Teachers, parents, and coaches often use Facebook, blogs, and Twitter to communicate with teenagers about homework, school activities, sports, clubs, and the like. And there’s a good reason for that: Today’s teenagers commonly frequent social networking sites, and unlike fliers and photocopies, online communications are essentially free to create and send, and can easily and rapidly be addressed and sent to large sets of individuals.
Yet, there is also a dark side to some adults’ use of social networking sites to contact teens: Such sites can be used for illegal sexual predation. Thus, parents are sometimes alarmed when they find out that their children talk to other adults online—even if those adults are their children’s teachers.
Accordingly, in Missouri, the state legislature recently attempted to block contact between students under age 18 and their teachers (or former teachers) via Facebook or any other social networking site that provides “exclusive” access—that is, a private, one-on-one means of communication.
This ban on teacher-student communications was part of a larger law that was meant to protect school-aged children from sexual predators at school. However, civil liberties groups and educators pointed out that the provision of the law relating to social networking sites was so broadly worded, it would stop teachers from using the Internet to contact any children at all via such sites—even their own!
Educators challenged the broad law, and at the end of August, a Missouri court granted a temporary injunction against the law’s enforcement, insofar as it affected teacher-student communications. The judge reasoned that the ban would chill free speech, and thus would likely violate the First Amendment.
In this column, I will argue that the judge was right to grant an injunction; and I will explain why the Missouri legislature’s new proposals on this topic, issued last week, are a welcome change, but still may not strike the right balance.
The Missouri Law and the Lawsuit: The Facts Thus Far
In August, the Missouri legislature enacted the Amy Hestir Student Protection Act. The new law strengthens rules against schools that fail to report sexual abuse of students by employees, but also imposes restrictions on use of social networking between teachers and students. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian. This provision is less controversial—if a teacher sets up a class page or site, parents and guardians must also have access. A more controversial provision relates to non-work related social networking. The Act states, among other provisions, that teachers may not contact their current or former students via non-work electronic communications, such as Facebook posts, that offer “exclusive” access—meaning that messages are not publicly visible, and thus, truly private communications between individuals can occur.
The law was sponsored by State Senator Jane Cunningham, a Republican from the St. Louis suburbs. Cunningham argued that all she wanted to do was to limit “hidden communications” between teachers and students, which could not be monitored readily by parents or school administrators. To gain support, Cunningham focused on the fact that in certain instances, teachers may have sexually exploited children who were under their supervision—and that some of the communications, in those instances, involved social networking sites.
The Missouri State Teachers’ Association (MSTA) then filed suit in Cole County Circuit Court, challenging the portion of the Act that prohibits teachers from setting up, maintaining, or using a non-work-related Internet site that allows “exclusive access with a current or former student.” Then, MSTA successfully sought a preliminary injunction to bar the state from enforcing that provision, until the court could make a decision regarding the merits of MSTA’s claims that the provision violates both the U.S. and Missouri Constitutions’ free speech clauses.
The Court’s Decision to Impose a Preliminary Injunction
The court’s preliminary injunction prohibited the State of Missouri from enforcing the provision of the law, which effectively banned teachers and students from being Facebook “friends” and communicating with one another via personal Facebook pages.
The court noted that the breadth of the law’s coverage was “staggering,” and pointed out that social networking is utilized extensively by educators. Accordingly, the court concluded that the law would have a significant chilling effect on speech. It also concluded that, given the free speech rights implicated by the case, this chilling effect would be sufficiently immediate, and the injury it would cause would be likely irreparable, to issue a temporary injunction against the law’s enforcement.
In support of its ruling, the court made several findings. First, it found that the ban at issue implicates teachers’ free speech rights, as protected under the United States and Missouri constitutions, as it bans completely a form of communication between educators and students.
Second, the court noted that even assuming that the ban put in place by the provision is content-neutral (that is, it does not target a specific type of speech and also constitutes a reasonable “time, place and manner” restriction on speech, the scope of the restriction was “staggering”—because, today, social networking is often the primary method of communication between teachers and students; and because the provision prohibits teachers from communicating with a large group of children—including even their own children—using these types of sites.
The court concluded that the chilling effect of the provision—meaning it would deter freedom of expression—constituted a sufficiently immediate and irreparable harm and issued an injunction. In addition, the court concluded that MSTA had demonstrated a substantial likelihood of success on the merits of its claim.
And, finally, the court found that the public interest was best served by delaying any implementation of the provision until trial occurred, and a ruling on the merits of the case was issued.
Is Missouri’s Revised Law Superior to Its Predecessor?
Fortunately, Missouri Governor Jay Nixon has called for the state legislature to repeal the provisions of the law concerning student-teacher communications. And, in light of the court’s ruling and Nixon’s statement, the legislature—as of September 8—began considering a new version of the law.
This new version would abandon the so-called Facebook ban, and instead would leave it up to districts to come up with their own policies to “prevent improper communications” between school employees and students, including on electronic media. (The new bill also gives school districts an extended deadline—March 1, 2012, instead of January 1, 2012—by which to adopt the new policies.)
Several education groups in Missouri support the idea of having individual school districts create their own policies—suggesting that the state’s diverse school districts (which range from rural to urban) may need diverse policies.
In contrast, the ACLU would like to see the Missouri legislature or the State Board of Education come up with a statewide policy that passes constitutional muster.
The Missouri School Boards Association currently offers model policies as a starting point for discussion, and many districts already have policies dealing with teacher-student communication, but those policies—if they are incorporated in a statewide policy—need to be reviewed from a stringent First Amendment perspective.
In my view, the ACLU’s statewide approach is the wiser one. Devising a general set of principles that properly balance public policy goals with free speech interests would be a safer path than leaving individual districts to come up with their own models. Having numerous different models for Missouri’s school districts—which number over 500—would likely lead to costly and time-consuming litigation.
Was the Missouri Controversy Simply Much Ado About Nothing?
In the end, did either the original statute, or its proposed modification, truly serve the statute’s stated goal of protecting children? I think the answer is no.
Granted, during hearings on the proposed Missouri legislation, a police officer testified that he had investigated at least four cases where teachers had inappropriate sexual contact with students—and each case involved contacts via text messaging or social media. But banning social-networking communications via Facebook and the like will not stop such misconduct. Teachers attempting to initiate that kind of wrongdoing could still speak to students at school, or via cell phone, texting, or email.
Meanwhile, it is important to remember that social networking can be used by teachers for good, as well as bad: The MSTA reported that it has received numerous stories from teachers who offered crucial support to at-risk students via social media. For instance, in rural Missouri, a player texted his coach when he was considering suicide. The coach invited the student to his home to talk, and was able to get help for him.
In sum, the ban would do little good for the students it is meant to protect, for it could be easily evaded, while possibly harming other students who face a crisis, need a role model, or simply want to talk to a teacher who shares their enthusiasm for a particular subject.
The Best Solution Is For Parents to Teach Their Kids About the Possible Dangers of Social Networking Sites
Sooner or later, students are going to have to learn about the dangers of social networking sites, and to learn how to repel and/or report unwanted advances. It might be a good idea for them to do so before they go off to college or the work world—when they are still living at home, with parents to guide them.
We already have one type of protection for children online. The Children’s Online Privacy Protection Act (COPPA), requires “verifiable” parent consent when sites like Facebook collect personally-identifiable information from children under age 13. (Whether sites vigorously comply with COPPA is a separate issue, but the law exists and if implemented, it would provide one safeguard for children who are accessing the Internet.)
Ultimately, blocking teenagers’ access to social networking sites—or somehow banning them from engaging in certain uses of those sites—is not the best way to keep them safe. It is better for parents and schools to properly educate young students about how to deal with unwanted advances or conduct.
This issue will sure continue to play out nationwide, as social media become increasingly embedded in people’s lives. Just recently, for example, the Dayton, Ohio, public schools set a policy restricting texting and social-media contact between teachers and students, including “friending” on Facebook. The policy sounds reminiscent of Missouri’s, and is likely to meet with the same First Amendment objections, as well as the same policy point: Private student-teacher contact can be very positive when students have suicidal thoughts or other serious problems and feel that they cannot go to their parents.
At this juncture, the Missouri Senate is set to debate the proposed revision to the law—passed last week by the Senate’s Education Committee—that would remove the student-teacher communications provision entirely. Let’s hope that the Missouri legislature, at a minimum, repeals the ban relating to Facebook and similar sites, and starts from scratch.