The Amy Hestir Student Protection Act, which Missouri Governor Jay Nixon signed into law last summer, requires school boards to adopt social networking policies. However, a judge has issued an injunction, because this provision of the law may be unconstitutional.
Hickman Mills’ Board of Education — like many school boards in the state — is now in a quandary. How to comply with the law and not violate First Amendment rights to free speech?
Tuesday evening of this week, the Hickman Mills school board policy committee struggled with this issue when they met to review policy number 3090. This draft addresses staff use of social networking sites and electronic media.
Board Member Darrell Curls, who called the meeting to order at 6:02 p.m., had voiced concerns about the policy possibly violating First Amendment rights when the committee reviewed a draft in early August. The committee decided to request guidance from the Missouri School Boards’ Association (MSBA), which supplies model policies for members.
On August 28, The Amy Hestir Student Protection Act was to become law. Its intent: to prevent sexual abuse of children by public school employees. One provision, however, has been controversial. It requires districts to adopt policies regarding use of social networking sites and electronic media. According to the law, these policies must forbid teachers communicating online with students under age 18.
On August 24, a circuit court judge issued a temporary injunction preventing the law from taking effect until the court has time to decide whether it violates state and federal free speech rights.
One model policy addressing school staff relationships with students that the MSBA shares with members is known as “GBH.” Among other provisions, it prohibits knowingly granting “students access to any portion of the members’ personal social networking website or webpage that is not accessible to the general public.”
Many teachers have concerns that such provisions may violate free-speech rights, which is why the Missouri State Teachers Association (MSTA) sued the state of Missouri. After Cole County Circuit Court Judge Jon E. Beetem considered their arguments, he wrote in his injunction that the MSTA had a “substantial likelihood” of winning the case.
“The Court finds that the statute would have a chilling effect on speech,” Beetem wrote, adding that the breadth of the prohibition of speech was “staggering.”
Here is the current draft policy the Hickman Mills school board is considering:
Staff members may not:
- Knowingly allow students access to the staff member’s personal social networking website or webpage that discusses or portrays sex, nudity, alcohol or drug use or other behaviors associated with the staff member’s private life that would be inappropriate to discuss with a student at school.
- Knowingly grant students access to any portion of the member’s personal social networking website or webpage that is not accessible to the general public.
- Post information about identifiable students on a personal website or webpage on a social networking site without the permission of a supervisor.
Staff members may not communicate with students, including former students under the age of eighteen (18), via electronic media unless it is approved in advance in writing by the district and the student’s parent regardless of whether created or maintained by the employee or students. The phrase “electronic media” includes social networks, texts and email.
Staff members who engage in any of the above behaviors or in any other conduct that intrudes on a student’s physical or emotional boundaries without a valid educational or health purpose will be disciplined, up to and including termination.
Under the original version of the state’s child protection act, Hickman Mills and other districts had until January 1, 2012, to adopt a policy if they didn’t already have one. However, after Governor Nixon received the court’s injunction, he asked the legislature to repeal the controversial provision during a special session that started last week. The state Senate did not repeal this provision but has come up with a new version, extending the deadline to March of next year.
In addition to extending the deadline, the new version does away with the requirement for school boards to forbid electronic communications. It simply requires districts to adopt policies and leaves the language up to them.
Although the teachers association that sued the state drafted the new version, its representatives say they do not intend to drop their legal challenge, even if the legislature adopts the revision.
The MSTA’s statement about this issue on their Facebook page reads: “Given the attention this bill received language was going to be introduced to fix the issues. While we would have preferred to wait until January and give our members time to help with the language, this moved too quickly through the special session for us to do that. Additionally, many districts were going to create some kind of a policy if they did not already have one. Because of this process we are now aware of a few districts that have policies that are too restrictive. We intend to work with individual districts and teachers to make sure that all district policies continue to give teachers their first amendment rights, while at the same time allowing for proper use of technology.
“It is important to remember that we aren’t stopping our lawsuit on this matter because no one knows what will happen next. Also, we can still address this specific issue at MSTA’s Assembly of Delegates in November. It is not too late and the process is just starting.”
The MSTA declined to identify individual districts with too-restrictive policies regarding freedom of speech for teachers.
Hickman Mills and many other districts have much to consider in adopting their new policies.
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