By Marisa Lincoln, Senior Associate
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Shortly after this scandal hit the news, Assemblywoman Kristin Olsen, R-Modesto proposed Assembly Bill 1861. AB 1861 would have made it a felony for any teacher or employee of a public or private elementary or secondary school to engage in a sexual relationship or inappropriate communication, including sexting or lewd emails, with a pupil of any age. Specifically, the bill defined "inappropriate communication" as "any communication by a school teacher or employee to a pupil, regardless of who initiated the communication, that is sexual, lewd or lascivious in nature." The bill's author said that AB 1861 would be "a strong deterrent against a teacher or school employee from violating the trust of parents and abusing their influence over students."
AB 1861 was killed on April 17, 2012 by the Public Safety Committee. Opponents of the bill, which included the California Federation of Teachers and the California Public Defenders Association, noted that, under existing law, there are a number of legal protections for minors with regard to those who make inappropriate sexual contact with them. In addition, there was concern that this bill would impose illegal restrictions on the relationships and communications between consenting adults. Such restrictions could arguably impose upon an individual's right of free speech and to freely assemble, as well as an individual's right to privacy. These rights are all fundamental rights protected by the U.S. Constitution.
In light of the above, educational institutions should take an active part in educating their employees about appropriate communications and relationships between employees and students, even those students who are over 18 years of age. Despite the fact that an employee's relationship with an adult student may not lead to criminal penalties, such relationship may possibly be a basis for employee discipline. We also encourage educational institutions to consider adopting social media policies to address employee communications with students on Facebook and other social networking sites to help discourage inappropriate communications on these forums.
