E-mail message of 26 December 2004 from Judith Butler.

Dear Peggy and Geoff,

Please forgive me for not responding directly to Geoffrey, but I do not appear to have his email address. I am writing to let you know what I know at this time about opposition to the faculty student code of conduct, passed the year before last by the University of California system-wide senate, and implemented during this last academic year against a few faculty members (as far as I know). At the time that this code of conduct was proposed, several of us at Berkeley wrote a strong opposition to the policy because it struck us as "overbroad" in the legal sense and because it threatened to punish faculty who engaged in consensual intimate relations with other adults. Some of us thought that current sexual harassment policy sufficed to guard against potential situations of exploitation when, for instance, a hostile working environment made it difficult for a student to complete his or her work or when a bribe or "quid pro quo" agreement threatened to collapse personal and professional relations altogether. Clearly, the University of California has a strong strong sexual harassment policy, and those relations in which a student's educational career was disrupted through threats or professional disenfranchisement can be processed through those existing procedures. I will attach here a copy of the argument that the Berkeley faculty made at length. It is useful to know that the Berkeley Senate voted against the current Faculty-Student code of conduct, the one under which sanctions were applied against the UC Irvine professor to which you allude: so did the University of California at Santa Cruz and the University of California at Davis. These three northern campuses were outvoted at the system-wide meeting, however, and my understanding is that some faculty from UCLA were most adamant in their defense of the existing policy.

Now there are at least two instances I know of where this policy has been either invoked or applied, and both of them made clear that the policy is internally flawed to such a degree that it should be revoked as soon as possible. Not only was a faculty-student relationship, consensual in nature, construed as if it were sexual harassment, but much stronger punishments were applied to these cases (or threatened) than are generally applied to sexual harassment cases. Indeed, The way in which this code can be revoked is through the faculty senate system, which means that some faculty from a few UC campuses must propose a revocation or amendment and it must be reviewed at the systemwide level.  In the end, the systemwide senate has to vote. I am a member of the UC Humanities Advisory Board which includes all the Humanities Deans from the UC campuses and three at-large members. I am one of the latter. At that meeting, David Goldberg (from Irvine) and I raised the issue of whether this policy was not only internally flawed, but now manifestly unfair in the way it was interpreted and applied, leaving room for draconian punishments for participating in consensual intimate relations. The fact that the revocation of tenure was even considered at UC Irvine is possible only because the current policy does not stipulate a punishment, thus leaving it open for faculty members on grievance committees to apply exceedingly unfair punishments, including the cessation of employment. It is my belief that now that we have seen that this kind of punishment is opened up by the broad language of the faculty student code, it should be possible to garner a fair amount of faculty sympathy for reconsidering the code itself. At the meeting in Oakland of the Humanities Deans, there was an expression of outrage against the policy, and there was no Dean who spoke in favor of it. Indeed, its implications had not been fully grasped by some. Because this is a faculty code change instituted and maintained by the system of faculty governance at UC, the Dean's are obligated to follow this policy, although they expressed their willingness to oppose it.  Dean Ralph Hexter at UC Berkeley was particularly strong in his opposition to the policy.

I've been approached by David Theo Goldberg, the current director of the Humanities Research Institute, and Karen Lawrence, the Dean of Humanities at Irvine, to ask whether an initiative to review or revoke the new policy is in the works. I hope at some point to be part of an effort to petition faculty senates to review and revoke the policy which is both ambiguous in specifying the "wrong" done by such relations and leaves itself open to sanctioning draconian punishments. There are several UC Irvine faculty members and administrators who will lend their voices to this effort, and we should probably have some indication of how strong a movement this can be within the next six months.

If it is your wish to know whether a strong opposition exists to this code, then it is probably helpful to know that over 200 faculty signed petitions against it the year before last. I believe that if we are able to give some rendition of the latest application of the code in Irvine, we will be able to point out the manifest incoherence and unfairness of the policy.  Perhaps it would make sense for me to apprise you of the progress of this initiative, and for you to be in touch with David Theo Goldberg as well in order to ascertain the kind of support that exists on the Irvine campus in particular for a reconsideration and revocation of the policy. Unfortunately, the policy is instituted at the systemwide level, so it may be that the Irvine faculty senate will oppose it, but that the systemwide senate will uphold it. There is, of course, always the question of whether individual campuses will refuse to implement the policy. My guess is that this option, which involves a kind of civil disobedience, will become more widely discussed once we find out whether we can now be successful in persuading the senate to revoke the policy.

I hope that this helps in some way to answer your question. Please let me know if I can be of further help now or down the line.