A Missouri law prohibiting teachers from private online conversations with students has now been repealed and a substitute signed by the governor after multiple lawsuits and a court’s decision to stay the law.
Senate Bill 54 was initially developed to protect students from sexual assaults by teachers and other school staff and increase the visibility of staff communication, said its sponsor, state Sen. Jane Cunningham (R-West County). It was slated to go into effect August 28, but lawmakers repealed it and introduced Senate Bill 1 after public outcry and a legal injunction.
“This is a complicated, delicate issue,” said John Chasnoff, program director of the Eastern-Missouri ACLU.
SB1 requires school districts to develop online communication policies and submit them to the state by March 1, 2012. SB 1 passed 139-2 in the House and 33-0 in the Senate. Gov. Jay Nixon (D) signed it Oct. 21.
‘Chilling Effect on Speech’
SB 54’s broad language on social media and electronic communication sparked lawsuits from the ACLU and the Missouri State Teachers Association, a union.
“The breadth of the prohibition is staggering,” said Circuit Judge Jon Beetem upon approving an injunction against it in August. “It clearly prohibits communication between family members and their teacher parents using these types of sites. The statute would have a chilling effect on speech.”
Cunningham sponsored both bills, and has worked to develop an online communication law for several years. No other states have passed similar laws, Cunningham said, particularly the provision to hold school districts liable for sexual assaults perpetrated by staff.
Honing the Law
“The legislature thought it could do better in terms of protecting students from abuse,” said Patrick Ishmael, a Show-Me Institute policy analyst. “The legislature’s role is to protect the rights and interests of those that elect them, and they seem to think that additional protections were required.”
Though SB 54 passed with little resistance in the spring legislative session, the broad language used in the social media and electronic communication section of the bill became a widespread concern.
SB 54 prohibited a situation where “the information available on the website is available only to the owner (teacher) and user (student) by mutual explicit consent and where third parties have no access to the information on the website absent an explicit consent agreement with the owner (teacher).”
“[The revision] seems to have soothed objections,” Ishmael said. “It was just crafting of the language of itself that was imperfect and imprecise. It was and is well-intentioned legislation.”
The lawsuits against the state cost taxpayers unnecessary time and money, Cunningham said.
Prohibiting ‘Hidden Communication’
“We were only trying to prohibit hidden information and communication between a teacher and a minor,” Cunningham said. “A teacher can be Facebook friends with a student, the teacher can post things on his or her wall.… There was purposeful misinformation broadcast around.”
SB 54 also banned teachers from establishing, maintaining, or using a work-related Web site unless school officials and students’ guardians could access it. Similarly, a teacher could not use a non-work-related site, such as Facebook, to communicate privately with a current or former student if the former student was still a minor.
“The [bill’s] language banned teachers from using Facebook altogether because [Facebook] had the possibility of exclusive conversation,” Chasnoff said. “We felt that it was very restrictive of the First Amendment.”
SB 54 stated, however, “Nothing in this subsection shall be construed as prohibiting a teacher from establishing a nonwork related internet site, provided the site is used in accordance with this section.”
Cunningham collaborated with organizations and educators to rewrite the social media section of the law for SB 1. One clarification was changing focus from “teachers” to “all educators and staff.”
“We felt that it was important to clarify the language and have no ambiguity,” Cunningham said. “We worked on language that made it very concise and basically kept the intention of the first bill, that local school districts would write their own policies in regards to communication, including electronic communication between teachers and students.”
After the court’s injunction, Gov. Nixon added the law to the agenda of a special session he called, which began Sept. 6. He requested them legislature repeal the law and not replace it with another. Instead, they sent him SB 1.
“This bill is not as good as it should be, but to veto it would return us to a bill that would be far worse,” Nixon said in a written statement.
Similar Georgia Bill Praised
The ACLU is fighting the new bill, and had asked the governor to veto it.
“Social media provides really more safeguards now than it has in the past—a phone call has no record, so we don’t know what was involved,” Chasnoff said. “Facebook creates a record, so we don’t really understand why people are upset about it as they are.”
Beetem said the evidence presented in the preliminary injunction hearing showed social media are one of the main communication methods Missouri teachers use.
Related legislation in Georgia would make a better prototype for Missouri’s bill, Chasnoff said.
“The general thrust [of Georgia’s bill] was educating teachers and students about appropriate use of social media,” Chasnoff said. “Anything that attempts to restrict causes First Amendment problems.”
Image by Dmitris Kalogeropoylos.