Systematic Prevention of a Serial Problem: Sexual Harassment and Bridging Core Concepts of Bakke in the #MeToo Era

Abstract

As part of this fortieth anniversary symposium on the Bakke v. Regents of the University of California decision at the core of modern U.S. constitutional jurisprudence around race-conscious affirmative action in higher education, we delve into an adjacent and challenging area of civil rights and equality on college campuses today. We apply a trauma-informed and comprehensive prevention approach in the context of Title IX and faculty-on-student sexual harassment. Even though Title IX and related laws focus on discrimination based on gender, their trauma-informed methods and comprehensive prevention goals can be extended to other civil rights contexts vital to a healthy campus climate, with the combined effect of addressing multiple challenges faced by diverse students, including hostile environments based on race, gender, sexual orientation, disability, and socioeconomic status. Addressing the effects of hostile educational environments, including trauma, is necessary for achieving Bakke’s deeper meaning of fostering the educational benefits of diversity on higher education campuses.

Having laid the empirical groundwork for this article in our companion Utah Law Review (2018) study analyzing fact patterns from over three hundred college faculty sexual harassment cases, in this article we turn our focus to organizational climate, which was flagged in a recent National Academies committee report on sexual harassment of women in the sciences as “by far, the greatest predictor of the occurrence of sexual harassment.” Too often, colleges and universities have historically exhibited reluctance to appropriately sanction faculty for sexual harassment, with the foreseeable consequence of creating an organizational climate that signals tolerance of sexual harassment, erodes trust in campus leadership, results in poor training for graduate students in ethical/professional norms and creates for victims of the harassment a “chilly” climate conducive to underreporting and retaliation. We show, through a review of cases and synthesis of the scholarly literature, that the absence of serious sanctions for faculty sexual harassment is associated with a syndrome that renders comprehensive prevention impossible.

In this article we also analyze vexing challenges with confidential separation agreements and “pass the harasser” scenarios whereby a faculty member evades accountability for sexual harassment on one campus by obtaining a faculty appointment at a second institution where the cycle of sexual harassment starts again. Pass the harasser cases raise difficult “collective action” problems in academia. In short, a confidential separation agreement is often a quick and efficient way for a college to protect its students and junior faculty from a sexual harasser, but such a choice places students at other college campuses at increased risk of being sexually harassed in the future. We recommend that institutional decision-making in this area will be aided by informed, comprehensive prevention-oriented practices, including greater engagement with complainants/victims.

We detail due process requirements for accused faculty, in terms of both legal rulings and academic norms. Our comprehensive prevention approach directs our attention to interim measures such as placing a faculty member on interim suspension while a Title IX investigation and/or faculty misconduct hearing are pending. In summary, the comprehensive prevention of sexual harassment required by Title IX (and related laws and regulations connected to the Clery Act and VAWA) can build a better future for the next generation of diverse academic scholars, thereby contributing to fulfillment of the ideals embodied in Bakke.

Keywords: sexual harassment, Title IX, higher education, sanction, termination, discipline, due process, prevention, organizational climate, #MeToo, academia, faculty, student, trauma, sexual misconduct, Bakke, VAWA, civil rights