Abusus Non Tollit Usum or Do Not Throw Out the Baby with the Bath Water
Review of Paul R. Abramson: Romance in the Ivory Tower: The Rights and Liberty of Conscience, MIT Press, 2007, 176 pp.
Reviewed by Joseph S. Fulda
The original publication of this review is located at http://www.springerlink.com
Forthcoming in SEXUALITY AND CULTURE, vol. 12 #1, March 2008, pp. 68-70
The Conceptual Aims and Practical Goal of the Book
Abramson wrote this book with two aims in mind: (1) To avoid giving offense to any, while (2) arguing for “safeguarding the right to think and choose, according to one’s conscience, as it applies to faculty-student romance” and the choice of whom to romance, more generally. The explicit goal of the book is to “reverse [the] situation” where when “you lose your heart, you could lose your job.”
The False Issue and the Real Issue
Abramson does not deny that conflicts of interest are possible, but believes rather that such solutions as “recusal, disclosure, and third-party evaluations” are the answer, not simply banning romance. Moreover, Abramson does deny-and we agree-that were universities honestly motivated by conflicts of interest, they would not routinely place inappropriate pressure on faculty to favor athletes (who bring in money), and argues that when it comes to banning romances the issue is, once again, money. Money. Listen to Abramson on p. 30:
Why, you may wonder, do companies prohibit romance in the first place? …[T]he truth of the matter is that the primary motivation for the nonfraternization policy is the belief that it reduces civil liability in sexual harassment lawsuits …the rhetoric about power differentials and favoritism notwithstanding. …How, you may wonder, can this be true? Or more specifically, what does romance among consenting adults have to do with sexual harassment? The real answer is precisely nothing. …The big question, then, is why should consensual romance be denied in the service of protecting against sexual harassment lawsuits?
And, on pp. 32-33:
Is this fair? Or more important, is this legal?
It is, of course, patently unfair. The only real question is whether it is legal, or more significantly, treated as legal?
Before going on to Abramson’s own answer to this question, it is well to remark that he is not against saving money per se; he advocates that consenting partners sign a “love contract” releasing the university from liability. But the current approach, he likens to banning purses and laptops because some may be stolen or eliminating parking lots and cars on campus when problems arise in these domains.
The Framework of Abramson’s Argument
Space and the desire to leave something for the reader to discover on his own preclude us from giving more than a bulleted outline-a sketch-of Abramson’s argument, with one hopes not too considerable damage to the subtleties and nuances-for which, of course, the reader of this review must purchase the book. Here is the sketch: • The First Amendment protects both the free exercise of religion and precludes the establishment of a national religion or preference between religious systems.
• The draft of the Amendment originally written by Madison included a third clause regarding “the rights of conscience.”
• The constitutional archives, by which Abramson means the entire corpus of writings of the Founding and Framing eras, are not ultimately dispositive about whether the oft-mentioned rights of conscience were parallel to, underlay, or were a synonym for the free exercise of religion and the proscription of preference between religious systems-or perhaps some combination of all three.
• The constitutional archives are not ultimately dispositive as to whether the free exercise clause extends to behavior not injurious to others, but leans in that direction.
• The Ninth Amendment protecting unenumerated rights can certainly be read as extending to the rights of conscience broadly considered.
• Anchoring the liberty of conscience in the First or Ninth Amendments grants it affirmative protection as something inherently worthwhile, while recognizing a zone of privacy merely walls it off from certain intrusions.
• For something as fundamental as the liberty of conscience, extending both to beliefs and behavior not injurious to others, a firmer footing than the negative right to privacy is desirable.
• Sexual and romantic choices are ultimately matters of conscience and were pretty uniformly so regarded at the time and place of the Framing.
• Universities receiving federal funds ought to recognize the liberty of conscience in its entirety, because it is the right thing to do and because it is mandated by the Constitution’s core principles if not perhaps by its text and if decidedly not by the history of that text’s interpretation.
A few small problems mar this book, and one significantly larger issue. The small problems include, inter alia, the absence of citations for legal cases, the repeated use of “discrete” for “discreet,” and the reversal of meanings given “impartiality” and “partiality.”
The larger issue is that Abramson sees fit to properly ally the rights of religion and conscience in the choice of romantic partners throughout most of the book, but towards the ends adopts a strange (given his first aim) and entirely unnecessary (given his second aim) and, indeed, counterproductive hostility towards religion.
The Decalogue commands respect for parents, but a core religious teaching is that children may entirely disregard their parents’ wishes when it comes to a choice of spouse. Moreover, even the young are not to be married without their consent. This lesson is taught in Genesis where Rebecca, a child prodigy who spoke and reasoned at 3 years of age, had to be consulted before Milcah and Laban released her to Abraham’s servant Eliezer as a mate for Isaac.
This hostility undermines his own parallel throughout the book’s body between religion and conscience and I cannot divine what impelled him to do this to his own argument.
Still, the book remains largely persuasive and deserves a fair hearing from the (anyway) largely secular academy to which it is directed.
Out of the Campus Closet: Student Professor Consensual Sexual Relationships
Review of Paul R. Abramson: Romance in the Ivory Tower: The Rights and Liberty of Conscience, MIT Press, 2007, 176 pp
Reviewed by Barry M. Dank aka the dankprofessor
The original publication of this review is located at www.springerlink.com
Forthcoming in SEXUALITY AND CULTURE, Vol. 12 #1, March 2008, pp. 68-70
Might one be engaging in utopian thinking if one believes that universities, particularly American universities, are places where matters relating to conscience and liberty and freedom of association are taken very seriously? The answer is unequivocally yes since most American universities are no longer a refuge for persons believing in and wanting to act on these values, values which have been integrally linked to the American ethos. Rather than being a refuge for these values, American universities have embraced authoritarianism with a vengeance, discarding freedoms that have been held by many as taken for granted freedoms guaranteed by the Constitution.
Nowhere have these constitutional rights been more flagrantly violated than on American campuses where there have been concerted efforts, and generally successful efforts, to formally ban intimate sexual and romantic relationships between students and professors. Hardly any of the campus advocates for these bans have given any credence or recognition to the possibility that their agendas represent violations of civil liberties in any form. They have effectively disguised their attack on basic freedoms as a form of protectionism with their feminist engendered slogan that differential power precludes consent, which comes to be equated with the idea that students, particularly female students, are unable to consent to any form of sexual relationship with almost any professor since professors always are in a higher power position. Even if a female student should protest that her consent was given freely, the campus authoritarians believe that they know the mind of the student better than the student does, and that their will must replace the will of the incapacitated student.
The disputation of such views has not facilitated an open and polite exchange of ideas. Rather dissenters have been usually viewed as lecherous professors, whether they are male or female, who wish to have free rein for their alleged predatory behavior. In one way or the other campus sexual code dissenters are considered to be morally suspect while the sexual code advocators and promulgators are held to be above suspicion. Or, to put it in other terms, sexual banning supporters are held to be academic insiders while the banning dissenters are held to be dissident outsiders, outside of the post-modern, feminist ideologies of the day.
With the authorship of Romance in The Ivory Tower: The Rights and Liberty of Conscience, UCLA psychology professor, Paul R. Abramson, has fully entered into this fray as an outsider holding that campus predation has run amok in the form of academics discarding basic constitutional guarantees in their quest to “protect” and control both students and professors. Professor Abramson argues that the control they want is to prevent adults on university campuses from choosing whom they date, whom they love, whom they choose as romantic partners. In his words, “Choosing who we love, even on a university campus, is no less a fundamental part of choosing how we live.” And such is a choice that cannot in principle be taken away by university authorities since the power to make the choice resides in the parties directly engaging in the choosing. He notes that “For all intents and purposes, many universities throughout the United States have determined that the power is theirs to wield. This book challenges that assumption, arguing instead that the power is unquestionably within the province of the individual…”
For Abramson, taking away the individual rights of conscience is a direct attack on the autonomy of the individual. Rights of conscience go beyond matters of religion and “…can be extended to all matters of substance that require serious deliberations about right and wrong, consensual sex and romance included.” In Abramson’s view, this individual right of conscience should protect the “…right to make romantic choices without interference or refutation by governmental and institutional authorities.” And very importantly, the author argues that this right is embedded in the Constitution in the form of the Ninth Amendment which holds that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And Abramson holds that the right to romance is one such important right that is protected by the Ninth Amendment. For those who might argue that the right to romance does not reach the level of importance meriting constitutional protection, he responds in the following terms: “Romance…is a quintessential right retained by the people. It is no less essential to our well-being and happiness, I assert than freedom of speech. It is hard to imagine liberty without either right. Furthermore the right to choose a romantic partner is a prerequisite right to romance itself. Romantic choice is therefore the vehicle via which we exercise romantic freedom.”
In terms of defending this interpretation of the Ninth Amendment, Abramson heavily relies on the writings of our nation’s founders, particularly Jefferson and Madison with the greatest emphasis put on Madison. For Madison, the protection of unenumerated rights of the people via the Ninth Amendment is of crucial import. If such was not the case, the governmental authorities can do just about anything to their subjects unless such was specifically forbidden by the Constitution. And for Madison and Abramson and for this reviewer, the people should not be subject to the unrestrained arbitrary impositions of a government without constitutional authority. In essence, Abramson takes seriously the notion that citizens are not subjects to be experimented upon, that their will to decide, reject or consent cannot be removed from above. And throughout this volume, the author is ethically engaged as he hopes that the citizenry in general be ethically engaged since for him it becomes axiomatic that an ethic imposed from above is a form of authoritarianism and such authoritarianism should not be employed to mandate what people believe or how people act.
Nor does Abramson hold that matters of individual liberty and autonomy are without ethical and legal constraints. Conduct harmful to others is not protected conduct. Abramson embraces John Stuart Mill’s perspective “…that society should only protect its citizens from harms that violate rights. Liberty prevails until someone’s rights have been violated.” Abramson does recognize that the boundaries defining what behaviors actually represent harmful behavior in the Millsian sense can be quite ambiguous. But for Abramson when it comes down to the issue at hand, there is no question that dating, including, of course, dating between students and professors is a “fundamental life choice.” And that “Most serious romantic relationships, in fact, begin with a date. It is therefore a necessary prerequisite to the intimate side of life.”
Of course, no matter how elegant he is in the presentation of this viewpoint, and in this reviewer’s opinion, he is quite elegant, almost all persons advocating banning student professor sexual relationships will not be impressed since generally they are not impressed by any sort of intellectual dissenters from their ordained truth. What Abramson is facing when it comes to this issue are many persons who are on a moral crusade, and will attempt to deal with him not simply by trashing his ideas but by trashing his very personage. The Chronicle of Higher Education was one of the first media sources to provide pre-publication coverage of the Abramson book and presented an interview with Abramson which functioned on the whole to provide an accurate depiction of his forthcoming book. But what the CHE also did was to publish an adjacent full-page picture of Professor Abramson. Initially I was perplexed as to why the CHE devoted so much space to Abramson’s picture; after all, Abramson was not a celebrity, much less an academic celebrity. But then I learned what I believed to be the reasons for the picture publication, and my learning was based on the reader forum that followed said publication in which so many readers were not concerned with the content of the interview but rather were concerned with the picture of Abramson which came to represent for them Abramson as a predatory and lecherous professor or as one reader commented “…looks like a letch right out of central casting.” This photo was enough for all too many of the CHE readers to simply dismiss Abramson and whatever he had to say. Unfortunately, appearances do count when they should not, and all too often trump the possibility of intellectual analysis and critical thinking.
Pre-publication dismissals of Abramson’s book have generally not reflected any careful scrutiny of the issue, but rather have generally been based on snap judgments and intensely visceral reactions. For example, one blogger wrote that Abramson will apparently do everything to justify sex between students and professors. “Thus, man will do everything to rationalize, normalize, legalize, and excuse everything; such as having sex with a professor…He (the professor) does not want to be told that sex between a student and an adult are wrong.” Of course, Abramson is not telling anyone that sex between and adult and child is right, morally or legally. However, the dilemma facing Abramson is that many persons in the general population and in universities will engage in a default assumption translating student into child, professor into adult and therefore feel that they are dealing with sex that cannot be consensual, since one party to the “relationship” is always a child; no matter what the age, student is equated with child. Such thinking most likely goes back into childhood when the teacher is always the adult and the student is always the child. Many persons just cannot get beyond this framework. This is also reflected by the tendency of some professors and some administrators referring to students as “kids” or “my kids,” regardless of age.
Abramson is aware of the stereotype of the student professor sexual relationship as representing “the lecherous male professor seducing gullible female undergraduates.” He is also aware of the writings and influence of Catherine Mackinnon and her thinking that all workplace romantic relationships represent sexual harassment. What Abramson does fail to represent is that the notion of the female student unable to provide consent was originally popularized by Billie Dziech and Linda Weiner in their 1984 book The Lecherous Professor: Sexual Harassment on Campus. It was this book that became the sacred book for campus feminists and part of the often repeated rant that differential power precludes consent. It was in this context that campus feminists fueled the banning movement in the framework of repeatedly infantilizing female students and presenting female students as victims in the same sense that children are victims of adult male predators. It was this feminist vision that fueled the banning movement and was ultimately combined with the assertion that when professors teach or supervise a student and engage in a sexual relationship with a student then it becomes a conflict of interest.
Abramson does attempt to deal with the conflict of interest issue in the context of the professor engaging in impartial grading of a student with whom he has a sexual involvement. In order to preserve the appearance of impartial grading, Professor Abramson suggests that a colleague may be asked to intervene to provide a third party evaluation of the student. I consider third party evaluation to be problematic since the sexually involved student ends up being treated differently than all other students who are graded by the same professor. In principle, in terms of the course requirements and course process, students should not be treated in any way differentially based on their relationship, sexual or otherwise, with the professor. Invoking matters of appearances is not an adequate rationale for differential treatment. Also, in many cases the usage of a third party evaluator is an impossibility since grading is often in part based on what happens in class, such as class participation, in-class projects, etc. Abramson does not go beyond suggesting third party involvement. As Professor Abramson indicates, some universities operate under a coercive disclose and dispose policy which means that the professor must inform the appropriate administrator of the situation, and said administrator then disposes of the situation with absolutely no consideration given to the privacy and the right of the student to non-disclosure.
But conflicts of interest issues are not the core fueling the banning movement. Professor Abramson knows that professors in general are not wracked out over conflict of interest issues. Professor Abramson also indicates that professors engage in myriad forms of favoritism that are not at all emotionally tinged. For example, students enrolled in a professor’s class may be a daughter or son of a colleague or even one’s own son or daughter or a friend or a relative of a friend, or a professor may preach feminist sister solidarity or racial solidarity while grading students who are not part of his or her group or a professor may engage in out of class political demonstrations with likeminded students and prejudicial grading hardly ever becomes an issue. Professors emotionally committed to banning student professor relationships are not conflict of interests obsessed; they are sexually obsessed; obsessed with stopping other professors from engaging in what they consider to be sexual abuse of female students/children. And therefore all of the good legal and historical analysis by Professor Abramson becomes an irrelevancy for them because they see the subjects of these professors as being in an incapacitated state, a state where consent is an impossibility, a state where the subjects must be removed from the power of the offending professor and taken out of the classroom and where the demand is that the lecherous offending professor be removed from all classrooms.
Professor Abramson bemoans the fact that so few professors have spoken out against such sexual banning, particularly the lack of public professorial critiques of the impending UC policy which was passed in 2003, and banned romantic relationships by professors with students who they supervise (teach) and students who are in academic areas in which there is some likelihood that the professor may be their teacher at some future time. Abramson in his 2003 Los Angeles Times Op Ed piece was one of the few UC professors publicly speaking against the impending policy. Abramson notes that student and faculty protest against the UC policy did not even occur at UC Berkeley where protests are almost a fact of everyday life. However, he does fail to note that UC Berkeley Professor of English Catharine Gallagher did initiate a protest of this policy after its passage and was joined by other UC Berkeley faculty in petitioning the UC Berkeley Provost, but the Gallagher protest and petition was too little and too late.
Professor Abramson understands that one of the major reasons there were so few faculty voices raised in protest is that “dissenting” professors are on the whole afraid, afraid of being treated as suspect, afraid of being treated in sexually objectified terms in the manner similar to how Professor Abramson has been treated. And, in fact, I believe that untenured professors at UCLA or at whatever university, whether it be an elite or not so elite university, are extremely unlikely to speak out. Even as a tenured professor and as professor who has strongly spoken out against these sexual bans, Abramson still has some trepidation about being presently identified as a sexual code violator as indicated by his publicly stating that he is out of the dating game, that he leads a staid married life and that at one time, 20 or so years ago, he did have a couple of relationships with students, but now he is beyond that, therefore he is OK. If Abramson takes his ideas seriously, he would be eager to state I am OK now and I was OK then. And I do understand the dilemma that if a UCLA professor wrote a book of the sort of book Abramson wrote and he stated that he presently dated students and such was OK, he would then end up being investigated and probably charged with violation of the UC sexual code.
However, even if there has been minimal response by academics critiquing these fraternization policies, and few persons doing empirical research on faculty student sexual/romantic dyads, Professor Abramson should still have done a more thorough review of this literature and reported on the highlights of this literature and indicated what he considers to be most germane to his concerns. For example, in the area of research on faculty student relationships, he could have cited two important empirical studies of student professor relationships (Bellas and Gossett 2001; Skeen 1983) as well as citing numerous scholarly critiques (Dank and Alberquerque 1998; Dank and Fulda 1998; Hooks 1996; Kincaid 1999, 2000; McWilliam 1996; Nehring 2001; Olivero 1994; Patai 1998, 2002; Pellegrini 1999; Pichaske 1995; Refinetti 2001; Tittle 1998).
Abramson rejects the notion that at the core of the movement to prohibit professor/student relationships is an emotional sexual dynamic which is fueled by an underlying child, adult sexual predator imagery. Rather Abramson embraces the idea that “The real reason for these prohibitions…is that universities want to further reduce their liability in civil lawsuits-no sex and romance means no negligence.” Such represents the idea that this movement to ban student professor relationships simply is an instrumental, rational based policy to save universities money. I do not deny that some academics support the banning policy for this reason, but the supporters of banning at UC have not cited any case in which UC was sued in whole or in part relating to a consensual relationship between a student and a professor. And Abramson does not cite such a case. And as Professor Abramson indicates the case employed by ban supporters to get this policy adopted dealt with an off campus sexual assault against a student by the dean of the UC Boalt law school. The invocation of the UC Boalt law school case demonstrates the mental gymnastics that UC ban supporters had to go through to implement their policy; as Abramson notes there were sexual assault laws on the books in California via which the dean could have been prosecuted. The bitter reality is that to get this policy implemented, the supporters had to assault the idea that sexual consensual relationships between adults and sexual assaults are not interchangeable.
For academia as a whole and for the population as a whole, if one takes the sexual out of this anti-sexual policy, interest in the policy would become just about nil. But the sexual component cannot be taken out of this policy. Sexual meddlers and crusaders would not tolerate it. Just as the prohibition of prostitution has never been about the state saving money, nor the prohibition of homosexual acts between consenting adults has ever been about the State saving money, the prohibition of student professor relationships has never been just about universities saving money.
Ultimately the issue is what can save our universities from the moral crusaders, no matter what causes and ideologies the crusaders may embrace. In his book, Professor Abramson has taken an important initial step in terms of elucidating the importance of adhering to basic constitutionally guaranteed sexual civil liberties and sexual rights in American universities. Vigilance in the area of civil rights and liberties is crucial if authoritarian interventionists are to be prevented from controlling the most intimate aspects of persons’ lives. But such vigilance must also be combined with an understanding of the social psychological dynamics propelling true believers to seek to control the sexual lives of others. If we are to succeed in affirming and protecting the value of conscience and liberty, those opposing these values cannot be allowed to pass themselves off as feminists just trying to protect those who supposedly cannot protect themselves, or university administrators just engaging in fiscal savings; they must be confronted and critiqued at every possible opportunity and exposed as authoritarians whose power and control agendas are antithetical to the ideals of higher education.
Bellas, M. L., & Gossett, J. M. (2001). Love or the lecherous professor: Consensual sexual relationships between professors and students. The Sociological Quarterly, 42, 529-558.
Dank, B. M., & Alberquerque, K. (1998). Banning sexual asymmetry. Electronic Journal of Human Sexuality, 1.
Dank, B. M., & Fulda, J. S. (1998). Forbidden love: Student-professor romances. Sexuality and Culture, 1, 107-130.
Hooks, B. (1996). Passionate pedagogy: Erotic student/faculty relationships. Z Magazine, Mar 1996 (pp. 45-51).
Kincaid, J. (1999). Power, bliss, jane and me. Critical Inquiry, 25(3), 610-616.
Kincaid, J. (2000). Critical response. Critical Inquiry, 26(3), 615-618.
McWilliam, E. (1996). Touchy subjects: A risky inquiry into pedagogical pleasure. British Educational Research, June 1996 (pp. 305-307).
Nehring, C. (2001). The higher yearning: Bringing eros back to academe. Harper’s Magazine, Sept 2001.
Oliviero, T. H. (1994). Strange bedfellows, thoughts on the bans against faculty-student relations and how they can hurt us. Radical Teacher, Winter 1994.
Patai D. (1998). Heterophobia: sexual harassment and the future of feminism. Lanham: Rowan and Littlefield.
Patai, D. (2002). Academic affairs. Sexuality and Culture, 6, 65-96.
Pellegrini, A. (1999). Pedagogy’s turn: Observations on students, teachers and transference-love. Critical Inquiry, 25(3), 617-625.
Pichaske, D. (1995). When students make sexual advances. Chronicle of Higher Education, 24 Feb 1995 (pp. B1-B2).
Refinetti, R. (2001). Sexual correctness in academia: The case of the professor. Sexuality and Culture, 5(2), 91-94.
Skeen, R. E., & Nielsen, J. M. (1983). Student-faculty sexual relationships. Qualitative Sociology, 6(2), 99-117.
Tittle, P. (1998). On prohibiting relationships between professors and students. Sexuality and Culture, 1, 131-149.
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