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Comments on the Section “Reasons for Policy”

Last Updated: March 9, 2018 at 3:09 pm

Comments

  1. Re: “Professional and institutional power differentials are part of academic life, but it is unacceptable when they become instruments of coercion….”: this suggests that academic power differentials are necessary evils, which is certainly not the case. Academic power has an important purpose; this passage will be stronger if it can remind the community of the purpose and responsibility of this power. For instance, perhaps something like, “Professional and institutional power differentials are part of academic life. Faculty, staff, and researchers at Cornell are empowered to fulfill the University’s scholarly and educational missions. It is unacceptable that any individual so empowered by or within the university should use this power over or against a student.”

  2. Re: “Even where fully consensual, romantic or sexual relationships between students and faculty ….” This misstates the issue. Power differentials do not permit genuinely consensual romantic or sexual relationships. The power differential affects all aspects of interaction, so there is no way to get to a “level playing field,” and thus no way to achieve what is genuinely consensual.

    The “Consensual Sexual and Romantic Relationship Policy” of Stanford University includes the point that “these relationships [across power differentials] are often less consensual than the individual whose position confers power or authority believes.” The issue of consent is crucial, and this policy must address it, I feel, if it is to be a credible and effective.

    Right now, this draft of the policy seems a mixed message. It’s unequivocal that “all romantic or sexual relationships between faculty and undergraduate students are prohibited under this policy.” However, the reasons the policy offers for establishing this prohibition seem weak. There is little mention now of the potential affects on a student in such a relationship., nor of the professor’s responsibility to the student.

    This draft seems potentially even counter-productive to me: to argue against relationships between professors and students on the grounds that such relationships may damage a professor’s reputation, upset collegial interactions among other students, or damage Cornell’s reputation has the effect of minimizing the the potential harm to students who are involved in romantic/sexual relationships with professors.

    In “Regulating Sexual Relationships Between Faculty and Students” Margaret H. Mack, writes, “The point of consensual sex policies should be to prevent situations that do not amount to actionable sexual harassment from interfering with students’ education.”

    This policy will be most effective if, in addition to identifying rules, it can also serve to educate our community and provide support for those affected by these situations. (The article is from: Michigan Journal of Gender and Law, 1999. http://repository.law.umich.edu/mjgl/vol6/iss1/3 )

    Joanie Mackowski
    Associate Professor
    English / Creative Writing

    1. I would like to revise the end of my comment. Faculty can be said to use their power “over or against a student” in the course of teaching: it’s the power to evaluate a student’s work, etc. The problem is when this professional, educational power becomes leverage to achieve interpersonal, non-professional ends.

  3. Cornell faced a similarly difficult challenge when we drafted our University conflict of interest policy many years ago. We eventually began to realize that any enumerative policy (Charlie mentioned 17 categories of problematic romantic or sexual relationships during the Senate meeting) becomes a snarl: it can accidentally be overly broad in the sense of including things that aren’t really problematic, while seeming to bless things not included in the enumeration, which means it can omit large categories of behavior.

    We solved that by having a two-part policy. The policy portion is as broad and general as possible: the opposite of a specific, enumerative policy. The FAQ then collected all the specific cases people were very worried about and turned them into vignettes illustrating (in a non-comprehensive way) the application of the broad policy to those specific situations.

    This is a bit like saying that the US constitution recognizes a right of free speech, which over the years our court system has refined into case law: examples of how the right to free speech plays out in various circumstances, and also examples in which free speech doesn’t protect the speaker. I use this example because in some sense, we have a right to free decisions about our private lives, and a right to privacy, but as this policy committee has recognized, that right of privacy sometimes is trumped by the need to protect students and other less powerful individuals in situations where the power hierarchy might distort decision-making. So, we have a right, we have a wide range of situations where privacy should prevail, and then we have some specific situations where other considerations need to overrule the basic right.

    So how might that play out? Ms. Waymack asked for specifics yesterday. Here is what I specifically would urge.

    The crux of the policy should say something like this: “Cornell affirms the right of all members of society to enter freely into consensual relationships, and is respectful of privacy. However, some situations involve coercive, abusive, or otherwised biased behavior that is inimical to the norms of academic conduct and society. Cornell community members have an absolute right to a safe and supportive work environment, free of harassment and other abusive conduct, and free of any form of coercion.

    Accordingly, while Cornell will not intrude into permissible private conduct, the University requires the full community to abstain from coersive, abusive or biased conduct, and to report situations that might violate this basic principle. To the extent possible, Cornell will maintain the full confidentiality of such disclosures.

    The appropriate remedy for problematic situations can vary. In the great majority of situations, it suffices for the individuals involves to recuse themselves from decision-making authority over one-another, and to not take courses taught or TA’d by an individual with whom they have a relationship, or to grade, write reference letters, or participate in evaluations of individuals with which they have a personal relationship. In some situations, however, where inappropriate, abusive or harassing behavior has occurred, stronger remedies may be required, ranging from close supervision by an independent individual to sanctions, even including loss of tenure and dismissal.”

    So to me, that would be a broad statement covering everything I can think of here.

    Then in the FAQ you can tackle specific cases, such as faculty members entering into relationships with students at various levels, graduate students dating other students, etc. The FAQ could cover concerns about not wanting to forcibly “out” an LGBT individual, or publicize relationships that some community members might have difficulty understanding or accepting. For inspiration, you might look at the conflict of interest policy, and then at the conflict of interest FAQ that accompanies it.

    I’ll close by thanking the committee for tackling an important but also a complex, delicate question. Getting this right does start by agreeing that there are many problematic situations that we need to avoid, and where we should absolutely side with the victims. Preventing abuse is important. Yet we have to also appreciate that love can’t easily be controlled by policy, and that creating a new category of felons who were simply adults engaging in consensual activity protected under the law can’t be the right way to prevent victimization. After all, we could prevent all abuses by simply banning all relationships, of all non-academic forms, between Cornell faculty, students and staff. That would cover all the problematic cases, yet would create more problems than it solves. So a balance is needed.

    The current draft proposal lacks the necessary balance, in my view. I don’t see it as a horribly flawed proposal, and I’m not saying we don’t need a policy aimed at these specific issues. I’m simply saying that you won’t come up with the kind of policy we really need if you approach it as an enumeration of all the bad behaviors (while seemingly omitting other equally bad behaviors, and yet also entrapping people who are entirely innocent). That can’t work.

    The conflict of interest policy had the same issue, and solved it elegantly. The members of our relationships committee can do so too!

    Respectfully,

    Ken Birman

  4. As a further and somewhat unrelated remark, I perceive an inconsistency in the logic of the existing discussion, and in fact several. I’ll highlight one but it seems to me that one could tease out at least three or four (and remarks at the Senate, available to you from Ms. Waymack, did so).

    Consider a student who attends Cornell but in fact is related to a faculty member, perhaps a faculty member’s child. Clearly this is a conflict of interest and we have ways to manage those. Any administrator knows them.

    In her remarks to the Senate, Ms. Waymack said that the mere potential of conflict of interest due to the mere possibility of an undisclosed relationship forces us to think not only in terms of an absolute ban on all forms of relationships between faculty and students, but also on all relationships between graduate students (remarks on “slide 3”, documented in the Senate record, available to you via the Senate minutes. You can read her exact wording if you doubt my summary).

    So to me this illustrates an inconsistency: we have an equally problematic issue with parents and children, yet we don’t ban Cornell children from attending Cornell because of the mere risk that to pursue “any course of study” they might have to take Mom’s class. We deal with it.

    Asked about this Ms. Waymack spoke about cases in which open disclosure might be an issue for those involved, pointing (obliquely) to the LGBT community, members of which might not wish to be forced to “out” themselves, and to the case of “poly relationships” involving more than two individuals. A faculty member of the Senate took this to mean “cheating spouses” but Ms. Waymack seemingly had something else in mind. Anyhow, she said that because people might be unwilling to disclose to the 6.xx office, we would have to ban such situations outright.

    To me the logic here is tortured, at best, and it illustrates problems with the current approach to the entire question. Yes, we have a need for a more enlightened and comprehensive policy, but we can’t achieve that with special cases for people who don’t wish their families to learn their sexual orientation, or for any of the 17 other special cases listed on a slide Charlie showed us (and that was just a slide with categories; it didn’t even consider the cross-product associated with the sorts of activities Ms. Waymack seemed to have in mind).

    We also run grave risk of “entrapment” and “revenge” situations with the current language. Suppose that a Cornell community member becomes involved with someone they met far off campus, perhaps at a party in one of the big wineries out in the wine area. They might not even be aware that they had entered into an illicit and impermissible relationship. Yet later, in the event of a difficult breakup, the could be accused of having concealed what might be an egregious violation, such as a faculty member having anonymous sexual hookups with undergraduates, and could lose their job. We don’t have easy ways to spell out every such possible case, and every possible way of handling them.

    Perhaps Ms. Waymack didn’t really speak for the committee when she made the remark that elicited this second post by me. On the other hand, perhaps she did. If so, it worries me that the policy already has such flaws even in the current draft form. This is just the tip of an iceberg. My suggestion, posted above, would help you sort out principle and articulate that distinct from application to specific situations.

    Ken Birman

  5. I commend the Committee for its thorough and transparent process. I am concerned that this version is limited only to relationships between students and faculty. Relationships between students and staff can also undermine the mission and our obligations to student confidentiality. For example, staff with access to student records in a department or college or school should not be allowed to date students in that department/college/school because of the power differential and (mis)erceptions of favoritism or conflicts of interest. Perhaps staff and student relationships are covered in another policy. If not, it should be addressed here while all of this significant work is already happening.

    1. The peril of asking for comments section by section is that I didn’t see the next section before submitting this comment. However, the gist of the comment stands. Prohibiting only those staff/student relationships where the staff member is in a position of power is unnecessarily naïve and limited view. A frontline staff member may, in fact, have little authority over a student, nevertheless, even a consensual relationship between them in the same department that leads other students to think the student is somehow favored is no less problematic. This is captured in other parts of the policy but can be clarified here.

  6. To close the comment period on a Saturday during Spring Break is problematic. It should be extended at least until close of business or even 11:59 p.m. on Monday, April 9th, when students have returned. Additionally, representatives from each assembly should be encouraged to share this draft with their respective constituents and encourage them to provide comments and feedback, similar to what representatives on the President’s Campus Climate Task Force are doing. That would only reiterate how transparent of a process this has been.

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