A lawsuit filed by a California teacher against the school district where she works puts a new spin on an old problem. As the National School Boards Association reported, the suit, filed last week by Amy Sulkis in the Los Angeles Superior Court, alleges that her school district employer failed to adequately protect her from cyberbullying and online sexual harassment by students who, among other things, created a fake Twitter account in her name and sent out inappropriate Tweets. Legal scholarship has long recognized that although liability for student-on-student and teacher-on-student harassment has led to successful lawsuits against public schools, courts have been less inclined to extend protections to teachers who allege they are harassed by students. Sulkis’s lawsuit shows how these concerns can be compounded by the use of online social media such as Twitter, and creates a new wrinkle in the question of what schools are required to do when teachers complain about online harassment by students.
The Facts
According to CBS Los Angeles, Sulkis’s lawsuit reportedly alleges that the 16-year teaching veteran had an unblemished record and relationship with students until, in 2013, students created a false Twitter account in her name and sent out “disparaging and sexually suggestive statements” about her. A student who admitted to creating the account was initially given a two-day suspension, but after negotiations with the administration it was reduced to one day. Subsequently, students posted inappropriate and derogatory posts about Sulkis, but when Sulkis reported those posts to the administration she was told there was no available recourse. According to Sulkis, although she and her attorney asked for school-wide training for students on proper use of social media, that request was denied. A later post by a student allegedly included an image of Sulkis, an offensive caption, and a link to a pornographic Twitter page. Sulkis alleged that she was forced to take time off work to deal with the emotional distress and because she did not feel safe in her work environment. The lawsuit followed shortly thereafter.
The Law
The law in this area is unsettled, and it is unclear for what, if any, responses school district could be found liable with respect to student-on-teacher online harassment, especially where, as here, the teacher alleges that the harassment is of a sexual nature. Although some courts (like this one and this one) have recognized that student-on-teacher sexual harassment can lead to liability by the teacher’s school district employer under Title IX (which prohibits sexual harassment) and Title VII (which prohibits sexual harassment in employment), it is unclear how the standards recognized would apply in the off-campus, online context. On the one hand, federal appellate court cases from the Third Circuit have held explicitly that schools have limited authority to discipline students for off-campus online conduct, even when it involves creating false and disparaging social media profiles for staff members and spreading those profiles to the school community. You can read our previous write up of those cases here. On the other hand, at least in the context of student-on-student off-campus, online harassment based on certain protected characteristics and that rises to the level of a hostile environment, Department of Education Office for Civil Rights guidance requires that schools provide other interventions, including training for the larger school community, to ensure that harassment does not recur.
Takeaways for School Leaders
It is unclear how these standards will play out in a lawsuit by a teacher alleging that a student’s online harassment is creating a hostile environment. But the proliferation of social media activity by students mixed with the protections many courts have extended to students off-campus, online misconduct, means that schools should expect to receive more and more complaints from teachers and other staff about student harassment online. Although school leaders should always take such complaints seriously, they must work closely with legal counsel to understand what, if any, responses are required if and when a teacher or staff member complaint of this nature arises.
