In recent years increasing numbers of higher education institutions have implemented policies addressing consensual sexual or romantic relationships between professors and students.1 Representative of the trend, the University of California system, which includes ten campuses, joined the growing list of institutions and systems with policies in July 2003 by prohibiting faculty members from engaging in consensual amorous relationships with students they supervise or are likely to supervise.2 The well-publicized resignation of the dean of the University of California at Berkely's Boalt Hall School of Law following accusations of sexual harassment by a former student3 helped spur implementation of the policy.4 Though admitting a lapse in judgment, the former dean claimed the encounter with the student was consensual.5 The topic of sexual or romantic relationships between professors and students raises sensitive questions and legal concerns regarding the appropriate institutional role, if any, in regulating such relationships, and the following article considers issues related to enactment of consensual relationship policies.
Part II of the article examines motivations prompting colleges and universities to adopt consensual relationship policies. In addition to concerns with the integrity of the academic process and the promotion of ethical conduct among professors, use of policies by institutions represents an effort to provide greater insulation from liability for sexual harassment. The section also discusses criticisms raised by opponents of consensual relationship policies. Significant variations exist among policies and analysis of standards at selected institutions and Part III allows consideration of the continuum of standards available.6 As more colleges and universities enact consensual relationship guidelines, the chance of legal objections increases-especially in light of the Supreme Court's decision in Lawrence v. Texas7-and Part IV contemplates the form of potential legal challenges. Part V considers the usefulness of consensual relationship policies in reducing institutional liability for sexual harassment. Despite practical difficulties in designing a workable consensual relationship policy and concerns with university officials unduly meddling in the private affairs of consenting adults, the article concludes, in Part VI, that courts would likely uphold the authority of institutions to enact consensual relationship policies, especially those limited to when a professor exercises some form of supervisory or academic authority over a student.
II. INSTITUTIONAL MOTIVATIONS TO ENACT CONSENSUAL RELATIONSHIP POLICIES
Several impulses lead colleges and universities to enact consensual relationship policies. A key rationale for institutions to create policies stems from a desire to protect the integrity of a school's educational mission. Institutions not only seek to protect the students potentially involved in such relationships but third parties as well. Avoiding legal liability for sexual harassment represents another significant reason compelling colleges and universities to put consensual relationship policies in place. Protection of the reputation and image of a school, especially following negative publicity connected to the existence of relationships between professors and students, provides an additional incentive for colleges and universities to adopt a policy. While useful to assess criticisms aimed at consensual relationship rules, consideration of the reasons behind implementation of the policies also helps predict the response of courts faced with legal challenges to such standards.
An important motivation for institutions to design consensual relationship standards stems from a desire on the part of schools to protect their educational missions by promoting appropriate standards of professional conduct among faculty in their dealings with students. The University of Iowa's policy states, for example, that "[t]he integrity of the University's educational mission is promoted by professionalism that derives from mutual trust and respect in faculty-student relationships. …