UPDATE: Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet, But State Court Finds the Law Likely Violates Right to Freedom of Speech

Missouri’s recently enacted “Amy Hestir Student Protection Act” was quickly followed by litigation brought by the Missouri State Teachers Association seeking to prevent the part of the law from going into effect which prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student.” The court issued the injunction, finding that educators use social networking extensively and that the “statute would have a chilling effect on speech.” Moreover, the court noted that this law would even prohibit communication between teachers and their own children via a social networking website.

Meghan Covert Russell

Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet

Missouri recently passed the “Amy Hestir Student Protection Act” (the “Act”), which targets sexual misconduct between teachers and students. Among the Act’s many provisions, including imposing liability on a school district who fails to disclose a former employee’s allegations of sexual misconduct to the new employing school district, the Act seeks to curtail online interaction between students and teachers.

The Act specifically prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student,” thus prohibiting private interaction on social networking sites such as Facebook (through private messaging and chatting) and Twitter (through direct messaging). However, the Act does not appear to prohibit social networking such as posting on Facebook walls or public group pages, provided the interaction is publicly accessible.

This law is an attempt to address a growing problem of inappropriate contact between students and teachers utilizing technology such as text messaging, emails or social networking. However, commentators have already begun to question the validity of the Missouri law and whether it will withstand review by a court due to constitutional concerns such as free speech and freedom of association.

Although school districts should discourage student and teacher interaction online, California’s free speech laws have not been interpreted in a way that would suggest school districts could prohibit appropriate interaction between students and teachers utilizing technology and social media.

Meghan Covert Russell

Fourth Circuit Upholds Discipline of Student for Online Bullying

Recently, the U.S. Court of Appeals for the Fourth Circuit upheld the discipline of a student for creating a MySpace page targeting a fellow classmate with sexual, vulgar and offensive posts in Kowalski v. Berkeley County Schools. Kara Kowalski ("Kara") was a senior at Musselman High School ("MHS") when she created a MySpace post called "S.A.S.H." which Kara claimed stood for "Students Against Sluts Herpes" and which ridiculed one fellow MHS student in particular. After finding out about the website, MHS officials suspended Kara. Kara claimed that the school district violated her First Amendment right to freedom of speech because the speech did not occur on campus or during a school-related activity, but was strictly private out of school speech.

The Fourth Circuit rejected Kara's claim, finding that she "used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which 'materially and substantially interefer[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the right of others.'" In its decision, the court addressed the realities of the far-reaching impact of the internet saying that her online posts "could reasonably be expected to reach the school or impact the school environment" even though the website was created off-campus.

This is the most recent case regarding student off-campus internet speech, and follows recent decisions by the Second and Third District: Doninger v. Neihoff (2d Cir. 2011)(discipline upheld for student who used vulgar speech to criticize school administration on her personal blog), J.S. v Blue Mountain Sch. Dist. (3d Cir. 2011)(school district violated student's free speech for disciplining student who created parody website of principal), and Layshock v. Hermitage Sch. Dist. (3d Cir. 2011)(same ruling on similar facts). A circuit split has emerged, creating the possibility that the U.S. Supreme Court may weigh in on this line of cases in the future.

Meghan Covert Russell