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August 16, 2011
A Close Look at Missouri's "Amy Hestir Student Protection Act" (Guest Blog Post)
By guest blogger Sydney Muray, Certified Paralegal
In the 1980s, a 12-year-old girl named Amy Hestir was manipulated by her seven-grade music teacher into an abusive sexual relationship that lasted over a year. While Amy suffered severe emotional trauma as a result of her experiences, the teacher simply transferred from district to district until he retired. The relocation of sexually predatory teachers around the state to avoid accountability was a practice so common that the Missouri Department of Education termed it “passing the trash.” At the age of 40, Amy Hestir gave her story in testimony to the Missouri legislature in support of legislation sponsored by Sen. Jane Cunningham that sought to impose stricter limitations on contact between teachers and students. Cunningham fought for the legislation for five years before it was passed unanimously as SB54 and named the “Amy Hestir Student Protection Act.”
The bill, signed into law by Gov. Jay Nixon on July 14, 2011 and effective Aug. 28, 2011, contains provisions that are intended to prevent future incidents of "passing the trash" in four main ways.
1) Mandatory reporting requirements and elevating investigations to the Children’s Division from the local district.
2) The creation of a special task force (“Erin’s Law”).
3) Stronger background checks and penalties for teachers with recorded sexual abuse.
4) Mandated creation of new district-level communication policies and a state-level restriction on website use:
S162.069. By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a non work-related website that allows exclusive access with a current or former student.
The portion in bold has received national attention as a “Facebook ban,” although Facebook is neither the target of the legislation nor the only site covered by the law. “Exclusive access” is defined by the bill as any website that requires mutual consent by both the teacher and student in order to access information, making the range of the bill extremely broad. Work-related websites can still be used if both the school’s administrators and the parents or guardians of the child have access to all the information being exchanged, but schools and teachers will be walking a fine line by trying to use any site which falls under the new law.
The ultimate scope of the law will depend on the way in which it is enforced, but the language of the bill could easily be extended to all social networking sites, and even educational services like Blackboard. The issue is that even if a site is work-related, its content and the exchanges between teachers and students need to be available to administrators and parents or guardians, and many of these services have built-in features for private messaging and sharing restrictions which might run afoul of the new law. This establishes one more barrier for educators who want to incorporate modern applications with communication components into their classes. Even if enforcement is not so severe, educators and administrators will be trying to make decisions about how new technologies fit into the vague parameters of the bill at their own risk.
As such, there is an understandable concern that this may have the unintended consequence of stifling attempts to innovate and modernize primary and secondary education by effectively banning many popular services and placing others in uncertain territory. The American Civil Liberties Union has also voiced concerns that the bill’s language may be so broad as to ban teachers simply having an account on a social networking site also used by students, although Sen. Cunningham has said that the law is only intended to regulate direct communication and is not supposed to stop teachers from just having accounts or communicating with students publicly.
The response by teachers to the bill has been mixed. Many object to what they see as a presumption of guilt and a sign of mistrust. Additionally, some teachers have expressed concern that this bill will deny students the opportunity to communicate with them about sensitive matters through mediums that they feel comfortable using. The students in the Missouri school system today grew up with social networking sites, and they are in many ways reliant on them. However, the most extreme concern is that the lack of privacy in correspondence could deter students from telling a teacher they trust about the very kind of abuse that the bill is trying to address.
On the other hand, some teachers have expressed support for the new requirement imposed by the law on districts to create unambiguous guidelines for contact of any kind between teachers and students. Besides the concern about improper contact, there is a broader issue about the changing relationship between students and teachers. The increased use of social networking has placed many educators in a difficult gray area where it is unclear where the boundaries should lie. The policies and guidelines of local districts simply have not kept pace with technological advancement, making the mandate to create new and clear policies a reasonable requirement.
The disconnect in the bill is that it handles private communication between teachers and students in radically different ways depending on the medium. S162.069 categorically prohibits private correspondence through websites, but in the first two sentences, it only mandates that districts draft policies to deal with all other venues of communication. There is no evidence that social networking and other websites are uniquely risky or prone to abuse in comparison to any other form of communication, but they are treated in a completely different way. The most obvious explanation is that the decision was not based in risk assessment, but in a generation gap in how people communicate. The adoption of new communication technology is highly uneven between different age groups, and the average parent or legislator is less likely to see redeeming qualities in a technology that they do not use. The specific restriction of website use does not show a distrust of teachers, but distrust in a venue of communication that has been the subject of a recent wave of sensationalist news and with few passionate advocates in the Missouri legislature.
This is not the first time Missouri wrestled with the issue of trying to update old laws and regulations to reflect modern communication technology, nor is the Missouri General Assembly alone in taking bold moves. In 2006, a 13 year-old Missourian girl named Megan Meier committed suicide after being the victim of a cruel hoax and harassment through MySpace by Lori Drew, the mother of one of her peers. The response to the tragedy was nationwide and especially visceral because Missouri’s harassment laws at the time did not cover the online bullying directed at Megan. The inability to get a conviction under state law was infuriating to many, and prompted a campaign of harassment and retaliation. Many jurisdictions also reacted strongly, passing laws seeking to prevent a similar tragedy. The most questionable and dangerous response did not come from the Missouri General Assembly itself, but from the federal effort to prosecute Mrs. Drew under 18 U.S.C. § 1030, also known as the “Computer Fraud and Abuse Act.” While the attempt ultimately failed, many legal experts warned that the logic the prosecution used in applying the CFAA would have effectively criminalized the violation of terms of service (ToS) agreements, adding criminal penalties to what has been an exclusively civil matter. Had that set a precedent, users could have faced federal charges for not following the lengthy and rarely-read agreements that are a part of nearly every online service.
In the cases of both Hestir and Meier, young Missourian students were preyed upon by adults in gross betrayals of common trust. Both cases were invoked to justify either the introduction of new legislation or the reapplication of older legislation in order to address potential misuse of the Internet. They are reminders that both the federal and state governments often fail to account for changing conditions or new technologies until after a tragedy occurs, and responses to tragedies are less likely to be carefully evaluated for unintended consequences or be narrowly tailored. The new law in Missouri displays this by packaging long overdue reforms with an unfortunately vague and inconsistent restriction on the use of modern communication tools by educators and students.
Posted by Eric at August 16, 2011 04:11 PM | Content Regulation
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