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Professor's Right to Seek Affair With Student Constitutionally Protected
"Freedom of Association" Includes "Exercising His Right to Freely Associate With Other Persons" Even For Sexual Activities
While this so-called freedom of intimate association - one part of the overall freedom of association protected by the U.S. Constitution - had been applied to marriage, childbirth, raising and educating children, and cohabitation with one's relatives, this may be the first time that this right has been held to apply to attempts to initiate sexual intercourse, especially when it occurs between a professor and a student at a college.
Here's how federal Judge Amos L. Mazzant of the Eastern District of Texas, in a case entitled Wilkerson v. University of North Texas, recently analyzed the situation regarding a professor's alleged inappropriate advances to a female student.
"Plaintiff alleges that he was retaliated against and denied due process as a result of exercising his right to freely associate with other persons.
'The [Supreme] Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State."
These relationships are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.
These types of associations that have been protected are typically couched in terms of family, such as marriage, childbirth, raising and educating children, and cohabitation with one's relatives. Plaintiff was fired for a brief consensual relationship. Based on Plaintiff's allegations, the Court finds Plaintiff has alleged sufficient facts to support a claim against [several university employees] for infringement of his freedom of association."
Interestingly, the court also held that the professor could sue several university employees and faculty members - including the Provost and Vice President for Academic Affairs, the Dean of Arts and Sciences, and the Department Chair of Philosophy and Religion Studies under various legal theories for their role in investigating the allegations against him, and for participating in the process which led to his termination.
So it appears that the efforts of one person to engage in sexual activity with another person may enjoy some limited constitutional protection, and that those who participate in a university proceeding to punish a male professor for seeking to engage in such activities with a female student may themselves be subject to legal action and financial liability in some situations, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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