Sex as a Pedagogical Failure.

• Author: Srinivasan, Amia

FEATURE CONTENTS INTRODUCTION 1102 I. THE "POWER DIFFERENTIAL, NO CONSENT" RATIONALE 1104 II. TEACHING AND TRANSFERENCE 1120 III. SOCRATES AND THE DUTIES OF PEDAGOGY 1127 IV. SEX AS A PATRIARCHAL FAILURE 1131 V. CONSENSUAL SEX AS SEX DISCRIMINATION 1138 CONCLUSION 1144 INTRODUCTION

In 2010, Yale University announced a change in its policy on consensual sexual relationships between faculty members and undergraduate students. (1) Previously, Yale had prohibited faculty members from having relationships with students, undergraduate or graduate, with whom they had or were likely to have a supervisory relationship. (2) That policy was devised in 1997, after an apparently consensual affair between a seventeen-year-old freshman and her mathematics professor left the student feeling, in her words, "betrayed" and "used." (3) The new 2010 policy forbade faculty members from sexual relations with any current Yale undergraduate whatsoever. (The rules for faculty-graduate student relationships remained unchanged. (4)) Several other universities swiftly followed Yale's example, including Harvard, (5) the University of Pennsylvania, (6) Northwestern, (7) the University of Connecticut, (8) Stanford, (9) MIT, (10) Columbia, (11) and Duke. (12) The architect of Yale's 2010 policy, Deputy Provost Charles Long, had been advocating for the stronger blanket prohibition on faculty-undergraduate relationships since 1983 but had been thwarted by both civil libertarians, (13) who thought such relationships were a private matter, and feminists, who worried that a prohibition would infantilize women students. (14) Given the decades of resistance that Long's campaign faced, it is interesting that, when the policy did finally change, it prompted little outcry and, indeed, much apparent approval from other universities. Behind this reversal is a story of important shifts: within antidiscrimination law, within campus regulatory structures, and within feminist thinking about the relationship of sex to power.

Part of my task here is to tell that story, so that we may understand how the regulatory treatment of consensual faculty-student sex came to have its current shape. I am particularly interested in the standard rationale that now undergirds prohibitions on faculty-student sex--a rationale borrowed from employment sexual-harassment law--according to which power differentials between professors and students preclude the possibility of genuine consent. Such a rationale is problematic for the reason that feminists in the 1980s first said: it strips (overwhelmingly) women students of their agency, inverting the rapist's logic of "no means yes" into the protectionist logic of "yes means no." But it is also problematic in that it fails to register what is truly ethically troubling about consensual faculty-student sex. A professor's having sex with his student constitutes a pedagogical failure: that is, a failure to satisfy the duties that arise from the teacher-student relationship. Implicit in that relationship is the promise that the teacher will work to equalize the asymmetry in knowledge between him and his student. When the teacher takes the student's longing for epistemic power as an occasion for his own gratification, allowing himself to be--or, worse, making himself--the object of her desire, he has failed her as a teacher.

Thus, what is fundamentally at issue in consensual professor-student sex is not whether the student's consent is genuine but whether sex with one's student is compatible with being a good teacher. What is more, much professor-student sex, in its dominant mode--that is, between male professor and female student--constitutes not only a pedagogical failure but also a patriarchal failure. (15) Such relationships often feed on, and reinforce, women's second-class standing in higher education. As such, these relationships plausibly thwart the legal right of women students under Title IX to exist in the university on equal terms with their male counterparts. While genuinely consensual faculty-student relationships do not constitute sexual harassment, they plausibly can and do often constitute sex discrimination. Whether or not we should ultimately favor such an interpretation of Title IX--whether or not, that is, we think that it would render campuses ultimately more equal, not just for women but also for nonwhite, queer, immigrant, working-class, and precariously employed people--it is clear that university teachers need to attend more carefully to the sexual ethics of their own practice. The demand here is not only prudential--a matter of increased legal liability or administrative pressure--but also pedagogical: a question of our ethical duties as teachers.

1. THE "POWER DIFFERENTIAL, NO CONSENT" RATIONALE

   The existence of university sexual-harassment policies and procedures is one of the great legacies of feminist activism and jurisprudence of the late 1970s and 1980s. While employment discrimination "on the basis of sex" had been prohibited since the Civil Rights Act of 1964, women in the 1960s and 1970s struggled to invoke the law in their battle against what feminists would eventually come to call sexual harassment in the workplace. (16) In the early days of litigating such claims, judges often decided that workplace sexual harassment was a merely "personal" matter, (17) or a natural and inevitable feature of working life. (18) The somewhat more sophisticated among them insisted that sexual harassment did not constitute discrimination "on the basis of sex": either because it was a harm that could (in principle, if rarely in practice) be equally perpetrated against male subordinates (19) or because it was a harm that only affected some women in a workplace--those who did not want to concede to their boss's advances. (20)

   The feminists of this era, many of them working out of Cornell and Yale, fought to make the courts see what is to many of us now obvious: that far from a merely personal matter, or a matter orthogonal to gender, sexual harassment is central to women's political subordination. In 1974, Paulette Barnes, a black woman who had been recently fired from her job as an administrative assistant at the Environmental Protection Agency, brought suit against her former employer for sex discrimination. Her boss, Douglas Costle, had fired Barnes after she refused his persistent sexual overtures. Barnes's case was initially dismissed by the district court, (21) but proceeded to the D.C. Circuit for review. (22) Catharine MacKinnon, then a law student at Yale, slipped a working paper that would eventually become her groundbreaking Sexual Harassment of Working Women to one of the law clerks involved with Barnes v. Costle. (23) The court ruled that sexual harassment constituted sex discrimination and was thus a violation of Title VII of the Civil Rights Act. (24)

   In Barnes, the court identified the act of sex discrimination in the (presumed) heterosexual orientation of the harasser: "retention of [the plaintiff's] job was conditioned upon submission to sexual relations[,] an exaction which the supervisor would not have sought from any male." (25) Costle's discriminatory act lay in his differential desire: he subjected only women to harassment. As the court itself noted, (26) had Costle been bisexual, targeting both women and men for sexual harassment, his actions would not have constituted sex discrimination. This reasoning established Barnes's sex as a necessary condition of her harassment. But what about the claim, invoked in earlier cases, (27) that Barnes's sex was not sufficient to explain why she had been harassed--that her harassment was a matter of sex plus her refusal to concede to her boss's advances? Here, the court said that "it is enough that gender is a factor contributing to the discrimination in a substantial way," citing the 1964 defeat on the House floor of a proposed amendment to Title VII that would have restricted its application to cases of discrimination "solely" on the basis of sex. (28)

   This understanding of sex discrimination as sex-differential treatment remains the one conventionally appealed to in the law. (29) But, as MacKinnon noted in Sexual Harassment of Working Women, this approach has at least two shortcomings. First, it requires showing that "a person of the opposite sex in the same position is not treated the same." (30) This poses a problem when women are discriminated against in the absence of a class of similarly situated men who are treated differently: for example, when an employer's sickness- and accident-benefits policy expressly excludes pregnancy. In General Electric Co. v. Gilbert, the Supreme Court found that such a policy did not discriminate on the basis of sex because it could not be shown that the employer treated pregnant women differently than a comparable group of men: pregnant men. (31) Similarly, in Rafford v. Randle Eastern Ambulance Service, Inc., a court found that it was not sex discrimination to fire men with moustaches and beards--because there were no mustachioed or bearded women who were being treated differently. (32) Second, the differential-treatment approach to sex discrimination gives us a counterintuitive verdict in cases in which men and women alike are sexually harassed by a given superior. (33) That men are also being sexually harassed presumably does not make such actions any less discriminatory against women, and vice versa, yet the differential-treatment approach suggests that it does. As an early bit of commentary put it: "only the discriminatory application is being attacked, not the evil conduct itself." (34)

   According to MacKinnon's alternative inequality approach to sex discrimination, "[a] rule or practice is discriminatory... if it participates in the systematic social deprivation of one sex because of sex." (35) What matters is not whether women and men are being treated differently, but rather whether women are being...