Backers of student protection law may try to get it fixed in special session
This article first appeared in the St. Louis Beacon, Aug. 23, 2011 - As questions continue to arise about a law designed to protect Missouri students from possible sexual exploitation by teachers, backers of the law say they will try to get problems with it fixed in the upcoming special session of the legislature.
At least two lawsuits have been filed against the law, including one from a teacher in Ladue who says it essentially means she cannot become friends with her own children on Facebook if they were also her former students. She based her suit on guidelines sent to district personnel.
In response, education groups and the sponsors of the law in the Missouri House and Senate are working to come up with consensus language to address what they say are unintended consequences of the law. If they can come up with proposed changes that all groups involved agree upon, they say they will ask Gov. Jay Nixon to include the issue in the special session that he has called to begin Sept. 6.
"We didn't want to come to them with a formal request until we had a sense that that suggested fixes are in order," said Otto Fajen, legislative director with the Missouri National Education Association, in a conference call with reporters Tuesday.
"We still have two weeks. We're optimistic that this will be an issue that will not add a lot of weight to the session. It will be pretty straightforward."
Asked whether the governor would consider adding the topic to the special session, which already includes economic development, local control for the St. Louis police department and other issues, spokesman Scott Holste said in an email only that "we must have a crisp, efficient session, and that is why the Governor included the items he did in his call."
All three of the state's teachers unions - including the Missouri State Teachers Association, which filed suit against the law in state court last week - as well as associations of school board member and school administrators were meeting Tuesday to try to come up with acceptable changes to the law, known as the Amy Hestir Student Protection Act, which becomes effective this coming Sunday.
Mike Wood, legislative director for the teachers association, said if a compromise appears likely, and the groups can draft acceptable language, they would run it by sponsors of the legislation - Sen. Jane Cunningham, R-Chesterfield, and Rep. Chris Kelly, D-Columbia.
Wood said that acceptable language alone would not be enough to prompt the MSTA to drop its lawsuit, but "if the language were actually passed and signed into law, then the lawsuit would probably become moot."
Opponents Go to Court
The MSTA lawsuit , filed last week, alleges that the law unconstitutionally violates teachers' rights of expression. It was followed by the one filed by the American Civil Liberties Union on behalf of Christina Thomas, a communication arts teacher at Ladue Middle School.
Her suit said that Ladue has told its teachers in a staff memo that if their own children were students or former students, then they are barred from "communicating exclusively through Facebook or other social-networking sites with their own children or members of their Sunday School classes, athletic teams or scout troops," according to the action filed in U.S. District Court in St. Louis.
Thomas' suit said that the law's restrictions would in effect bar her from using "such widely employed forms of communication as Facebook and Google Docs." The suit names the Ladue district, Superintendent Marsha Chappelow and the seven members of the state school board as defendants and seeks an injunction against what it calls the law's "broad prior restraint on a large amount of protected speech."
Responding to the lawsuit, Susan Dielmann, spokeswoman for the Ladue schools, told the Beacon that the district had not issued any directive against the kind of communication that Thomas said was prohibited.
Instead, Dielmann cited a memo issued to Ladue school district staff on Aug. 9. It notes that the law requires the district to have in place by Jan. 1 of next year a policy regarding communications between students and both teachers and employees. It then listed 11 talking points, including one that reads:
"Teachers may not 'friend' current or former students on Facebook or similar social networking sites. The Act does not currently have any exceptions. The policy to be adopted by the Board will determine whether the district wishes to include any exceptions. There could be changes by the legislature or through the courts, but as the law stands now, as of January 1, 2012, teachers may not 'friend' even their own children on a Facebook or other social networking site, if their children are students or former students, as defined by law. Similarly, teachers may not 'friend' student-members of their Sunday School classes, select athletic teams, or scout troops, unless or until exceptions are enacted."
Dielmann emphasized the Ladue school board is "scrambling like every other school district and hoping for some clarification" of the law and what it will or will not allow.
But as far as Thomas' suit goes, Dielmann added that "it sounds to me like there may be some confusion there as to what we've been telling our staff as we provide information as to how our attorneys are interpreting it."
She added athat "we have not directed teachers not to communicate with their children. I think that's where there may be some confusion here." She added that such a direction would actually go against the spirit of the law, which is designed to protect students from possibly harmful interactions online.
"Clearly that's not the intent of the law," Dielmann said of a prohibition of contact between a teacher and her own children. "That flies in the face of the law, because those teachers cannot monitor their own children's Facebook accounts."
She said the Ladue board, with input from the Missouri School Boards Association, will work to come up with a policy that will put the requirements of the law into place. Until then, she said, the district's advice is: "Err on the side of caution.
"Don't write anything anywhere - and this isn't anything different from what we would have said before this - that you wouldn't want an administrator, a parent or a federal judge to see. That's just common sense."
Cunningham, who once was a member of the Ladue school board, refers to another "common sense" aspect of the whole lawsuit - the fact that even though the law was the product of four years of legislative work, no one thought about the possibility of teachers being blocked from communicating online with their own children.
As a result, Cunningham told the Beacon, efforts are under way to fix the problem.
"She doesn't need a suit to get it fixed," said Cunningham. "There's a glitch in the bill."
She also emphasized that "former students" only refers to minors, under the age of 18, who have not graduated, which she said was another point that has been raised by critics of the legislation.
Cunningham said she has been surprised by the amount of controversy over the bill in recent weeks, given its bipartisan support in the legislature and its passage by unanimous votes in both the House and Senate.
She was particularly puzzled by the MSTA suit, she said, because the association was one of the many education groups in the state that worked to help write the law in the first place.
"I find it's a real disservice to dues-paying members of MSTA," Cunningham said, "to use their hard-earned teacher funds to sue over legislation that they actually helped craft, endorse and promote. They're suing over their own work."
In the conference call Tuesday morning, Cunningham's chief of staff, Kit Crancer, said that despite what the lawsuits allege, the law does not violate anyone's First Amendment rights.
"We are not blocking communication between teachers and students," he said. "We are merely asking that a third party can view communications between a teacher and a minor, or communications by a counselor or a coach or an administrator for that matter."
The goal, he said, is keeping students safe.
"We expect kids to be safe," he said. "We expect schools to be safe."
Kelly, who sponsored the bill in the House, told the Beacon that the claims made by Thomas in her lawsuit aren't true at all.
"To say a parent can't make a Facebook communication with her children is patently silly," he said. "There are plenty of things wrong with the bill, and we need to get them fixed. But that point is one that is patently untrue."
He said the ACLU, which filed Thomas' suit, "has known about this language for two years and has not said boo about it."
Kelly said he was waiting to see whether the various education groups can come up with language acceptable to everybody; if that happens, he said, then the request should be made to Nixon to include the issue in the special session.
"As soon as they come to me and to Jane and say 'This is the language, we're all on board,' then it's time to go to the governor," he said.
"The argument for him not to do it will be much weaker if everybody seems to be on the same Facebook page, to use a more modern analogy than to have everyone singing from the same songbook."