University of Chicago law prof ignores civil liberties of student and professor couples

Professor Martha Nussbaum has continued her posting re the the Spitzer case on the University of Chicago Law School Faculty blog. Her latest post deals with the question “Is Sex Special?” and it is in this context that towards the end of the post she comments on issues relating to student and professor consensual sexual relationships.

Professor Nussbaum ends up conflating sexual harassment and student professor consensual dating since in her terms such relationships may start up as consensual ones but “…may evolve in a way that puts undue pressure on the weaker party.” Such would be similar to arguing that heterosexual intercourse should be banned because some of the time it may end up in a rape situation. Or that marriage should be banned since ultimately it may put one party to a relationship being the weaker party. Such is often the case in a myriad of relationships. If one wants to regulate situations of sexual harassment one could do so without banning consensual relationships.

Of course, once these policies come into being it does not matter whether there is sexual harassment. Such is the case since a third party informant can then bring down the consenting couple and trump all concerns about privacy and consent. Professor Nussbaum is obviously naïve about such situations. On the other hand, she may look up to persons such as Linda Tripp when she informed on her “friend” Monica. Does Professor Nussbaum believe that such was a righteous informing since as a White House intern, Monica was the “weaker” party in the relationship?

Naivete also enters when Nussbaum states that Professor Lande’s future need not have been compromised in the context of his dating a particular student. She states: “He could simply have arranged things so that he did not supervise this particular graduate student’s work. That happens all the time.” I do not know that it happens all of the time, but I do know that it is not simple when it does happen. Terming this situation simple obscures the fact that almost always this involves the violation of the student’s privacy, and puts her educational fate in hands of professors and university bureaucrats who now see her as the girlfriend of so and so. Does Professor Nussbaum really think this situations helps the student?

Professor Nussbaum indicates that the aforementioned situation may be impossible

“and suppose Landes had indeed been deterred by the existence of such policies: then, as he says, “I would have been a big loser.” Nonetheless, as Landes himself acknowledges, it is still possible that the overall benefits of such policies (Landes mentions “reducing coercion by men”) exceed their costs.”

Well, it may not have been only Professor Landes who ends up being a big loser; the student could have ended up even being a bigger loser. And there is no escaping the coercion factor. In the Landes scenario both he and the student could very well end up being coerced by the university sexual police which may very well have no interest in civil liberties and due process and in their framework other legal niceties.

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