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If it’s July 1, it must be … time to protect teachers’ constitutional rights again

Missouri’s new Amy Hestir Student Protection Act requires public school districts to tell prospective employers whether a teacher has been accused of sexually abusing a student., even if the allegation was not true. And that requirement may be unconstitutional. Illustration Credit: 123rf stock image

Today is July 1, the deadline for public school districts in Missouri to comply with a particular requirement of the state’s new Amy Hestir Student Protection Act. And — despite the fact that it’s usually a good thing for districts to comply with the law — there’s a problem.

Pretend you’re a high school teacher, and a teenager decides to make fun of you. He posts on his Facebook page that you “hit on students.” Others start gossiping, and word gets back to the principal that you have been accused of sexual misconduct. Under the terms of Missouri’s new student protection act, the principal is not allowed to investigate first to determine whether the allegations are true. The law requires her to report you to the Children’s Division first and ask questions later. Rumors continue to spread, and the principal pressures you to resign. Angry at being unjustly accused, you may do just that. But you do need a job, so you apply for an opening with another district. That district calls your former employer’s human resources department to obtain a reference for you …

… and this is where it gets dicey. By this time, your name has been cleared. An investigator from the state Children’s Division has determined you are not guilty. The student has confessed that it was a case of adolescent humor gone awry. His mother made him apologize to you in person and in writing. You are a good teacher, but …

According to the Amy Hestir Student Protection Act, your former employer is required to tell anyone who asks about your job history that you have been accused of sexual misconduct.

That law also requires school boards to approve policies regarding such references no later than today. In order to comply, most districts in the metro area have adapted a model policy provided by the Missouri School Boards Association (MSBA).

Here’s how the MSBA describes the problem:

MSBA is particularly disturbed by the obligation … because it appears the district may be required to disclose to potential employers allegations that have not been substantiated. This is an area of huge liability, not just for defamation, but also for a constitutional claim in state or federal court that the district violated the employee’s liberty interest in his or her reputation without first providing appropriate due process. However, if the district does not disclose the information as required under the statute, the district becomes legally liable for damages to any student who becomes a victim of the former employee’s sexual misconduct at a subsequent employing district.

In other words, the state has created a no-win situation for public school districts. The new law requires them to violate the rights of former employees, and if districts refuse to violate those rights, someone might sue them.

Here’s the problematic provision of the otherwise well-intentioned Amy Hestir Student Protection Act:

If a school district had an employee whose job involved contact with children and the district received allegations of the employee’s sexual misconduct and as a result of such allegations or as a result of such allegations being substantiated by the Child Abuse and Neglect Review Board the district dismisses the employee or allows the employee to resign and the district fails to disclose the allegations in a reference to another school district or when responding to a potential employer’s request for information regarding such employee, the district will be liable for damages and have third-party liability for any legal liability, legal fees, costs, and expenses incurred by the employing district caused by the failure to disclose such information to the employing district.

Another provision of this act already has been judged to be most likely unconstitutional, and it took a special session of the Missouri General Assembly to remove the problematic section after it had been signed into law. That provision — one regulating educator communications with students online — drew national attention last year. Cole County Circuit Court Judge Jon E. Beetem issued a preliminary injunction against enforcement, describing the potential violation of free speech as “staggering.” The Missouri State Teachers Association filed that lawsuit, which has not yet concluded.

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Art Credit: KC Education Enterprise | Photo Credit: Dreamstime

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About jwmartinez

JoLynne is a journalist and educator. She holds a bachelor's degree in journalism from the University of Kansas and a Master of Arts in Teaching from Park University and is certified to teach high school journalism and English. Former employment includes work for Cable News Network and the University of Missouri-Kansas City in addition to freelancing for clients such as the Kansas City Star and The Pitch.

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