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Higher Education Struggles With Making Clear Policies on Sexual Misconduct

Sex Crime Attorneys Serving Fremont, Cupertino, and Los Gatos

Universities throughout the nation are re-evaluating their codes of conduct policies regarding sexual relationships between faculty and students. These types of relationships can be fraught with challenges but they are not necessarily illegal or unethical. However, a spotlight has been trained on universities in recent years in response to campus sexual abuse allegations and the threat of abuse of power in teacher/student relationships. Though the Department of Education continues to maintain concern about such issues at all schools, the Department has been investigating 55 colleges and universities across the nation. Harvard is one of the schools in the spotlight.

Perhaps as a result of this investigation, Harvard University's Faculty of Arts and Sciences (FAS) is now banning sexual relationships between faculty and undergraduate students completely. Harvard joins Arizona State University in re-writing their policies. According to a recent report by NPR News, "Harvard Bans Sexual Relationships Between Professors And Students," "many U.S. colleges have lacked a formal policy on professors dating students. That has begun to change in recent years, with schools either barring professors from having sex with students they oversee or requiring them to recuse themselves from such situations." In the past, if a professor engaged in a consensual relationship with a student they were evaluating or mentoring, they had to report the relationship and remove themselves from a supervisory role involving that student. Harvard's new policy now makes the relationship itself grounds for reprisal. Harvard is not alone in adopting a new policy.

Faculty at ASU, and many other schools in the nation, are not forbidden from dating students but they are not allowed to date any student whom they grade, supervise or have any kind of authority over. The school is being sued by a former graduate student who alleges she was mistreated by one of her professors after she ended a relationship with him. Also, an Arizona news organization reports that the student's allegations "are among a series involving faculty-student relationships in recent years at ASU, including two recent alleged incidents at Barrett, the Honors College" a "college-within-a-college" at ASU. As a result, AZ Central reports, efforts are being made to include stronger and more transparent language that bans faculty from dating anyone that they supervise or whom they might supervise. The new ban must still be reviewed by attorneys for the university but it is likely be approved.

While sexual harassment or misconduct on a college campus between faculty and students is not exactly the same as such harassment or misconduct at a workplace that involves a supervisor and a subordinate, many of the same pitfalls exist. Universities from Massachusetts to Arizona are taking action now. After the Department of Education concludes their investigation, the government may take legislative action that may impact higher education at public and private colleges throughout the nation in unprecedented ways. Regardless of how aggressive school policies become, when the time for enforcing those policies becomes necessary, complex litigation may develop in relation to wrongful termination, harassment, retaliation and other complex civil law issues.

Last year, Harvard was among dozens of schools the Department of Education said it's investigating for how they handle sexual abuse allegations. A Harvard representative says that the new policy was created after a review by a Faculty of Arts and Sciences committee found that "the existing language on relationships of unequal status did not explicitly reflect the faculty's expectations of what constituted an appropriate relationship between undergraduate students and faculty members."

In the past, many U.S. colleges have lacked a formal policy on professors dating students. That has begun to change in recent years, with schools either barring professors from having sex with students they oversee or requiring them to recuse themselves from such situations.?

Last month, Arizona State University joined schools that have expanded the dating prohibition to include any student whom the professors have a chance of overseeing. Harvard's ban goes further than that approach, putting the university in line with Yale and others that have adopted similarly wide bans.

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