While school systems are battling over $500 million in federal “Race to the Top” incentive funding, many states are simultaneously “racing to the bottom” to see who can enact the most ill-considered, ineffective, and constitutionally shaky policies restricting teachers’ use of technology.
The current “leader” is Missouri, where a new state law recently signed by Gov. Jay Nixon bans teachers from using social networking sites to communicate with students (including former students, if they’re under 18 and haven’t graduated yet).
Missouri Senate Bill 54 updates and revises a set of state laws intended to prevent and punish child sexual abuse by educators, undeniably a worthy goal. But when laws are enacted under emotional circumstances, excesses are common. It’s the rare legislator with the courage and foresight to raise a constitutional concern at the risk of being branded “pro-child predator,” no matter how flawed the proposal.
The operative phrase in Senate Bill 54 is this one:
No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student.
While not a model of unambiguous drafting, the intent is to prevent teachers from using any Web-based platform that enables people to message (or chat with) each other outside of public view.
The law is being shorthanded as a “no being Facebook friends with your students” law, which by that description seems harmless — most teachers will not accept Facebook requests from current students anyway, as a matter of professional ethics (not to mention protecting themselves against “too much sharing”). But it goes quite a bit further than that. It’s likely that the law would prohibit interaction through a non-social-networking site such as Google’s Gmail, since Gmail “allows” exclusive video chatting with the people that you email. It may also apply to the many free conference-calling or video-call services offered online.
As the Supreme Court has repeatedly made clear, laws infringing First Amendment activity must be tailored to remedy the injury that is being addressed — and only that injury. If a law is so broad that it also penalizes harmless speech — or so under-inclusive that it leaves large chunks of comparably harmful speech untouched — then the law violates the First Amendment and is void.
By that standard, the Missouri law is unconstitutional in at least one obvious respect.
The law restricts only teachers’ communication with students, and not that of other school personnel — and in particular, not school administrators. There is no evidence that teachers are more prone than principals to seek out inappropriate relationships with students. (In fact, there is significant anecdotal evidence to the contrary.) And there are many more legitimate reasons for teachers to be Facebook-messaging their students than principals — if you get a Facebook message from your principal, it’s probably not to tell you that you left your iPod in the classroom or that baseball practice has been rained out.
Because the law is substantially under-inclusive, it would almost certainly fail if constitutionally challenged.
Missouri may be “tops” in its technophobic overreaction to what undeniably is a disturbing social problem requiring a serious and well-thought-out response. But it is far from alone:
- Rhode Island’s legislature banned all use of social-networking sites — without even trying to define what a social-networking site is — on school grounds without advance permission from a school administrator.
- Louisiana made it a punishable offense for a teacher to use any non-school-issued computer or cellphone to communicate with a student without immediately notifying the principal’s office (a move that, if enforced, would greatly impede student journalists’ ability to use teachers as confidential sources).
- Virginia tried to get into the “race,” but its state Board of Education fortunately awakened and recognized the dangers of a proposed policy that would have banned any teacher-student communication over a personal computer or cellphone — which would have made it a potential firing offense for a teacher to text-message a tardy field-trip participant that the bus was about to leave.
It seems too simplistic to have to say this, but having sex with underage kids under your supervision as an educator is already a felony. It seems farfetched that a person who is undeterred by the certainty of loss of career, loss of professional licensure, substantial prison time, and a lifetime spent as a registered sex offender would suddenly be deterred by a school board reprimand for inappropriate Internet use. The only people who are likely to change their behavior as a result of measures like Senate Bill 54 are the law-abiding people who were using websites and cellphones innocently.
Those who use text-messaging, social-networking pages and other technological tools productively and safely in their teaching need to stand up and tell their stories to state- and district-level policymakers — before they are made into outlaws.