Radcliffe Quad at Harvard University campus in Cambridge, Massachusetts. Photo Credit: Photo: Jannis Tobias Werner/Shutterstock.com

A prominent Harvard University government professor said he would retire last week after the university placed him on administrative leave amid an investigation of sexual harassment accusations by up to 18 women—including students, faculty and staff—over several decades.

The high-profile resignation renews the debate—this time against the backdrop of the #MeToo movement—of whether relationships between faculty and students can ever be considered consensual, given the power differential between the parties. A number of similar allegations have emerged on campuses across the United States in the wake of sexual harassment scandals in Hollywood, Washington, D.C., and elsewhere.

The situation presents difficult choices for legal officers at institutions of higher learning. While legal experts said that colleges and universities generally have been at the forefront of discussions surrounding on-campus sexual harassment, recent events have led them to re-examine their policies governing student-teacher romantic interactions, namely whether to ban them outright. Massachusetts Institute of Technology, Northwestern University and Yale University recently banned relationships between faculty and undergraduate students, according to news reports, and other colleges and universities have considered similar restrictions on relationships with grad students and others.

“There has always been a level of discussion [at institutions of higher learning] about what kinds of policies we should have and what they should look like,” said Christine Helwick, former general counsel at the 450,000-student California State University system, who is currently of counsel at labor and employment firm Hirschfeld Kraemer's San Francisco office.

“Now we're kind of in a place in society where every institution, every part of society, is struggling with how we go forward with all of these issues.”

As at any employer, the general counsel at a college or university would ideally have a significant role in developing and drafting a policy governing sexual relationships within the organization. In the case of higher-learning institutions, however, other stakeholders involved in the process, likely including the president, board of trustees and, in many cases, faculty members, in addition to human resources officials, according to legal experts who specialize in higher education.

Higher-education institutions are “different from other institutions [in that] faculty have a role in governance, so it's more important to have faculty buy-in than in another setting,” said Susan Friedfel, a principal at Jackson Lewis in the Manhattan and White Plains, New York, offices.

When it comes to specifics, there are pros and cons of implementing policies that prohibit intimate relationships between students and faculty members, the higher-ed lawyers said. While such a policy provides clarity—a clear line that is helpful to people who both work for and are enrolled in the institution—such situations are rarely black and white, Helwick said.

“Like in every other workplace in the world, you're not going to stop romance,” she said. “Once you have people spending time together, that may lead to them having sexual involvement with one another, and it's very hard for the people involved, let alone the institution, to draw a clear line as to when this is an impermissible relationship and [when] people [are] just enjoying themselves.”

Another way to handle the matter, Friedfel said, is to not ban all faculty-student relationships, but only those in which the faculty member has a supervisory or evaluative relationship with the student. Such a policy, which affords more flexibility, may be easier to implement at larger institutions as compared to smaller academic environments, she added.

In addition to the size of the academic institution, its culture is also another important consideration, said Karen Baillie, a partner in the litigation, higher education and labor and employment defense practices in the Pittsburgh office of Schnader Harrison Segal & Lewis and former GC at Carlow University, a Catholic institution based in Pittsburgh.

Also, what may be acceptable in the athletic department may not be acceptable in the nursing school or vice versa, which may create “silos,” she added, where different schools or programs have their own policies.

Speaking of the GC's role, Baillie said, “It can require a good project manager to make sure all the campus constituents are represented and decide if a one-size-fits-all policy makes sense.”