Comments on: Dipping one’s pen in the company ink

By: Doug Muir

Doug Muir — Fri, 10 Oct 2003 10:44:45 +0000

Ogged’s post is so good that I hesitate to quibble. But, really, what else are we here for? And anyhow, it’s a very small quibble. I firmly agree with him on the “guide and teach” point; and further, that the university isn’t obligated to play dumb—in fact, that it may have a clear obligation to /not/ be dumb. Agreed further, that it’s entirely consistent with the university’s mission for it to say that it knows what’s best for its undergraduates. (And I note in passing that the “market” for universities, while very imperfect, is big enough that a dissatisfied student does have options; if you don’t like Conservative State U, transferring to Good Times College of Liberal Arts is at least theoretically an option). The quibble: in loco parentis is a term of art, and WRT universities it has been weakened to the point where it can now be considered moribund if not altogether dead. Ogged obviously knows this, but from a legal POV you can’t actually “salvage” bits of an exploded doctrine; you have to build them up again, as it were from scratch. As far as I know, the various bans and codes have not yet been thoroughly tested in court. There have been cases, but there is not yet a clear body of doctrine on how to address these issues. That doctrine may be as simple as “colleges can ban as they please, or not”, but lawyers being lawyers—or, more precisely, judges being lawyers—I suspect it will be a bit broader than that, with some attempt to provide more intellectual justification. Check back in five years. (“The common law: it’s like watching someone else do bonsai!”) A bit of googling can turn up the interesting details of loco’s decline and fall, and various attempts to breathe new life into it. The Invisible Adjunct had a recent post on just this point (July 30, 2003) with a link to an interesting article. (The Adjunct also has a recent post, today or yesterday, referring to this very thread.) Doug M.

By: Jason McCullough

Jason McCullough — Fri, 10 Oct 2003 08:09:55 +0000

“Chimps don’t band together based on obsessions with Ayn Rand” I wouldn’t bet on it…..

By: clew

clew — Fri, 10 Oct 2003 02:20:33 +0000

I wouldn’t throw grad students to the wolves. They will, presumably, be at least four years more mature, but they’re a lot more ‘stuck’ to their departments professionally. Besides, one of the most vivid little love tales I remember is that my grad school dept. chair had married two of his students. Neither finished; at least one committed suicide. The other vivid little tale is that two of my profs were very happily married, after a lengthy long-distance courtship and then a two-body problem career. “Never fall in love until you both have tenure”, one of them said to me. And then they solved a Hilbert problem and were offered the colleagues of their choice in some lovely little New England powerhouse. So! What I left out of my first post, but was probably also said by one of the Hilberters, was that Sublimation is a powerful force in scholarship.

By: ogged

ogged — Thu, 09 Oct 2003 20:29:11 +0000

All “blanket bans” seem unfair, and particularly so in this case because the exceptions are heartwarming tales of amorous bliss. But there’s a major and, for dsquared, fatal, disanalogy between universities and corporations (or even hospitals and doctors’ offices): the mission of the university is—in part and at least nominally—to guide and to teach. I’m surprised in loco parentis hasn’t come up yet, because I think some parts of it are worth salvaging. Undergraduates—like everyone else, I’m willing to throw grad students to the dogs—are entrusted, and have entrusted themselves, to the university. Framing the issue in terms of “consent” is rhetorically effective, because it appeals to our by-now-almost-reflexive distaste for the PC Nanny Regime, but it glosses over the fact that, in the vast majority of cases, having sex with a youngin’ who is in your thrall just isn’t very nice. The university, as a repository of knowledge (and even wisdom), isn’t obligated to play dumb and treat all the individuals within its ambit as equal and equally competent actors. It’s entirely consistent with the university’s mission for it to say that it knows what’s best for its undergraduates—in fact, I think there’s a good case to be made that the failure to institute such a ban would be a dereliction.

By: Doug Muir

Doug Muir — Thu, 09 Oct 2003 19:31:37 +0000

“Can’t see much of a case for a blanket ban on either, to be honest. Certainly not for medical doctors…” Well, the American, British, and Canadian Medical Associations would all beg to disagree with you, Dan. They all have exactly those bans, and have for many years. Here’s the AMA’s official position: ‘Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct. Sexual or romantic interactions between physicians and patients detract from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician’s objective judgment concerning the patient’s health care, and ultimately may be detrimental to the patient’s well-being.’ The AMA is also very down on relationships between doctors and /ex/-patients. They don’t constitute misconduct per se, but they are viewed very askance: ‘Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship. Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.’ A number of states have enacted the AMA rules into law; in Colorado, for instance, boinking a patient can land you in jail for up to a year. Even in states where they haven’t yet passed such laws, a doctor who has sex with a current patient has still committed professional misconduct. That means he/she is subject to disciplinary action, up to and including suspension or loss of his/her license to practice. Now, you can argue that you’re right and they’re wrong… but the AMA and CBA are self-regulating organizations; in other words, they’re doctors regulating doctors. And most doctors do indeed support an absolute ban. One recent survey of Canadian doctors found that over 95% thought a sexual relationship with a patient could never be therapeutic, nearly 70% thought it was “always” an abuse of power, and 62% supported an absolute ban (Ovens & Permaul-Woods, CMAJ, 1997). So, maybe you “can’t see much of a case”, but the doctors clearly can… and I’d suggest that they’re a little closer to the issue than you are. Doug M.

By: Doug Muir

Doug Muir — Thu, 09 Oct 2003 19:10:36 +0000

“Selling grades, for cash, sex or cleaning services, is wrong and it is correct for a university to require that its employees don’t do it. But that leaves the large category of potential relationships which are not based on quid pro quo” Well, do you have some way of telling a relationship that’s 100% driven by love or lust from one that’s, say, 60% so and 40% sex-for-grades? —Of course you don’t. So you’re basically willing to open the door for sex-for-grades, and also various subtle forms of sex-by-intimidation. Because, well, adults should be free to arrange their sex lives as you see fit. I dunno. You reject the charge of libertarianism, but this has the look and feel of a libertarian argument to me—right down to the de rigeur charge of irrationality (in this case, “prudery”) against those holding opposing views. Well, I read “Savage Love” every single Tuesday… and I think prof-undergrad sex is a questionable idea at best, and entirely appropriate for prohibition. Basically it’s a rational burden/impact test. Is the regulatory burden (no prof-undergrad sex) proportionate to the good achieved (blocking or at least curbing abuses)? Well, the impact on the sex lives of the undergrads is pretty minimal—it’s not like your average UG lacks for sexual opportunities. And the possible abuses are pretty significant. So IMO the scale tips in favor of some sort of regulation—and, as noted upthread, a simple ban seems the most straightforward way to do it. Doug M.

By: Doug Muir

Doug Muir — Thu, 09 Oct 2003 18:58:03 +0000

“I think you misunderstood my original reply.” No, I understood it just fine. I just disagree with it, and am trying to draw you into an argument that I think you’ll lose. You, in turn, are wiggling away. Which you’re perfectly entitled to do, to be sure. Doug M.

By: matt Weiner

matt Weiner — Thu, 09 Oct 2003 18:18:24 +0000

Fair enough. My general feel is that bans on faculty/student (and other similar) relationships can serve the purpose of discouraging the faculty from hitting on the students, which can be bad when the student isn’t interested. So this isn’t meant to say that the power asymmetry undermines consent, when that consent is really there. The idea is more that, if your student really is interested in you, your relationship should wait till the end of term. From what I recall of the UC policy, it is (1) far more restrictive than desirable for the purposes I’ve proposed and (2) not necessary to deal with the situation that inspired it, in which the conduct that was alleged was non-consensual (the student said that she was passed out).

By: dsquared

dsquared — Thu, 09 Oct 2003 17:26:04 +0000

Can’t see much of a case for a blanket ban on either, to be honest. Certainly not for medical doctors, and neither for psychiatrists dealing with people who would be considered capable of consenting to relationships with someone else. It’s just a general scepticism about attempts to take the power out of sex. As I say, sub-Foucault.

By: Matt Weiner

Matt Weiner — Thu, 09 Oct 2003 17:00:27 +0000

Daniel—What do you think about doctor-patient sexual relationships? Psychiatrist-patient? These seem to me cases in which, at least arguably, a professional code of ethics ought to prohibit a consensual affair between adults. (Professor-student is not exactly like either of these, of course—I’m just trying to counterexample your general principle, and then we may be able to think about why professor-student relationships might or might not be OK.) (Oh, and that’s doctor-own patient. I would hardly like to say that a doctor should be prohibited from sleeping with anyone who is a patient.)

By: Zizka

Zizka — Thu, 09 Oct 2003 16:54:11 +0000

I quite agree. D-squared’s attempts to be provocative are to be condemned. Nobody has picked up on my thoughtful posts above, so I’ll just note that we have apparently moved into a world which is in these respects far more puritanical than the early Sixties (pre-”Sixties”) world I remember. Back then it was “don’t ask / don’t tell”, but faculty-student weddings (I remember three) were not regarded as scandals at all, even though you had to assume that fornication preceded them. In two cases I know that the bride was hired by the school. There was no victimization (I’ve run into all three brides fairly recently) and the hirees were competent at their jobs. It was always male faculty of course, and I actually lost twice personally—as a young guy competing with older guys with money, and also as a young non-gay guy some of whose avenues to recommendations were thereby blocked. But really, life isn’t fair.

By: dsquared

dsquared — Thu, 09 Oct 2003 15:02:15 +0000

I think you misunderstood my original reply. Selling grades, for cash, sex or cleaning services, is wrong and it is correct for a university to require that its employees don’t do it. But that leaves the large category of potential relationships which are not based on quid pro quo

By: Nabakov

Nabakov — Thu, 09 Oct 2003 14:39:24 +0000

“Simple is clear, clear is good”. Took the words right out of my penis. Real life is not simple and so not immediately clear and then good.

By: Doug Muir

Doug Muir — Thu, 09 Oct 2003 14:30:11 +0000

For the record, I agree with “profs should leave the undergrads alone”. (Grad students, well, they take their chances either way.) The narrower rule—“profs should leave their own undergrad students alone”—is also good IMO, but trickier for a variety of reasons: any student but a last-term senior is a potential future student, the complicating effects of gossip, etc. etc. A simple ban is crude but, well, simple. Simple is clear, clear is good. Doug M.

By: Doug Muir

Doug Muir — Thu, 09 Oct 2003 14:28:07 +0000

“surely the presumption has to be that adults are allowed to arrange their sexual affairs how they please.” Nope, don’t agree. There’s no ‘surely’ there. A narrow majority of adult Americans are married. Married people who arrange their sexual affairs as they please are vulnerable to a wide range of sanctions both informal and formal, from opprobrium through ugly divorce lawsuits to impeachment. Seriously, there are formal, legal penalties for adultery. The criminal ones are rarely enforced any more, but the civil ones go to court a thousand times a day. The spouse who cheats puts him/herself in a vastly worse position in divorce court. That’s more than a social sanction; it may involve large and burdensome financial penalties, whose collection will be backed by the power of the State. People have never been allowed to arrange their sexual affairs as they please. States have been regulating sex for as long as there have been states. The liberty that we presently enjoy in these matters is relative, limited, and historically recent. Doug M.