Can One Law Prof Be “Superior” or “Subordinate” to the Other?

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Writer Ben Heineman asks in The Atlantic, “Sex Between Superiors and Subordinates: What Are the Rules?”  It depends, Heineman says (here) on “different approaches and different cultural traditions.”  Heineman describes three cases:

  • Boeing CEO Harry Stonecipher was forced to resign in 2005 ten days after the Board of Directors learned that he had a consensual affair with the head of the company’s Washington office. He had returned to the company after procurement scandals had led to the resignation of the prior CEO. But his sexual activities were deemed inconsistent with his push for higher standards of conduct and viewed as embarrassing to the company because of steamy emails. * * *
  • In the United States military, fraternization rules embodied in the Uniform of Military Justice flatly prohibit an officer from having sexual relationships with an enlisted member.
  • According to a story in The New York Times, the “IMF maintains a more permissive stance” towards superior-subordinate sex, which do not, per se, constitute harassment. But “the World Bank, by contrast, says such a relationship is ‘a de facto conflict of interest.’”

Read Heineman’s full article here.

How might similar “rules” apply to law professors, for example?  My anecdotal impression is that very, very few law schools have policies against faculty/faculty fraternization (an ill-fitting word, in my view).  Many schools, of course, have rules against professor/student fraternization.  But it is not unheard of for a law school (or other schools or departments of a university) to employ both members of a married couple.  The couple may even have met through their employment at that law school.

A robust theoretical objection to a faculty/faculty anti-fraternization rule would be that faculty members — or at least tenured and tenure-track faculty members — are deemed to be non-superiors and non-subordinates with respect to each other.  We’re not like CEOs, the military or staff members of an NGO.  Right?  Nevertheless, here are a few pairings that raise questions in my mind:

  • tenured professor/untenured professor
  • dean or associate dean/tenured or untenured professor
  • tenured or tenure-track professor/non-tenure-track professor

Nothing about these interactions are per se coercive but they strike me as potentially problematic.  As with private-sector and government-sector jobs, the lack of a clear policy

may lead to favoritism for the subordinate, may undermine other employees’ morale, may undermine the organization’s reputation for fairness…may embarrass the entity in public and may, in other ways, impair the effective, non-biased functioning of the organization.

These are the types of negative consequences that anti-fraternization policies are meant to address (source: here).  No doubt tenure is a special form of employment.  The right to continuous reappointment brings many freedoms, including a freedom from fear of retaliatory firing.  If a tenured professor feels pressured or even coerced into having sexual relations with another faculty member, complaining about it is very unlikely to result in tenure revocation for either party.  But intra-institutional faculty/faculty sexual relationships aren’t per se free from negative intrapersonal or intra-institutional consequences, either.

Of course, deans and associate deans don’t stay in office forever.  Those without tenure eventually earn it (or not).  Those with tenure usually keep it, but even those who have it may see fluctuation in the value of their institutional stock.

My sense is that the “different approaches and different cultural traditions” of the legal academy lead it to be resistant to the adoption of faculty/faculty anti-fraternization rules.

-Bridget Crawford

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