Dartmouth Basketball Union Vote Leads to Questions About Employee-Student Relationships 

It’s official, the Dartmouth Men’s Basketball Players have voted to unionize, 13-2, joining the Service Employees International Union Local 560 Chapter.¹ As a union, the players will have bargaining power to force Dartmouth University to negotiate with them about their compensation including health insurance benefits² and possibly television and streaming rights for their games. Dartmouth University rejected the decision, “Classifying these students as employees simply because they play basketball is as unprecedented as it is inaccurate. We, therefore, do not believe unionization is appropriate.”³ If the National Labor Relations Board’s decision is upheld in federal court on appeal, then the NLRB’s ruling would be precedent for private universities causing widespread unexpected changes.

One of those unexpected changes is sex with students. Many private universities have complete bans on faculty having consensual sexual or romantic relationships with students including Harvard University, Yale University, Princeton University, Brown University, University of Pennsylvania, Villanova University, and Dartmouth University.⁴ Athletes would escape this ban, because they would not be classified as a faculty member but a university staff employee. However, Syracuse University has a special ban, because it extends to employees.

On August 27, 2018, the Chancellor’s Executive Team at Syracuse University announced their ban, “Syracuse University Enhances Protections for Undergraduate Students: Prohibits Sexual or Romantic Relationships with Employees.”⁵ LaVonda Reed, associate provost for faculty affairs and professor of law, said, “These changes are the result of a lot of hard work and excellent collaboration between many members of our campus community, particularly University senators. I am grateful to Chancellor Syverud for his leadership, my colleagues in the senate and so many others for taking appropriate action to enhance protection of our students.”⁶

The University statement articulates the reasoning behind this policy, “The purpose of those policies is to reduce harassment, abuses of power, and conflicts of interest that can often arise in relationships between individuals who are in different positions of power within an institution.”⁷ The key to the policy is to prevent sexual relationships with different positions of power. If Syracuse basketball players are employees, represent the university in an official capacity, and are paid in scholarships, room and board, and money to induce the players to play for the University’s sports team, then these employees would be in a completely different position of power than a regular student. Even though Syracuse University’s ban attempts to solve a power dynamics problem, there could be financial and legal reasons for this policy.

The reasoning for Syracuse University’s ban may have also included limiting their risk of vicarious liability to potential lawsuits. The general rule is that purely personal activities of an employee such as sex are outside the scope of the employee’s job duties and cannot give rise to vicarious liability on the part of the employer.⁸ However, employers can be vicariously liable for negligent hiring and retention and failed to prevent it.⁹

For example, if the university knows that a potential employee (high school player) was arrested for sexual assault and the university knew or reasonably should have known that the potential employee would impose an unreasonable risk of harm to students at their university and the university failed to prevent the activity and continued to hire/retain the employee so that the university could win basketball or football games, then the university may be liable to negligent hiring/retention claims.¹⁰ A complete ban of consensual relationships between employees and students reduces the risk of vicarious liability which can also lower a university’s premiums paid to insurance companies who may be tasked with paying out legal claims. Given Syracuse’s ban, the Syracuse Men’s Basketball Players may not want to quickly follow the Dartmouth Men’s Basketball Players decision to unionize.           

Currently, Dartmouth University has a Consensual Relationships Policy which defines an Employee as, “anyone employed by the College as a faculty member or staff member, including a post-doctoral fellow or student employee, and any holder of a College appointment”¹¹ and a Staff Member, “is any person who is not an Instructor but who has authority over students, including deans of any rank, athletic coaches, advisors, and directors of student organizations, and others who advise, mentor, or evaluate students.”¹² So, can Dartmouth Men’s Basketball Players have sex with students today? The answer is yes, but it depends.

The issue turns on whether the players have any authoritative power over another student or if the players are responsible for advising, mentoring, or evaluating other students. The policy continues, “Even where the relationship is consensual, however, the conduct of a romantic or sexual relationship between a Staff member and a student he or she supervises or advises may raise issues of conflict of interest or abuse of authority, with potential to adversely impact not only the student involved in the relationship but other students as well. Such situations may diminish confidence in the College and place it in a legally vulnerable position.”¹³

Here, the reasoning behind Dartmouth’s policy echoes Syracuse’s ban, because Dartmouth is attempting to prevent similar abuses of power and conflicts of interest that employees can have over students. And a further word of caution from Dartmouth’s policy, “Even where particular situations are not prohibited by this policy, Staff members should avoid relationships that would cause observers to question the Staff Member’s professional judgment.”

1. See Amanda Christovich’s article, “History in Hanover: Dartmouth Men’s Basketball Players Vote to Unionize” https://frontofficesports.com/history-in-hanover-dartmouth-mens-basketball-players-vote-to-unionize ↩︎
2. Id. ↩︎
3. Id. ↩︎
4. Naomi Elegant, “When Penn introduced faculty-student relations ban, most Ivies had already done the same.” https://www.thedp.com/article/2018/04/sexual-relations-assault-student-faculty-policy-ban-upenn-ivy-league-penn-philadelphia-education ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Troy Broussard, “Employer Liability Arising Out of Student/Faculty Sexual Misconduct,” Allen & Gooch Blog, May 8, 2019, see https://www.allengooch.com/employer-liability-arising-out-of-student-faculty-sexual-misconduct ↩︎
9. Id. ↩︎
10. Id. For more on the reality of these cases, see Jane Doe’s $800,000.00 settlement against the University of Oregon. ↩︎
11. Consensual Relationships Policy, “Supervisor-Employee Consensual Relationships”(1), See https://sexual-respect.dartmouth.edu/policy/consensual-relationships-policy ↩︎
12. Consensual Relationships Policy, “Instructor-Student and Staff-Student Consensual Relationships”(1) https://sexual-respect.dartmouth.edu/policy/consensual-relationships-policy ↩︎
13. Consensual Relationships Policy, “Instructor-Student and Staff-Student Consensual Relationships”(2) https://sexual-respect.dartmouth.edu/policy/consensual-relationships-policy ↩︎