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A year after the University of Wisconsin System Board of Regents adopted a policy prohibiting professors from entering into romantic or sexual relationships with their students, such relationships are still permitted at UW-Madison.

There has been much progress on developing campus procedures to implement the System policy, said spokeswoman Meredith McGlone.

“There has been no hold-up; we’ve been working diligently on this,” she said.

McGlone said a draft of a campus “consensual relationship” policy is nearly complete and will be presented this spring to campus shared governance groups that represent faculty, academic staff and students for “feedback and endorsement.”

UW-Madison will adopt its consensual relationship policy at a time of heightened awareness of sexual harassment by powerful men in entertainment, media, politics and academia.

UW System President Ray Cross named a task force in 2014 to recommend changes in sexual violence and harassment policies, focused on the risk of abuse growing out of a power differential — an imbalance in power and status — between people involved in consensual romantic or sexual relationships. Nearly all members of the 20-plus member task force were administrators from System offices and several campuses.

Task force members remarked in their report that romantic and sexual relationships with a power differential create a setting where conflicts of interest, violence, sexual harassment and hostile environments may occur.

A revised policy approved by the Board of Regents on Dec. 8, 2016, said that for instructors, commencing consensual romantic or sexual relationships with students under their instruction, or whom they reasonably believe may come under their instruction in the future, is barred.

For instructor-student romantic or sexual relationships already underway when the student comes under the instructor’s guidance, the UW System requires that employees report their relationships to a supervisor and cooperate in actions to eliminate conflicts of interest and mitigate adverse effects of the relationship.

Campus chancellors or their designees were to be responsible for implementing institutional procedures consistent with the policy.

A “statement” on consensual relationships adopted by the UW-Madison Faculty Senate in 2011 does not bar relationships between professors and their students. And it requires professors to report such relationships to their supervisors only when a conflict of interest exists, or may exist.

The supervisor is responsible for making arrangements to eliminate or mitigate the conflict.

University policies and ethical principles already prohibit employees from evaluating work or academic performance of those with whom they are involved in romantic or sexual relationships, the UW-Madison guidelines state.

But relationships with power differentials, even seemingly consensual ones, open up the university to liability if they lead to legal action on claims of sexual harassment, the guidelines state.

“There are limited after the fact defenses against charges of sexual harassment,” the statement cautions, adding that when such relationships are outside an individual’s scope of an employment, employees would not be covered by the state’s liability protection.

An advisory group to UW-Madison provost Sarah Mangelsdorf developed a draft document revising the campus policy to meet the requirements of the UW System policy scheduled to be presented to shared governance groups this spring.

Members of the University Committee, the executive committee of the Faculty Senate, referred questions about progress on the policy revision to McGlone.

Many colleges and universities have revised their policies over the past decade or so to restrict relationships between parties where there is a power differential, say representatives of two organizations serving higher education institutions who disagree on the desirability for such policies.

Andy Brantley, CEO of the College and University Professional Association for Human Resources, said that faculty members “should never, ever engage in romantic relationships with students, even students not in their classes.”

“Whether a faculty member believes the power relationship is there or not, it is most definitely there, in every way, shape and form,” Brantley said.

He said that most colleges and universities he works with by now have realized they need to clarify policies regarding consensual relationships and have adopted policies that forbid them.

Brantley admitted that shared governance practices call for such policies to reflect the views of faculty.

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“It’s important that issues of this magnitude be weighed by the entire organization. It’s not just an issue of how the organization is governed, but a risk management issue for the campus as a whole," he said.

The potential liability of the institution in sexual harassment cases cannot be overlooked, he said.

The involvement of faculty and other shared governance groups in developing a policy governing their relationships is key, said Risa Lieberwitz, general counsel for the American Association of University Professors and professor of labor and employment law at Cornell University. The AAUP is a national nonprofit membership group of faculty and other academics.

Students, staff and faculty should have a voice in considering such things as the need to avoid abuse of power, concern over whether consent given in a relationship with a power differential is real consent, and how to protect students from abuse of power, Lieberwitz said.

A 1995 AAUP statement on consensual relations focused on the imbalance in power between professors and students.

“The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect,” the statement read in part. And it places with the faculty member the responsibility for navigating the risks and avoiding apparent or actual conflict of interest, favoritism or bias.

Yet it is important to recognize that there may be truly consensual relationships between faculty and students, Lieberwitz said. Which means there is a need for the people who would be affected by such restrictive policies “to discuss and debate how to respect the decision by adults to enter into relationships with each other and to respect the privacy people should have in relationships.”

Most of the cases of sexual harassment grabbing recent headlines have involved abusive treatment of women who were less powerful than the men who targeted them. But women, in positions of public power or not, also have a stake in maintaining agency over whom they enter into relationships with, said Lieberwitz, who has served on the AAUP Committee on Women in the Academic Profession that generated the 1995 statement on consensual relations.

“For many years, feminists have fought for the ability of women to make their own choices,” she said.

A prohibitive policy like that offered by the UW Board of Regents and supported by the human resources organizations removes choice from the equation, she said.

The AAUP policy touches also on the fact that entering into a sexual relationship with a student makes faculty and the institution vulnerable to allegations of sexual harassment.

But a focus only on risk management reflects a “corporate” model of university administration that shared governance advocates regret is spreading, she said. “A top-down policy may reflect the way in which faculty governance is not respected.”

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