It is, I believe, a minority practice. Yet some number of (male) faculty within the academy say that they observe an “open door” policy in their offices. This means that when a student (or, perhaps, anyone) comes to see the professor, his office door remains open throughout the visit. The generally-understood purpose behind the policy is to protect faculty against false accusations of sexual assault or sexual harassment. The neutral application of the policy to both male and female guests is in place to avoid charges of sex discrimination. In this column, I will consider what impact the policy might have as well as whether its neutral application substantially mitigates the impact.
Not Illegal
Let me start by emphasizing that keeping your office door open while guests visit does not violate laws prohibiting discrimination. Nor would I want to order professors to shut their doors during visits. I would in fact consider it ridiculous for the administration of a college or law school to distribute a memo instructing its faculty to shut the door while meeting with students or others inside their offices. The prospect of such instruction reminds me of a memo I recall reading from another law school in which one faculty member explained her allergy to perfumes and directed colleagues to refrain from wearing perfume or cologne at work. I cannot imagine a surer way to guarantee that one’s colleagues suddenly discover the charms of Obsession than to distribute such a directive. Similarly, any attempt to require faculty to close their doors while hosting students would be very silly and would backfire. My goal here is therefore not to consider whether to force male professors to shut their doors on pain of termination. My objective instead is to examine some of the pros and cons of a decision that an unknown number of male professors make, a decision often motivated by fear.
The Pro Argument
I think I would find it easiest to defend open door policies by channeling a fictional male professor who might adopt such a policy. I realize that the exercise is somewhat artificial, but I prefer to speak strongly in favor of the policy from a particular perspective than to offer a milquetoast defense in which I repeatedly insert the phrase “a professor using this policy might say….” So here goes.
I’ve been a law professor for twelve years. I have tenure, so I know that firing me on the basis of a false accusation would take some work on the administration’s part. Also, I do my writing, I am pretty well liked by my colleagues, I’ve served on some thankless committees, and students seem to enjoy my classes. I am not just sitting at my desk, waiting for the sky to fall. And yet…
If someone accused me of sexual assault or harassment, I don’t know exactly how I could defend myself. I might say that I did not do it and that I would never do it. I could have friends and/or students say that I never did anything like it to them. But what does that prove? It isn’t as though a rapist has raped everybody, so the fact that I never assaulted Mary doesn’t really demonstrate that I never assaulted Nadia, does it? In fact, the argument seems kind of stupid to me as I articulate it, sort of like someone charged with murder pointing out all of the people he didn’t murder and arguing that he must therefore be innocent. How does a person like me, someone who would never sexually assault or sexually harass anyone, show my “good character for sexual respect”? I suppose I could put on past girlfriends to testify on my behalf but again, none of my past girlfriends really knows what I am capable of inflicting on a student once my office door is closed. That I have been a decent and respectful boyfriend who always made sure to have consent is rather weak as exculpatory evidence. I guess it means that I am not an established sexual predator. Huzzah.
So how does the open door help? It helps because it deters whatever disturbed individual might want to make an accusation against me. That person would see that other faculty and staff and students are constantly walking back and forth in front of my office and can see that I am neither sexually assaulting nor sexually harassing anyone. Just as doctors often bring a nurse or medical assistant with them into the examining room when seeing a patient, keeping my door open is my equivalent safeguard so you don’t invent a story of me assaulting you. My colleagues, staff, and students become my witnesses. With the door closed, anything could have happened, and it will be my word against yours.
Now I know that the women who attend my school are virtually all, if not actually all, completely incapable of bringing a false accusation against anyone. I am not making any assumptions about the women at my school. All I know is that sometimes, people make false accusations, and it seems that when the false accusations are of sexual assault or sexual harassment, the complainant is likely to be female and the accused is likely to be male. So the logical policy is to keep my door open when women visit me. But treating my female guests differently from my male guests would be insulting, especially when I do not actually suspect any of my students of making false accusations. So I just have an across-the-board open door policy. Anyone wants to visit, my door opens. Same for men, same for women. Problem solved.
Cons
The first con is that the problem is not solved. If someone is going to invent a story of sexual assault or harassment, she can lie about whether the door was open or closed too. She can wait for a low-traffic time of day when almost no one walks by the professor’s office. She can then visit at that time and tell people later that the professor asked her to close the door and then assaulted her. It is hard to imagine that any liar exists who would be willing, on the one hand, to state falsely that a particular professor assaulted her, but would be unwilling, on the other hand, to say that the door was closed when it was in fact open. No one draws the line there. Why is this argument a “con” of an open door policy? Because when we evaluate whether it is legitimate to employ a particular approach, it is appropriate to consider whether the approach even works. In a case in which the U.S. Supreme Court evaluated sobriety checkpoints (at which everyone must stop and submit to observation and answer some questions) under the Fourth Amendment right against unreasonable seizures, Justice Stevens, in Michigan Dept. of State Police v. Sitz said (in a dissenting opinion, to be sure) that part of the constitutional analysis ought to have included an evaluation of whether the sobriety checkpoint is even effective. If it is not effective, then the invasion of liberty is not justified. Costly measures, in other words, are indefensible if they do not actually advance the important interest at which they are aimed.
Still, it does seem likely that a closed door eliminates the possibility of witnesses in a way that an open door does not. With an open door, people could remember walking by the professor’s office at the relevant time and seeing and hearing nothing improper. With a closed door, on the other hand, there is more room for people to misunderstand what they might have heard, to hear nothing but only because the door is closed, and to be unable to say that nothing untoward was happening inside the office at the appointed time. And even if the open door does little to alter the odds of a false accusation, it increases the comfort of the professor. Like a lucky shirt, the open door may make the professor feel calmer and less frightened of a young woman who might say that he touched her or interacted with her in a discriminatory fashion. If the open door policy is superstitious, so what? There is value in feeling safe, however illusory the perception of safety.
Costs
If a professor feels safer and may in fact be safer from false accusations because of an open door policy, then why object to it? One answer is that the policy has expressive content. It communicates to all who know of it that the professor in the office distrusts female visitors and expects them to harbor in their midst some who would invent a charge of sexual assault or harassment. Subjecting both men and women to the policy does mitigate the harm somewhat: each visitor experiences precisely the same open door during their visit. But if people know the professor’s motive, then the facially neutral application of the policy leaves the insult mostly intact. Consider an example to illustrate the point.
Imagine that a man goes to visit a female doctor to address his ailment. During the office part of the visit, when the man is clothed, the doctor holds a can of pepper spray in her hand and aims it at her patient. Alarmed, the patient asks his doctor what is happening. She smiles and tells him not to worry. Statistically, men are more likely to physically assault another person (male or female) than women are. The doctor does not expect this particular patient to attack her, but she feels one cannot be too careful. She has aimed the full can of pepper spray at the patient’s face to enable her to feel safe with him in the office. He objects that she is discriminating against her male patients by treating them differently. She replies that his point is a good one and vows to aim a can of pepper spray at all of her patients from now on, regardless of their sex.
The male patient would probably still be upset about his doctor’s policy, notwithstanding its extension to women. If she goes on to aim the pepper spray at women as well, it will only be window dressing on a policy motivated by anti-male stereotypes. Stereotypes can have some truth, of course, but people object to them nonetheless because they evaluate individuals on the basis of the categories to which those individuals belong. Even though women are more likely to be nurses than are men, a female doctor standing with a male nurse might still feel slighted by an approaching patient just assuming that she is the nurse and that he is the doctor. For the same reason, men might take offense at the female doctor who aims pepper spray at all patients’ faces because she does so on the assumption that men are dangerous people against whom pepper spray may be the best defense.
How offensive is it to women when men have an open door policy? I don’t know. Maybe women don’t care that much about it, particularly if they get used to it over time. Perhaps men with the policy forget about the reason for it as well so that they simply think of an open door as part of what happens when they host people in their offices. That is an argument for extending the policy to men, even though the motive remains the same. If it applies to everyone, it is easier for everyone to forget its initial purpose.
Yet the reason might now and then come up, with women correspondingly feeling insulted for being classified as treacherous and dishonest. Such a stereotype, moreover, is all too consistent with the long-held view of women who report a rape as unworthy of belief, stigmatized as liars by figures like 17th Century English Chief Justice Matthew Hale who counseled that rape is a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.” And many features of rape trials manifested similar distrust, including a cautionary jury instruction expressing Hale’s sentiment. In light of this history and the continuing challenge rape victims face in persuading police and others of what happened to them, an open door could feel very much like a poster that reads “I don’t believe her either.”
Expression on the Other Side
Some of those who support the open door policy—or equivalent measures to secure witnesses to their innocence—have a different reason for doing so. They may not be especially afraid of female students accusing them of misconduct in their office. They instead have concerns about what they regard as a recent tsunami of allegations broadly falling into the category of Title IX. From one perspective, the enforcement of Title IX within universities has helped support women students’ safety against predatory male behavior that includes sexual harassment, rape, and assault and battery. From another perspective, Title IX enforcement has ushered in an era of presumptive guilt based on multiple hearsay, the magnification of trivial and awkward flirting into actionable misbehavior, and an arguable lack of Due Process for the accused whose academic future may be in jeopardy. A professor who holds this perspective may use an open door policy as a way of protesting injustice. At a time when it is dangerous to be a male student or professor at a university, by the protester’s lights, the open door says “see, I’m not sexually assaulting anybody; the door is open for all who wish to check.” The open door policy thus acts as a form of expression, though the point is not to communicate distrust of female visitors. It is to convey opposition to the way in which the system manages factual disputes over accusations of sex-related wrongdoing. The administration rather than the students would be the intended audience.
What, then, do I propose? As I said earlier, I don’t think it is appropriate to force people to close their office doors. If they want to keep them open and they do so for all guests, then I would leave them alone. My goal here has been to offer information to those considering an open door policy. It has some advantages, including the sense of security that it might give to some male faculty as well as the expressive message that the law governing male-on-female misconduct is unfair to men. But such policies carry liabilities as well. They appear to express a sentiment that may be all too familiar to women, the view that any woman could make up a sexual assault or harassment story at any time. To the extent that men wish to avoid lending their voices to that message, they may want to consider carefully whether an open door policy is truly worthwhile.