Districts Complying With New Missouri Law May Be Vulnerable to Lawsuits

Art Credit: 123rf stock image

When members of the Missouri General Assembly revised the Amy Hestir Student Protection Act last fall, they made a decision to not make a decision. Instead, legislators passed that responsibility on to the districts.

“Our concern when Senate Bill 1 came up in special session was that the state legislature was just setting up school districts to be sued instead of the state,” Tony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri, said in a podcast earlier this month. “They’ve required all school districts to do what they couldn’t do, and that is to balance legitimate interest in protecting children with the teachers’ right to communicate freely.”

Each district was required to approve a staff-student online communication policy no later than yesterday, March 1. Teachers and legal experts say existing laws already protect children from illegal online contact with adults, and the new policies may limit teachers’ ability to use technology in the classroom and communicate with students for legitimate purposes outside of class.

Some of those legitimate purposes include doing class assignments online and communicating with students — even teachers’ own children — outside of school. Many teachers interact with young people through church programs, scouting, athletics and music classes, tutoring and for many other reasons.

A circuit judge issued a preliminary injunction, saying the General Assembly’s first version of this bill, which included a statewide policy, was most likely unconstitutional. The Missouri State Teachers Association (MSTA) had sued, claiming the otherwise well-intentioned statute violated school staff members’ First Amendment rights to free speech. The ACLU also sued.

“We were concerned, because it [the original version of the state law] was premised on a distrust of all teachers, and because it was a great limitation on teachers’ speech rights to speak and communicate freely and wasn’t closely tied to any legitimate government purpose,” Rothert said.

After the state directed districts to enact their own policies, the MSTA released a model policy. However, no local school board seems to have adopted it. Most appear to be using modified versions of an alternate model policy issued by the Missouri School Boards’ Association (MSBA).

Having reviewed the MSBA’s model policy, the ACLU legal director said that in his opinion it resembles the state’s original version and may also be unconstitutional.

Most importantly, Rothert said, many new district policies are unclear regarding what is prohibited speech for teachers and what is not.

“Teachers are going to be left to guess, and that’s dangerous in the First Amendment context,” he said, “because when you’re left to guess, and you’re going to get punished if you speak incorrectly, then you’re going to self-censor, and that really chills speech and prevents people from speaking.”

Yet to be decided, according to the ACLU and the MSTA, is whether individual districts can be sued immediately because of their unconstitutional staff-student communication policies or whether it will be necessary to wait until teachers are accused of policy violations.

Whether the ACLU takes action sooner or later remains to be seen. However, one thing is certain, according to Rothert.

“Even though I can uniformly criticize the policies I’ve seen as bad,” he said, “some are worse than others”

At least six of the 16 metropolitan-area school districts are basing their new staff-student communication policies on the model distributed by the MSBA, which Rothert said may be unconstitutional. Those six are:

• Hickman Mills
• Lee’s Summit
• Liberty
• North Kansas City
• Platte County; and
• Raymore-Peculiar.

In addition, the school boards of two local districts — Fort Osage and Park Hill — have not yet enacted new policies and do not plan to vote on this issue until later this month, after the deadline for compliance has passed.

Rothert made his comments in a podcast interview distributed by the MSTA: http://tinyurl.com/6njf78k

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