Lindsey Davis
Associate Editor-in-Chief of Operations
Can a state regulate a public school teacher’s Facebook “friending” powers? In case you missed it a few months back, the Missouri Legislature in July sought to do just this when it passed Senate Bill 54, designated §162.069.4 RSMo. Legislators repealed the bill less than two months later, but as originally written, it held that “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” The bill would have extended to any social networking site, not just Facebook. The purpose: to prevent inappropriate contact, especially sexual misconduct, between students and teachers, according to online commentators. More specifically, the bill would also have required school districts to develop written policies about interactions between students and school district employees that “…include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. 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.”
The bill would have gone into effect Aug. 28, but the Missouri State Teachers Association jumped on a lawsuit against the State and Governor Jay Nixon. On Aug. 26, a Cole County, Missouri, judge issued a preliminary injunction preventing teacher discipline for not complying with the statute. Judge Beetem found the bill a violation of teachers’ First Amendment rights. “Even if a complete ban on certain forms of communication between certain individuals could be construed as content neutral and only a reasonable restriction on ‘time, place, and manner,’ the breadth of the prohibition is staggering. …The Court finds that the statute would have a chilling effect on speech,” Judge Beetem wrote. Given the fundamental right implicated and finding that the plaintiffs had a substantial likelihood of succeeding on the merits, the court found sufficient support for the preliminary injunction. See Missouri State Teachers Ass’n v. Missouri, No.11AC-CC00553 (Mo. Cir., Aug. 26, 2011).
In September, the Missouri legislature voted to repeal the controversial portion of the statute, replacing it instead with only a requirement for public school districts to develop their own policies on the use of electronic media between employees and students. The policies must be developed by March 1. Two Missouri House members (both attorneys) voted against the repeal, stating that local school districts might end up adopting polices that still infringe on free speech, potentially multiplying lawsuits. “We just traded one big unconstitutional ball of wax for 529 little balls of wax,” Republican Jay Barnes of Jefferson City, Missouri, told the Associated Press.
Barnes’ comment is spot on. A blanket repeal would have been best, as requiring individual districts to create their own policies opens the door to unchecked local district control that likely will end up being litigated in the Missouri courts. As a former teacher who has received Facebook friend requests from former students, I understand the ethical ramifications of social networking and online communication between students and teachers. But I also know how useful online communication and emails can be in helping students with homework assignments and college applications past traditional school hours and during summer months. Shouldn’t this be something left to the standards of professionalism as opposed to blatant state control and sweeping First Amendment violations? Stay tuned for what happens with the March 1 deadline for individual school districts.
Washington Journal of Law, Technology & Arts 