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Aug 03 2011

Missouri Ban on Student-Teacher Facebook Connection Will Not Survive First Amendment Challenge

OK so who thought this was a good idea? Missouri lawmakers passed a law that contains this provision:

No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian.

No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student.

This language was thrown onto a lengthy bill designed to prevent a teacher who had been disciplined for inappropriate sexual contact with a child from being transferred to another school district, a practice known at the NY Board of Ed as “pass the lemon.” The law is called “The Amy Hestir Student Protection Act” and is named after Amy Hestir who was sexually abused repeatedly as a student by a middle school teacher who worked in several Missouri school districts. This law proves that WE SHOULD NEVER PASS ANY LAW NAMED AFTER ANYBODY. These laws are always good intentioned but they are borne of outrage and hysteria over a singular incident that may or may not represent a large scale problem. Then once you tag a victim’s name on it legislators lose whatever spine they may have still had and cannot vote against it. Knowing that no legislator would want to be campaigned against as having ‘voted against protecting the Amy Hestirs or Caylee Anthonys of the world” other legislators then try and tack on other bad ideas on to the bill.

This law would prevent a teacher from friending a FORMER student on Facebook. It would stop teachers from using social media to interact with their current students in ways that are perfectly appropriate and beneficial to the learning experience. For crying out loud this law would prevent a student from emailing a teacher a question about an assignment. Sen Jane Cunningham who sponsored the bill stated in support of its passage:

We are by no means trying to stop communication, just make it appropriate and make it available to those who should be seeing it. Exclusive communication is a pathway into the sexual misconduct.

Many things are pathways to sexual misconduct. But what is naive is to think that a teacher who would be willing to engage in sexual misconduct with a student will not communicate with the child in violation of this act. So they would be willing to commit statutory rape, but risking an illegal email would be too chancy and give them second thoughts? The only teachers who will be stopped from communicating with their students are teachers who have no interest in committing crimes against their students. We call them sexual PREDATORS for a reason. They tend to be obsessed and driven to engage in this conduct. They know they are breaking the law, putting their lives and freedom on the line yet they do so because they are predators and are driven to do it. So the impact this law will have on the conduct it tries to prevent will be minimal. Whereas stopping the “passing the lemon” tradition would have had a good effect as it gets inappropriate teachers out of the system.

Where was legislative counsel during the drafting of this bill? This law will not pass the inevitable First Amendment challenge that will come from the teacher’s union (if there’s still one in Missouri) or the ACLU. Tony Rothert, the legal director for the ACLU of Eastern Missouri was quoted in the Huffington Post as saying

“I think that reasonable teachers are going to be afraid to use Facebook or Twitter at all, or anything that allows for requiring mutual consent before you can see what’s posted,” Rothert said. He added that the bill “silences a lot more speech than would be necessary to attack the problem.”

That’s the first shot across the bow and its a good one. Laws that limit speech are usually subject to the “strict scrutiny” test in Federal law. To pass strict scrutiny, the law or policy must satisfy three tests: (1) It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, let’s assume that protecting students from sexual assault by teachers is a compelling governmental interest, so that step 1 is satisfied.(2) The law or policy must be narrowly tailored to achieve that goal or interest. If the government action covers too much or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. This law will not pass this portion of the test as it is overbroad. (3)The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. This element is usually closely tied to number 2 and similarly, Amy’s law will not pass this part of strict scrutiny analysis. There are other ways that do not restrict speech to limit the exposure to teacher-children sexual liaisons. Like educating both students and teachers about appropriate conduct and behavior in school and out and online.

The law paints all teacher-student communication with a broad brush as if there is no benefit to a teacher being connected to social media or communicating directly with a student. All studies show that more and more, kids are getting their information from the internet, their news, their social interactions are largely coming from online sources. The vast majority of their communication takes place via text or email. Limiting teacher’s access to these arenas will only make them seem like dinosaurs or worse, like criminals. It will limit what teachers can do do make their topics and themselves more relevant to students. This law is a bad idea and I think the courts will see it that way as well.

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