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University of Massachusetts Law Review



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While the heightened awareness of sexual predation in the workplace is, in many ways, a welcome development, the new norms currently being promulgated and implemented have already fallen prey to the law of unintended consequences, not to mention the limitations of law itself. Perhaps the most remarkable result of the plethora of prosecutions—especially those taking place on American campuses— is that, despite widespread recognition of their lack of rudimentary due process, so little has been done to correct the failures. Just as cultural attitudes have changed toward politics, entertainment, and literature, so too have perspectives on relationships in corporate boardrooms, university campuses, and common workplaces. Just as uninvited sexual encounters contribute to the growing spate of allegations concerning improprieties both subtle and overt, what might well have begun as a traditional college or office romance—where casual dalliances can and often do lead to marriage—may just as easily turn from serious to sour. In the wide world of the law, meanwhile, the growing phenomena of uncorroborated allegations—especially those that result in suspensions or dismissals—present serious questions of fairness and remedy. In the spheres of public education and employment, everyone with a healthy respect for traditional American values might be justifiably dismayed by the almost total absence of due process. In the private arena, where the concept of due process is much less applicable, there are few viable remedies for the unfairly accused.

In recent years, there have been over 150 law review articles addressing the problem, yet it persists and is growing. Could the circumstance be that such academic analyses go widely unread and unheeded, or is there some other cause for the endemic recalcitrance? This Article will likewise examine the prosecution of sexual harassment in what has come to be called the Me Too Era, not only by analyzing the constitutional application and limitations of due process, the promulgation of Title IX policies4 on campuses and their effect on public students and employees, and the limited remedies available to workers in private entities, but to suggest as well ways by which academics can move their message beyond theory and into pragmatic solutions with greater impact.

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