the university was deliberately
indifferent to the student’s claim, the harassment was not severe or pervasive enough to
be actionable under Title IX. The court noted that taken as a whole, the brief series of
unwanted communications from the professor, however uncomfortable for the student,
would not be perceived by a reasonable person as severe, threatening, or humiliating.
With the increased use of electronic communication and computer use, there is an
increased possibility for sexually oriented, vulgar humor and offensive material surfacing
in electronic communications. Consequently instances of sexual harassment might arise
through the use of e-mail, chat rooms, videos, computer displays and screensavers.
Some educational institutions have chosen to address this issue through computer use
policies or ethical conduct and harassment policies. For example, the North Harris
Montgomery Community College District policy states:
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The following conduct by computer uses will be treated as a violation of this
policy and may subject the user to discipline, including loss of computing
privileges, up to and including termination for an employee and dismissal for a
student: (1) computing resources used in a manner that disrupts the work or
educational environment; (2) intentional use of computing resources to store,
download, display print or e-mail computer images that constitute “obscene
materials”…that are not directly related to or required for a specific educational
course or research directly related to an educational program; (3) the display or
transmission of messages, images, cartoons or other messages or images that are
sexually explicit or that demean a person on the basis of race, ethnicity, gender,
national origin, disability, and religion may constitute prohibited harassment…
Sandra McMullan Liggett. Sex and the Academy Institutional Policies and
Training Issues, citing North Montgomery Community College District Computer
Use Policy.
Standard for academic freedom protection
In determining whether alleged harassment is protected by academic freedom, the
context in the speech or conduct occurs, the relationship between the speech or conduct
and the furtherance of some appropriate educational purpose, and even the location of the
behavior can be relevant. A sexual comment that might be appropriate in a course on
human sexuality might be irrelevant, and thus potentially harassing, if made in a course
about a subject that bears no relationship to sexuality.
Both scholars and the AAUP seem to agree on the general standard: that the
speech or conduct must be germane to the subject of the course. The AAUP has issued a
statement, “Sexual Harassment: Suggested Policy and Procedures for Handling
Complaints.”7 The statement addresses speech or conduct in the teaching context, saying
that sexual harassment occurs when:
Such speech or conduct is reasonably regarded as offensive and substantially
impairs the academic or work opportunity of students, colleagues, or co-workers.
If it takes place in the teaching context, it must also be persistent, pervasive, and
not germane to the subject matter. . .”8
One approach is to examine the apparent purpose of the speech. Is its purpose to
advance the learning process, or to advance some personal interest of the faculty
member? Does a discussion of a professor’s own sexual behavior, for example, advance
the purpose of the course, or is the faculty member discussing his or her own behavior in
an attempt to entertain the class? One scholar has suggested that a distinction be drawn
between “professorial” speech or behavior, which is designed to further the intellectual
AAUP, “Sexual Harassment: Suggested Policy and Procedures for Handling Complaints.” AAUP Policy
Documents and Reports. Washington, DC: AAUP, 2001, pp. 208-210..
7
8
Id. at 209.
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content of the course, and “nonprofessorial” speech or behavior which only furthers the
instructor’s personal interests.9
Classroom speech—litigation by faculty. Courts reviewing faculty members’
challenges to discipline meted out for allegedly harassing classroom speech or conduct
have focused on the relevance of the speech, conduct, or course assignments to the
subject matter. For example, in Silva v. University of New Hampshire, 888 F. Supp. 293
(D.N.H. 1994), a federal trial court criticized a public university’s imposition of
discipline and mandatory counseling for a professor accused of using inappropriate
verbal imagery in a class on writing.10 The court found that the university had not given
the professor notice that the conduct or speech was a violation of its anti-harassment
policy. It also found that the university had violated the professor’s academic freedom by
punishing him for speech that was relevant to the purpose of the course. Furthermore, it
found that the sexual harassment policy itself violated the professor’s academic freedom
rights, as protected by the First Amendment.
Similarly, a federal appellate court ruled that a college’s discipline of a professor
of remedial English for using vulgarities and obscenities in class, and for requiring his
students to write on topics of a sexual nature violated the professor’s due process rights
because the sexual harassment policy under which he was disciplined was
unconstitutionally vague. Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir.
1996). Because Cohen had used these teaching methods for many years without being
warned that they violated institutional policy, the court ruled that he was entitled to infer
that his techniques were “pedagogically sound and within the bounds of teaching
methodology permitted at the College,” according to the court. The court did not analyze
the speech at issue, nor determine whether it was germane to the subject of remedial
English.
But in Rubin v. Ikenberry, 933 F. Supp. 1425 (C.D. Ill. 1996), a federal trial court
upheld the University of Illinois’ finding of sexual harassment against a professor of
education who discussed in class his sexual history, his practice of cooking breakfast in
the nude, and his views of the type of underwear that women should wear, among other
things. He also asked one of the complaining students personal questions about her
marriage, her children, and her age. The court determined that the speech did not address
a matter of public concern and thus was not protected by the First Amendment. It also
examined the nature of the comments, both in and out of class, and their relevance to the
subject matter of the course, to determine whether the University’s characterization of the
comments as harassing was reasonable. Said the court:
[The University’s] decision also does not appear unreasonable based on the
information in the record as to the purpose and focus of Elementary Education
9
See Michael A. Olivas, “Reflections on Professorial Academic Freedom? Second Thoughts on the Third
‘Essential Freedom’,” 45 Stanford L. Rev. 1835 (1993).
The professor had used sexual imagery to discuss the concept of “focus” in writing, and illustrated the
concept of “metaphor” by likening a belly dancer to a plate of jello on top of a vibrator.
10
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The Court is unable to understand how a reasonable jury could conclude that
many of Rubin's classroom comments could be appropriate for teaching students
how to teach elementary school social studies classes, to say nothing of Rubin's
comments to Braun outside the classroom. Rubin's classroom comments which
have a sexual focus do not appear connected to the course content and legitimate
objective of teaching students how to teach elementary school social studies. The
degree of departure from the expected course content to Rubin's comments
appears extensive. Their relevance is quite attenuated.
The Court recognizes that, in any classroom situation, professors and students
alike will make unrelated or seemingly unrelated comments. The dilemma exists
in characterizing such comments. How is the Court to assess with any certainty
whether the comments are neutral, politically incorrect but protected, or offensive
enough to give rise to or require a University response? What is certain is that a
university's response to sexual harassment grievances must be reasonable.11
In Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001), cert. denied, 534 U.S. 951
(2001), a federal appellate court upheld a disciplinary suspension of a professor for using
sexually offensive language in his English class. According to the student who
complained, Bonnell added “his own personal comments” to stories that the class was
reading, “taking advantage of [the class discussion] to express his own previous sexual
experiences.” When administrators admonished Bonnell and gave him a copy of the
complaint, he distributed it to the students in all of his classes (having redacted the
author’s name), posted a copy of her complaint on a bulletin board outside his classroom,
and distributed the complaint to over 200 faculty members with a “satirical” essay he had
written in reply. Although the court ruled that the essay was protected by the First
Amendment as a matter of public concern (the treatment of students at the college), it
ruled that the classroom speech about which the student complained was not germane to
the subject matter, and thus was unprotected. The court then balanced Bonnell’s First
Amendment right to circulate the essay against the college’s interests in maintaining the
confidentiality of student harassment complaints, disciplining faculty who retaliate
against students who file such complaints, and maintaining an environment conducive to
working and learning, and found for the college. It therefore reversed the trial court’s
award of a preliminary injunction.
Classroom speech—litigation by students. A recent case from the Second Circuit
demonstrates that prompt, responsive action by a university when a student files a
complaint may avoid institutional liability, even if the offending faculty member is
potentially liable. In Hayut v. State University of New York at New Paltz, 352 F.3d 733
(2d Cir. 2003), a student sued the university, alleging that the professor’s conduct
violated Title IX. The student complained that her political science professor, Young,
had targeted her with sexually-charged remarks and had created a hostile academic
environment. The professor repeatedly called the student “Monica” because of a
purported resemblance to Monica Lewinsky. In addition to calling her “Monica,” the
11
Id. at 1443.
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professor would ask her questions about “her weekend with Bill” in front of the class and
made other sexually suggestive references implying that the plaintiff was engaging in
behavior similar to that of Ms. Lewinsky. Although the plaintiff did not complain about
Young’s behavior until near the end of the semester, university officials, including the
department chair, the dean, and the assistant to the president responded promptly to her
oral complaint and counseled Young about his behavior. Young resigned shortly
thereafter. The court ruled that the professor’s comments were sufficiently offensive,
severe, and pervasive to create a hostile academic environment, and were directed at
Hayut because of her gender. The court also ruled that the university’s response to
Hayut’s complaint was reasonable, timely, and in compliance with university policies.
Speech outside the classroom—litigation by faculty. The University of Illinois
prevailed in another challenge by a faculty member to nonrenewal on the basis of sexual
speech. In Trejo v. Shoben, 319 F.3d 878 (7th Cir. 2003), Trejo, other faculty, and several
graduate students attended a dinner at a scholarly conference. Trejo engaged in a lengthy
discussion of the sexual behavior of primates, made sexually suggestive comments to
several of the female graduates students during the conference, and continued to make
similar comments after the group returned to campus. He also asked several graduate
students for dates. The department chair and dean investigated, determined that Trejo’s
behavior had been unprofessional, and decided not to renew his contract. The appellate
court affirmed the trial court’s award of summary judgment to the University, stating that
the speech in question was not a matter of public concern, and thus was not protected by
the First Amendment. The speech had no pedagogical content nor relevance, according
to the court.
The statements were simply parts of a calculated type of speech designed
to further Trejo's private interests in attempting to solicit female
companionship and, at the same time, possibly to irritate the other
graduate students to whom he was speaking. The record before us makes
clear that Trejo was prattling on before a table of acquaintances who had
been drinking alcoholic beverages in a noisy restaurant/bar rather than
lecturing to students in a classroom setting on a topic relevant to their field
of study.12
Speech outside the classroom—litigation by students. In Litman v. George
Mason University, 131 F. Supp. 2d 795 (E.D.Va. 2001), aff’d in part, vacated in part,
2004 U.S. App. LEXIS 3533 (Feb. 25, 2004), a student challenged her dismissal from the
university and retaliation under Title IX. The student had complained that a professor for
whom she served as a research assistant had stalked her, made unwelcome sexual
comments to her, and asked her questions about her sex life. The university investigated
Litman’s claims, ordered the professor to “stay away” from Litman, but did nothing
more. After the investigation, Litman was unable to find a professor to supervise her
senior research project. She believed that the other faculty were retaliating against her
for filing the complaint against a colleague, and she sent “suggestive and hostile” email
messages to those faculty members. Those faculty members filed a harassment
12
Id. at 887.
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complaint against Litman, which was adjudicated by the university’s disciplinary board,
resulting in Litman’s dismissal from the university. The trial court dismissed Litman’s
claims of harassment and retaliation, stating that the university did not have notice of the
harassment because the professor to whom she reported the harassment did not have the
authority to cure it, and that Litman could only recover for retaliation if she could show
that the university intentionally retaliated against her. The appellate court upheld the
dismissal of the harassment claim, but reversed the dismissal of the retaliation claim,
ruling that the lack of written notice by the student did not defeat her claim of retaliation.
Suggestions for Analyzing Harassment Claims when Academic Freedom May be an
Issue
1. Where did the complained-of speech or conduct occur? In a classroom setting or
tutorial setting (e.g. faculty office, library, laboratory, athletic practice or game), or a
social setting?
2. If in an educational setting, is the speech or conduct germane to the subject matter of
the course/athletic event/educational activity?
3. Who is making the determination that the speech or conduct is germane (academaic
administrator? Student affairs administrator? Judicial board administrator? EEO staff
member?)
4. If the speech/conduct has persisted for a year or more, did departmental faculty, chair,
dean know about it?
5. Did the speech/conduct occur in a public setting in front of other students or faculty?
6. Was the speech/conduct directed at one or more students?
7. Was the speech/conduct directed at an individual or group on the basis of gender?
8. Does the speech/conduct advance the instructor’s personal interest, as opposed to
his/her professorial interest? In other words, does it involve stories about friends, spouse,
family members, discussion of the instructor’s or others’ physical characteristics, health
problems, social life, fantasies, etc.?
9. Can the speech/conduct be objectively characterized as offensive and/or provocative?
10. Is this a single incident, or is there a pattern of behavior or speech that could meet the
“severe and pervasive” standard?
11. Consider consulting an external expert in the discipline to ascertain whether the
speech/conduct would be regarded by the discipline as germane to the subject matter of
the class.
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Investigations during the promotion/tenure process
At many colleges and universities, there is a lengthy promotion and tenure review
process with deadlines that are taken very seriously. The process and deadlines may be
contractual in nature if they are contained in a collective bargaining agreement, faculty
handbook or other policy document with contractual significance. For these reasons, the
emergence of a complaint about a promotion or tenure candidate’s behavior that could
influence the outcome of the decision must be responded to appropriately and in a timely
manner.
If, however, the complaint is about sexual harassment, academic misconduct, or
some other serious charge, the investigation may require more time than the “contractual”
promotion or tenure process would otherwise allow. Ideally, the faculty handbook, union
contract, or other policies would provide for this possibility by spelling out how the
institution will respond and the effect of such a serious complaint on the timetable for
promotion or tenure. But in a less-than-ideal situation where institutional policies are
silent, how should both of these issues be resolved?
These issues were raised in Tacka v. Georgetown University, 193 F. Supp. 2d 43
(D.D.C. 2001). Although not a case involving alleged sexual harassment, the case is
instructive in its attention to the conflict between the timeline and process for a tenure
decision and the separate process for responding to a charge of serious misconduct.
Professor Tacka , a professor of music, was reviewed for promotion and tenure during the
1997-98 academic year. As part of the tenure review process, the chair of Tacka’s
department had solicited a review of Tacka’s scholarly work by a scholar from the
University of North Texas. That individual accused Tacka of plagiarizing a book written
by Tacka’s dissertation advisor, which Tacka allegedly had used for an article he had
published.
The faculty handbook contained a provision for investigating and resolving
allegations of academic misconduct. Tacka learned of the plagiarism allegation, and
asked the department chair to suspend the tenure review deliberations pending the results
of the misconduct review process. The tenure review continued, however, and Tacka was
denied tenure as a result of a negative departmental vote and a negative university-wide
tenure committee vote. Tacka was not given an opportunity in the tenure review process
to defend against the plagiarism charge. The chair waited until the tenure review process
was completed to forward the plagiarism charge to the Research Integrity Committee for
its review. The following fall, the Research Integrity Committee issued its finding that
Tacka had not committed plagiarism. Tacka was awarded tenure the following spring.
He sued for breach of contract, asserting that the faculty handbook’s provisions required
the university to make the determination concerning the plagiarism charge through the
Research Integrity Committee, and that the department’s decision to make the negative
tenure decision prior to referring the complaint to the appropriate committee was, in
effect, a determination by an unauthorized group (the department) that the charge was
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meritorious. The university argued that the handbook did not require that the tenure
decision process be suspended, only that the plagiarism complaint be ultimately resolved
by the Research Integrity Committee.
The trial judge rejected the university’s motion for summary judgment, ruling
that, despite the lack of a handbook provision requiring that a tenure review be suspended
pending the resolution of a complaint against the tenure candidate, the handbook’s
specific language concerning the role and functioning of the Research Integrity
Committee supported Tacka’s argument that the university had breached its contract by
allowing the tenure review to go forward prior to the Committee’s determination.
The judge also denied the university’s summary judgment motion on Tacka’s
defamation claim, stating that Tacka had provided sufficient grounds for a jury to
determine that the department chair was biased against him and facilitated the publication
of the plagiarism claim beyond the department and beyond the university as well. The
case was later settled.
Should the institution have written policies concerning the procedure to be used if
a charge of personal or academic misconduct is lodged during the promotion review
process, then they should be carefully followed. If, however, the policies are silent on
this situation, the following suggestions may be helpful:
1. Review the nature of the complaint. Is it a complaint about one use of sexual
innuendo in a classroom setting, or it is a sexual assault? In other words, if the accused
individual were determined to be “guilty” of the alleged harassment, would its nature
weigh heavily in the tenure or promotion decision? Is this the first complaint against this
individual or the latest in a series of complaints?
2. Determine what office or committee has jurisdiction over the subject matter of the
complaint (eeo office, harassment compliance office, academic administrator, etc.).
3. Consult with the provost or similar official about the procedure for temporarily
suspending the promotion review process. If the faculty is unionized, consult with the
union leader to explain the situation and obtain a waiver of the contractual timelines, if
necessary.
4. Ensure that the complaint is forwarded to the office with jurisdiction over harassment
complaints with information explaining the need to resolve the complaint expeditiously.
5. Inform the promotion candidate that a complaint has been filed, and what his/her
rights and obligations are under the institution’s policy for addressing harassment claims.
6. Minimize the number of individuals who are told about the compliant while it is being
resolved. Departmental or tenure committee members could be told only that the provost
has requested that the process be suspended temporarily.
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7. If a finding is made that harassment occurred, the departmental faculty making the
promotion recommendation should be informed, and should be told what the
recommended sanction (if any) is. If there is a finding of no harassment, then that issue
should not be addressed in the promotion review discussion.
8. Departmental or tenure committee faculty should not be allowed to revisit the
harassment issue once the “official” determination has been made.
9. The accused faculty member should be kept informed of the progress of the
harassment complaint review process, but all institutional policies concerning privacy
and confidentiality should be observed.
Consensual Relationships
Although Title IX and Title VII prohibit sexual harassment of employees and
students in colleges and universities, they do not apply to consensual relationships as
these are not “unwanted or unwelcome”. Consequently, higher education institutions are
increasingly implementing policies to address consensual relations between faculty and
students. Motivations behind these policies often include the desire to protect the
integrity of a school’s mission, to avoid harm to third parties as a result the relations, to
avoid legal liability for sexual harassment, and to protect the school image. Neal
Hutchens, The Legal Effect of College and University Policies Prohibiting Romantic
Relationships between Students and Professors, 32 J.L. & Educ. 411, 429-38 (2003).
Authority to Create Consensual Relationship Policies
Although there are no cases ruling on the constitutionality of consensual
relationship policies in higher education, there is authority which support the authority of
college and universities to enact consensual relationship policies. Id. at 437. In
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (10th Cir. 1998), a law professor’s
dismissal was upheld for sexually harassing a student and violating provisions of the
faculty code of conduct by discussing grades with a student before engaging in a sexual
act. Sexual harassment, as “unlawful conduct,” was grounds for termination in the
faculty handbook for “moral turpitude.” The university investigating committee noted
that even though the professor did not seek to intimidate the student, there was an
inherent power difference between the student and teacher which resulted in the
termination. The court separated the ethics allegation from the sexual harassment one,
and indicated that schools enjoy discretion in promulgating standards of acceptable
faculty conduct to designate behavior that does not rise to the level of sexual harassment
under Title VII or Title IX as conduct warranting disciplinary action.
Another more recent academic speech case also suggests that higher educational
institutions enjoy the authority to create consensual relations policies. In Trejo v.
Shoben, 319 F.3d 878 (7th Cir. 2003), a university refused to renew an associate
professor’s contract after several female students complained about the professor’s
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behavior at an academic conference where he made offensive sexual comments and
thinly veiled sexual solicitations to students. An investigation revealed that the professor
had a history of behaving boorishly around numerous female graduate students since his
arrival on campus and recommended terminating the professor, although the decision did
not rest on a sexual harassment charge. The professor sued the university claiming his
free speech rights and due process rights were violated. The circuit court affirmed the
district court’s summary judgment in favor of the University. The court noted that
Trejo's conduct and statements at the conference, in conjunction with a pattern of
unprofessional conduct, poor judgment, and lack of trustworthiness, had the effect of
alienating professors and graduate students on the campus and at other institutions. Most
importantly, the court noted that “a university has an interest in fostering a collegial
educational environment while doing everything within its power to maintain its
reputation in the academic community both on campus and around the nation.” Though
this decision did not directly deal with consensual relationship policies, the court implied
that an educational institution has the authority to proscribe conduct not rising to the level
of sexual harassment for purposes of Title VII and Title IX, and a willingness to view
consensual relationship policies favorably. See Hutchens, 32 J.L. & Educ. at 433.
Although the authorities suggest that colleges and universities have the authority
to create consensual relationship polices, they are not required to do so. Giffin v. Case
Western Reserve Univ., 181 F.3d 100 (6th Cir. 1999). In Giffin, a student claimed she
was pressured into a “consensual sexual relationship” by her academic advisor and that
after the relationship ended, she suffered dire consequences in her academic career. The
student brought Title IX claim arguing that the university had failed to provide an
effective procedure for the resolution of complaints of sexual harassment and that Title
IX required the university to affirmatively address the risks involved in consensual sexual
relationships between students and faculty. The circuit court affirmed the district court’s
decision that Title IX does not require a university to have a consensual relationship
policy. See generally, Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980); Keller,
Consensual Amorous Relationships Between Faculty and Students: The Constitutional
Right to Privacy. 15 Journal of College and University Law 21 (1988); Connolly and
Marshall, Sexual Harassment of University or College Students by Faculty Members. 15
Journal of College and University Law 381 (1989); Elza, Liability and Penalties for
Sexual Harassment in Higher Education. 78 Education Law Reporter 1099 (1994).
Stokes and Vinik, Consensual Sexual Relations between Faculty and Students in Higher
Education. 96 West’s Education Law Reporter 899 (1995).
Types of Consensual Relationship Policies
There are basically three types main of these policies: absolute prohibitions,
limited bans on faculty-student supervisory relationships, and strong discouragement.
Euben, AAUP (2002). However, there are many differences woven into the policies
regarding who is covered, where accountability lies, and whether or not reporting of such
relationships is required. The AAUP recommends the following policy:
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Sexual relations between students and faculty members with whom they
also have an academic or evaluative relationship are fraught with potential
for exploitation. The respect and trust accorded a professor by a student,
as well as the power exercised by the professor in an academic or
evaluative role, make voluntary consent by the student suspect. . . . In their
relationships with students, members of the faculty are expected to be
aware of their professional responsibilities and avoid apparent or actual
conflict of interest, favoritism, or bias. When a sexual relationship exists,
effective steps should be taken to ensure unbiased evaluation or
supervision of the student. Id. citing AAUP, Policy Documents and
Reports 211 (2001).
The AAUP statement addresses the imbalance of power frequently present between
students and professors in consensual relationships, especially when a professor has
official authority over a student. Most college and university policies also echo this
concern. Hutchens, 32 J.L & Educ. at 414. Similarly, courts have distinguished between
relationships where a legitimate academic relationship exists and those where a
relationship exists outside of the academic realm. For example, in Waters v.
Metropolitan State University, 2002 U.S. App. LEXIS 22351 (8th Cir. 2002), the court a
professor was not liable under section 1983 for sexual harassment because the professor
was not acting in his official capacity as a teacher or advisor when he entered into a
relationship with a student. In this case, the student was no longer taking a class from the
professor, had not named the professor as an official advisor, and was not actively
pursing her studies at the University. Furthermore, the court noted that the student could
not rely on a power disparity which might arise in the future if she focused on her studies
again.
Examples of University and College Consensual Relationship Policies
Stanford University has a consensual relationship policy that strongly discourages
consensual relationships although does not prohibit them. The policy however requires
that the person in the position of greater authority must report the relationship to a
supervisor and may not remain in a supervisory or evaluative position.
There are special risks in any sexual or romantic relationship between individuals
in inherently unequal positions, and parties in such a relationship assume those
risks… Even when both parties have consented at the outset to a romantic
involvement, this past consent does not remove grounds for a charge based upon
subsequent unwelcome conduct. Where such a relationship exists, the person in
the position of greater authority or power will bear the primary burden of
accountability, and must ensure that he or she — and this is particularly important
for teachers — does not exercise any supervisory or evaluative function over the
other person in the relationship. Where such recusal is required, the recusing
party must also notify his or her supervisor, department chair or dean, so that such
chair, dean or supervisor can exercise his or her responsibility to evaluate the
adequacy of the alternative supervisory or evaluative arrangements to be put in
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place. To reiterate, the responsibility for recusal and notification rests with the
person in the position of greater authority or power. Failure to comply with these
recusal and notification requirements is a violation of this policy, and therefore
grounds for discipline.
... [A]s a general proposition, the University believes that a sexual or romantic
relationship between a teacher and a student, even where consensual and whether
or not the student would otherwise be subject to supervision or evaluation by the
teacher, is inconsistent with the proper role of the teacher, and should be avoided.
The University therefore very strongly discourages such relationships. Stanford
University, Sexual Harassment and Consensual Sexual or Romantic
Relationships, available at http://adminguide.stanford.edu/23_2.pdf
The University of Alabama takes a stricter approach and bans amorous and sexual
relationships where professional authority is exercised over one of the parties and notes
that disciplinary action against the instructor or supervisor is possible.
Every effort should be made to avoid having faculty members teach or supervise
members of their immediate family or anyone else with whom they have a
relationship that could interfere with impartiality. Such an undesirable situation
should occur only with approval of the departmental chairperson or the dean, and
only when alternative arrangements are unreasonable. Otherwise, amorous or
sexual relationships between instructors or supervisors and persons over whom
they have professional authority are prohibited and may result in disciplinary
action against the instructor or supervisor. The University of Alabama Sexual
Harassment Policy, available at http://socialwork.ua.edu/msw/harassment.html
The consensual relations policy at Syracuse University has different standards for
undergraduate and graduate students. The university prohibits employees from pursuing
sexual relationships with undergraduate students they teach or supervise, but only
strongly discourages such relationships with graduate students.
Sexual relationships…always pose inherent risks that they will result in sexual
harassment when they occur between any teacher, supervisor, or officer of the
University and any person for whom he or she has a professional responsibility…
These relationships are fundamentally asymmetric… Administrators, supervisors,
faculty members and graduate assistants of the University thus need to hold
themselves to high professional standard and avoid sexual relationships with the
students and subordinates with whom they work, recognizing that such
relationships pose a professional conflict of interest that may make it difficult, if
not impossible, to carry out their role as educators or supervisors.
Professionalism within the University demands that those with authority not
abuse, nor seem to abuse, the power with which they are entrusted. This policy
prohibits individuals employed by Syracuse University from pursuing sexual
relationships with undergraduate students they teach or supervise. This policy also
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strongly discourages sexual relationships with graduate students and any
subordinate whose work the individual supervises. If such a relationship does
develop, the teacher or supervisor must take whatever steps are needed to avoid a
conflict of interest. This requires reporting the relationship to an appropriate
supervisor, who will then arrange for other forms of evaluation or monitoring. In
the context of a complaint, there will be no presumption that the relationship was
welcome to the graduate student or subordinate. Syracuse University, Sexual
Harassment Prevention Policy and Procedures, available at
http://sumweb.syr.edu/ir/apm/Vphrgr/humres/appsex.html#conrel
Unlike Stanford’s consensual relationship policy which places greater
accountability on the party with supervisory authority, the University of Nevada, Las
Vegas, has a consensual relationship policy that can potentially subject students to
disciplinary action.
The University of Nevada, Las Vegas prohibits romantic or sexual
relationships between members of the university community when one of the
individuals involved has direct professional influence or direct authority over the
other. In that circumstance, both the university and the person in the position of
influence are vulnerable to charges of sexual harassment from the person in the
position of lesser power and/or by third parties…
When a romantic or sexual relationship exists, both parties involved may be
subject to disciplinary action. Both parties are equally responsible for reporting
the existence of the relationship to the appropriate supervisor at the beginning of
the relationship. A self-report will be kept confidential by the supervisor unless
university policy requires him/her to divulge it. Once the university
administration learns of a romantic or sexual relationship, whether through selfreporting or otherwise, it will take immediate steps to eliminate the power or
authority of the one individual over the other.
This may be accomplished by reassigning duties or responsibilities or
requiring withdrawal from a committee. If the individuals involved fail to comply
with this policy, or if the relationship is not self-reported, the university may
impose one of more of the sanctions available through its disciplinary
procedures… University of Nevada, Las Vegas, Consensual Relations Policy,
available at http://www.unlv.edu/Finance_Admin/Diversity/
Sexual harassment and Consensual Relationship Policies
Under Title IX, an educational institution cannot be held liable for sexual
harassment of a student by an employee unless an official who has authority to institute
corrective measures on the institution’s behalf has actual notice of the sexual harassment
and is deliberately indifferent to the misconduct. Gesber v. Lago Vista Indep. School
Dist., 524 U.S. 274 (1998). However, awareness of a consensual sexual relationship does
not give rise to the kind of actual notice required for Title IX sexual harassment liability.
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Liu v. Striuli, 36 F.Supp.2d 452 (D. R.I. 1999). In Liu, a reprimand was placed in a
professor’s file for engaging in a consensual relationship with a student against school
policy. The court determined that knowledge of a consensual relationship is not enough
to put a college on notice of sexual harassment without actual notice to an appropriate
official. The court noted that the duty to report the relationship under the school’s
consensual relationship policy was not the same as having the authority to take corrective
action since the report could not have stopped the harassment. The officials who were
aware of the relationship, the director of financial aid and a director in another
department, did not have actual notice of the alleged sexual harassment because they
were only aware that a consensual relationship existed, and they lacked the type of
authority required by Gebser.
Considerations

Be aware that a broad policy could implicate privacy rights or associational rights
or individuals or groups and might be challenged on those grounds.

Be knowledgeable about the policy, who it covers, and what procedures are
involved, and make sure that others are trained or aware of the policy as well.

Although a consensual relationship policy can be beneficial for dealing with
behavior that doesn’t rise to the level of sexual harassment, the best way to avoid
liability is through a comprehensive sexual harassment policy.
Investigations in General
Institutional Policy
A university should have a strong sexual harassment policy that sets forth specific
procedures to be followed when a sexual harassment claim is alleged so that the
university can quickly and efficiently address the situation. The sexual harassment policy
should be followed closely throughout the investigation. This may help the educational
institution avoid liability and ensure that the investigation is conducted properly. In Fox
v. Parker, 98 S.W.3d 713 (Tex. App. 2003), a professor was terminated after an
investigation that reveled the professor, while under the influence of alcohol, initiated
inappropriate and uninvited physical sexual contact with female students and also made
crude sexual comments to them on numerous occasions. The professor sued claiming
that the investigation and termination hearing had not been conducted according to
procedures contained in the university’s personnel policies and that the university had
defamed him by by allowing information in his personal file out to the public. The
appellate court reversed the judgment against the university finding that the employment
contract was not ambiguous and the evidence was insufficient for a jury to find that the
university did not follow its sexual harassment procedures and that the information about
the professor made public was inappropriate. The professor’s contract was extended
annually by the president which stated that acceptance of the letter indicated acceptance
of the applicable provisions of the university personnel policy manual, which could
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change from time to time. The court noted that the university had followed these
procedures and that that the university was not required to use any particular alternative
investigation procedures because the professor had no entitlement to them as he was not
the victim of the sexual harassment. In addition, the University policy specifically
provided for disclosure to protect its interests in an employment dispute and the
university had no way of obtaining witness participation without disclosing to them what
was occurring in termination process.
In general, it is a good idea to obtain copies of any written acknowledgment that
the person complaining or the person accused has read and understood the educational
institution’s policy. This will reduce conflicts regarding notice and policy changes.
Finally, sexual harassment procedures should protect the rights of both the complainant
and the accused. See AAUP, Due Process in Sexual Harassment Complaints.
www.aaup.org/statements/Redbook/rbsexha.htm.
Duty to Investigate
The EEOC Guidelines set for that an employer has a duty to investigate when “an
employer receives a complaint or otherwise learns of alleged sexual harassment in the
workplace.” EEOC Policy Guidance 405:6700. In addition, once the employer has taken
remedial action, the employer still has a duty to “make follow-up inquiries to ensure that
harassment has not resumed and the victim has not suffered retaliation.” EEOC Policy
Guidance 405:6700. Another important reason that an institution must thoroughly
investigate a sexual harassment allegation is that an affirmative defense to sexual
harassment requires that the employer reasonably tried to correct any sexually harassing
behavior and the employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer. Burlington Insudstries v. Ellerth, 524
U.S. 742 (1998) and Faragher v.City of Boca Raton, 524 U.S. 775 (1998). See also
Mahoney, Investigating and Resolving EEO Complaints, NACUA. In order to correct
any sexually harassing behavior, the employer must investigate!
A proper investigation can help gather facts, guide employment decisions,
identify harassment, build employee confidence in the system, assist the employer in
taking appropriate action, and avoid liability. Even if no actual complaint is made, an
employer must investigate if the conduct involved is so pervasive that the employer
would have constructive knowledge of the sexual harassment. Mahoney, Investigating
and Resolving EEO Complaints. Furthermore, educational institutions cannot ignore
anonymous complaints and must follow up on allegations even if the identity of the
complainant is not known. Euben, AAUP (2002). A college or university’s
responsibility to investigate and address an anonymous complaint cannot be greater than
its ability to respond. Id. For example, “if a student, who was the only student harassed,
insists that his or her name not be revealed, and the alleged harasser could not respond to
the charges of sexual harassment without that information, in evaluating the school’s
response, OCR would not expect disciplinary action against an alleged harasser.”
Revised Office of Civil Rights Guidance on Title IX at 16.
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Interim Corrective Action
Consider interim corrective action while an investigation is pending such as a
temporary suspension, temporary transfer, or a nondisciplinary leave of absence to avoid
the possibility of intimidation of witnesses, alteration of physical evidence and continued
misconduct.
Confidentiality
Sexual harassment cases “are particularly sensitive and demand special attention
to issues of confidentiality. Dissemination of information relating to the case should be
limited, in order that the privacy of all individuals involved is safeguarded as much as
possible.” AAUP, Policies and Procedures. Faculty and administrators should always
make clear that they will attempt to honor requests for confidentiality, but cannot
guarantee it. Euben, AAUP (2002). College officials should insure that its policies place
employee’s on notice that they do not have an expectation of privacy in e-mails, voice
mails, lockers offices etc. and that the appropriate officials have access to such items.
Janet E. Lanyon, Strategies: Dealing with the Campus Sexual Offender, NACUA (2002).
Prior to a search of any of these things, the institution should be sure that it can articulate
a specific reason why evidence of the alleged sexual harassment is likely to be found. Id.
Choose an appropriate investigator
A good investigator will know how to:

Ask questions in order to obtain information and cooperation from people who
would not otherwise want to communicate.

Distinguish between relevant and irrelevant information.

Convey a concerned but neutral and fair approach.

Provide adequate documentation.
A good investigator is essential to the investigation process. Otherwise, employees may
avoid reporting inappropriate conduct or an employer could base an important
employment decision on inaccurate or incomplete information. Mahoney, Investigating
and Resolving EEO Complaints.
The Investigation
A proper investigation will be well documented, assess witness credibility and
strength of evidence, and provide a rational and defensible conclusion. There are four
components to a good investigation: (1) through interviews of the complainant, (2) an
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analysis of the relevant evidence, (3) an assessment of the credibility of the witnesses,
and (4) strength of the evidence.
The investigation will usually start with an initial interview of the complainant.
Be sure to explain the purpose of the meeting, ground rules, the investigation process,
what to expect, possible resolutions to the problem, what the complainant needs to do,
and confidentiality. The investigator should be well prepared for all interviews. As the
investigation proceeds, consider whether evidence needs to be secured, if more
information needs to be gathered or more witnesses interviewed, whether to put an
employee on leave while the investigation is pending, informing all parties about issues
regarding retaliation, protecting the university against liability, and assessing credibility
of the witnesses and evidence. Document everything that has been done throughout the
investigation.
Have an investigative report prepared that includes a chronology of events, all
persons contacted, all documents reviewed, including references to relevant university
guidelines and policies, and attach any documents, statements or any other evidence.
Reach a conclusion that is based on the investigative report and defensible. Take prompt
corrective action. If no action is taken because the investigative report is inconclusive,
assure the complainant that although no fact finding could be made, and that the
institution intends to protect all employees against unlawful harassment and retaliation.
Also advise the wrongdoer that although the truth of the claim has not been determined,
all employees are expected to comply with university policy against sexual harassment
and retaliation.
Inform the parties of the results of the investigation. The alleged wrongdoer
should we treated with dignity. If the investigation indicates that a violation may have
occurred, give the person an opportunity to respond to those findings. Re-affirm the
educational institution’s anti-harassment policies and obtain acknowledgment. Put any
discipline in written form and reiterate the institution’s policy against retaliation. Also
inform the complainant about the results of the investigation. Consider giving the
complainant an opportunity to respond.
Other Considerations



Maintain confidentiality as much as possible. Discuss allegations only with those
people who are necessary. Make sure that all parties know not to discuss the
matter with anyone else and inform them of the risks of defamation claims.
Keep investigative files separate from personnel files and limit access to only
those people who are required to have access.
Attempt to protect the reputation of both the alleged sexual harasser and the
complainant.
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Selected References
Chang, Ailsa W. NOTE: “Resuscitating the Constitutional ‘Theory’ of
Academic Freedom: A Search for a Standard beyond Pickering and Connick.” 53
Stanford L. Rev. 915 (2001).
Cole, Elsa Kircher, ed. Sexual Harassment on Campus: A Legal Compendium,
4th ed. NACUA, 2002.
Davies, Julie. “Assessing Institutional Responsibility for Sexual Harassment in
Education.” 77 Tulane L. Rev. 387 (2002).
Gould, Jon. “Title IX in the Classroom: Academic Freedom and the Power to
Harass.” 6 Duke J. Gender L. & Policy 61 (1999).
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Hypothetical
Sally is a master’s student enrolled in your MFA program in violin performance
studies. She also has an undergraduate degree from your institution. Sally has been
studying violin with Mark Mapp since first enrolling at the institution. She has come to
the harassment advisory office with the following story:
I have been studying violin with Professor Mapp—Mark—for five years.
Many of the lessons are at his home because he has three young children. I have
babysat for Mark and Marilyn, his wife, for several years, and I don’t mind doing
it for free because Mark gives me extra violin lessons. Sometimes they ask me to
stay for dinner, and they have thrown a birthday dinner—with wine—for me for
the last several years. Mark keeps telling me how attractive I am, and we snuggle
on the couch after his wife goes to bed. Mark says that Marilyn doesn’t mind
because she’s too tired at the end of the day to be affectionate. Actually, we’ve
had sex several times after his wife has gone to bed, or on a couple of occasions
when she was out and I was at the house having a lesson. Anyway, Mark has
become more insistent that I sleep with him more frequently, and says it’s ok
because Marilyn would understand. I’ve decided that I would rather date
someone closer to my own age, but Mark says that he’ll never let me go. I’m
afraid that if I break things off my performance career will be ruined, since Mark
is the only violin teacher at the college and I can’t afford to make him angry. But
I’m tired of the pressure, tired of the free babysitting, and tired of him. I don’t
want to file a complaint, but I want you to know about this in case anything bad
happens to me—like a lower grade, or any difficulty I might have in getting
performance dates due to Mark’s recommendations.
Mark is being reviewed for tenure this semester. The departmental meeting to vote on
the recommendation for Mark’s tenure is scheduled for next week. The harassment
compliance officer has called you to tell you this, and has also informed you that she has
told Mark’s department chair about Sally’s allegations because the chair will need to be
involved in the investigation. What would you do?
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