The Yale Law Journal

February 2020

Sex as a Pedagogical Failure

Antidiscrimination LawGender and Sexual OrientationLegal Philosophy

abstract. In the early 1980s, U.S. universities began regulating sexual relationships between professors and students. Such regulations are routinely justified by a rationale drawn from sexual-harassment law in the employment context: the power differential between professor and student precludes the possibility of genuine consent on the student’s part. This rationale is problematic, as feminists in the 1980s first observed, for its protectionist and infantilizing attitude toward (generally) women students. But it is also problematic in that it fails to register what is truly ethically troubling about consensual professor-student sex. A professor’s having sex with his student constitutes a pedagogical failure: that is, a failure to satisfy the duties that arise from the practice of teaching. What is more, much consensual professor-student sex constitutes a patriarchal failure: such relationships often feed on, and reinforce, women’s second-class standing in higher education. As such, these relationships can thwart the legal right of women students, under Title IX, to exist in the university on equal terms with their male counterparts. Whether or not we should ultimately favor such an interpretation of Title IX—whether or not, that is, it would render campuses ultimately more equal for women and other marginalized people—it is clear that university professors need to attend more carefully to the sexual ethics of their own practice.

author. Chichele Professor of Social and Political Theory, All Souls College, University of Oxford. My thanks to the editors of the Yale Law Journal, especially Ela Leshem, Emily Shire, and Sasha Dudding; to the participants of the Power and Powerlessness workshop at Oxford, where I presented some of these ideas; to Paul Myerscough, for discussions of Freud and Jane Gallop, and much else; to Charles Tyler, for legal expertise and invaluable comments on earlier drafts; to Daniela Dover, for conversations about these issues, and comradeship, over many years, as well as incisive comments on earlier drafts; and, most deeply, to Sophie Smith, for illuminating conversations and comments on many drafts and for endless intellectual generosity.