School Law: Missouri, Facebook, and sexual abuse by teachers

August 24, 2011

School Law(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

To view the first post on Indiana’s school voucher program, click here.

To view the second post on discrimination in Minnesota schools, click here.

To view the third post on the ABA’s sanction of Villanova, click here.

Last month, Missouri passed SB 54, also known as the Amy Hestir Student Protection Act.

Amy Hestir, the Act’s namesake, was sexually abused by a 30-year-old teacher in 1980 when she was 13 years old.

Though silent on the matter for almost ten years, Hestir eventually went to the police, who investigated but never filed charges against the teacher (most likely because of a lack of evidence).

The Act creates provisions intended to protect students from sexual abuse by teachers.

Also included is a provision that forbids teachers from having “a nonwork-related website that allows exclusive access with a current or former student.”

In practice, it’s unclear what this translates to.

So far, it has prompted teachers in the state to un-Friend all of their students on Facebook, or completely shut down their Facebook and Twitter accounts altogether.

Because of the provision’s broad, sweeping effects, the Missouri State Teachers Association is suing over its constitutionality.

As Conor Friedersdorf of The Atlantic points out, the provision is nonsensical as a policy matter.

Facebook didn’t exist in 1980, and sexual abuse of students by teachers has sadly been going on long before the existence of even the internet.

Blocking student-teacher interaction on social media sites may slightly impede some student-teacher abuse, but I highly doubt it will stop any abuse completely.

Missouri Facebook lawMoreover, as mentioned in an earlier post, Facebook is a gold mine of evidence for law enforcement.

It’s entirely possible, if not likely, that Hestir’s abuser would be behind bars if Facebook were around in 1980.

However, lawsuits are rarely (nor should they ever be) decided primarily on policy grounds.

Fortunately for Missouri teachers, the provision is blatantly unconstitutional on several grounds.

First, the provision violates First Amendment protections of Free Speech, in that it is overly broad.

Namely, in trying to block certain forms of unprotected speech (student-teacher interactions of a sexual nature), the provision blocks a great deal of protected speech.

Closely related, the provision is also void for vagueness: it violates constitutional due process because the average citizen (and probably most lawyers) cannot determine exactly what behavior is actually prohibited.

Indeed, the text of the provision is so vague that it’s entirely possible that teachers may be forbidden from having an email account, (since technically, email is almost always accessible from a website in some form).

While that clearly wasn’t the intent of the legislature (one would hope), the law is unconstitutionally vague because it was so poorly written that no one really knows what it actually forbids.

There are several other constitutional violations alleged by the complaint, but either of the two mentioned here are enough to void the law on their own.

Not to say that protecting minors from sexual predators isn’t an important objective for the government to pursue, but the provision isn’t a logical measure from a policy viewpoint.

Rather, the law seems more to be an emotional response to an inflammatory issue.

Of course, that’s a big reason why the Constitution is there: to act as a counterweight to mob justice.