Getting to the Nexus of the Matter: A Sliding Scale Approach to Faculty-Student Consensual Relationship Policies in Higher Education
31 Pages Posted: 6 Dec 2004
A prominent law dean is forced to resign over an alleged sexual affair with a student; a writing instructor details in a national magazine his steamy affair with his married student; a student stalks her male professor after he ends their sexual relationship and the criminal stalking charges against her are only dropped when she agrees to voluntarily leave the country. Increasingly, such tantalizing scandals are making their way into the nation's daily consciousness. Yet, behind all of these shocking tales of decadence lays the very real dilemma as to how college and university administrators should regulate consensual relationships between faculty members and students.
Although numerous scholars have posited various approaches to these seemingly intractable matters of the heart, none of these commentators have adequately balanced the bewildering array of overlapping faculty, student, university, and third-party interests. Furthermore, current faculty-student consensual relationship policies are either underinclusive in not providing a sufficient institutional response to troubling faculty conduct or overinclusive in ignoring the very real privacy and associational interests that individuals have in forming private intimate associations away from the workplace.
As someone who teaches labor and employment law and education law, and who comes from a labor and employment law practice background, I approach the regulation of faculty-student consensual relationships from a distinctive viewpoint. Rather than focusing on highly indeterminate, and politically charged, concepts such as consent and power as most scholars and postsecondary institutions do, my approach examines the more easily discernible impact or effect that consensual relationships have on the college and university environment. The premise underlying this approach is that a college or university may only legitimately regulate the private affairs of its employees if such private conduct spills over into the academic arena and adversely affects the college or university by damaging the school's reputation, by interfering with a professor's ability to properly perform his or her job, or by causing other faculty members and students not to want to work with the offending professor.
While this approach to consensual relationships is new in the college and university context, the idea of regulating these relationships based upon their impact on the surrounding workplace environment is not. In fact, there already exists an extensive body of labor arbitration case law concerning the regulation of employee off-duty conduct. For over a half a century, labor arbitrators in the union context have applied the so-called nexus principle to determine whether an employer could properly discipline or discharge an employee for private conduct away from the workplace on the employee's own time. In such cases, arbitrators have consistently held that an employer has no business interfering with the private lives of its employees unless such conduct adversely affects an employer's business interests in some relevant manner.
By applying this nexus principle to the college and university environment, a number of guideposts emerge as to how postsecondary institutions should treat faculty-student consensual relationships. First, a blanket rule either permitting or prohibiting all consensual faculty-student relationships is not appropriate, as the facts of individual cases will determine whether the private sexual conduct of the faculty member has a detrimental impact on the college or university. Second, although a general rule would appear not to be possible, useful presumptions can nevertheless be established. Where the faculty member is involved in a consensual relationship with a student with whom he or she is supervising or evaluating, the presumption is that a private relationship in these circumstances is likely to adversely affect the college or university environment in some fashion, unless the faculty member can establish that the relationship in question in fact caused no detrimental impact to the college or university. On the other hand, where no such supervisory or evaluative relationship exists, the opposite presumption applies unless the college or university can establish that specific facts exist suggesting that such private conduct is directly interfering with the academic setting. In a nutshell, the nexus test supports a sliding scale approach to consensual relationships between a faculty member and a student.
Keywords: Consensual relationship policies, higher education, labor arbitration
JEL Classification: J58, J59, I21, J70
Suggested Citation: Suggested Citation