Why Can't We Be Friends? The Banning of Teacher-Student Communication Via Social Media and the Freedom of Speech
2012; Volume: 62; Issue: 1 Linguagem: Inglês
ISSN
0003-1453
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoUndoubtedly, the sexual abuse of children by authority figures, particularly teachers and coaches, has been an issue of national concern for years. Recently, there have been several high-profile child sexual abuse scandals in the news, such as the ordeal involving Jerry Sandusky, a former Pennsylvania State University football coach, who was convicted of forty-five child sexual abuse counts for sexually abusing ten male children over the course of fifteen years. In an effort to prevent these tragic occurrences, state and school district officials have targeted social media as the culprit.As states and school districts across the nation revisit or implement social-media policies, some take the extreme action of completely banning teachers from using social media to communicate with students. In addition to disadvantaging students in an electronic era, these bans are unconstitutional, running afoul of the First Amendment, because they are overbroad and do not pass intermediate scrutiny.Although states and school districts have substantial leeway in disciplining their employees for online expressions, they cannot implement laws or policies that infringe upon employees' expression that is constitutionally protected by the First Amendment. States and school districts are continuously battling with the issue of how to regulate social-media use by teachers and need guidance in crafting policies. This Comment analyzes current laws and policies that are likely to be found unconstitutional by courts; this Comment also provides social-media policy guidelines that, in contrast, are likely to survive constitutional challenge.INTRODUCTIONWhen Hestir was twelve years old, she was sexually abused by one of her male teachers.1 This abuse lasted nearly a year.2 Over thirty years later, in March of 2011, Hestir recounted her traumatic story to the Missouri General Assembly in order to galvanize support for legislation banning teacher-student communication via any exclusive electronic media, such as social-networking websites.3 The law also contained various other provisions designed to curtail child sexual abuse by teachers.4In her testimony before the Missouri House Education Committee, Hestir depicted how her abuser psychologically controlled her through the use of threats and a pornographic novel that featured a main character named Amy.5 She also described when the abuse would occur: during her teacher's planning hour, during the time when her teacher would take her home after she babysat for his daughter, and during the summer when she would meet him at church.6 At the time, Hestir did not divulge the matter to any adults because of the shame and fear she felt, but after nine years of silence, she gathered the courage to report the incident and open an investigation.7 Unfortunately, the investigation did not produce results, and Hestir's abuser continued his career in teaching by transferring to a different school district.8Accounts of abuse such as this one are not anomalies; many students around the nation share similar stories. In fact, Missouri, the state where Hestir was abused, is ranked only eleventh in the nation for the number of educators who have lost their licenses due to sexual misconduct.9 States have addressed this issue in various ways. Even though social-networking sites were not yet conceived of when Hestir was in school and sexual abuse by teachers was documented as early as 430 B.C.,10 the Missouri General Assembly believed that banning teacher-student communication via electronic media would prevent sexual abuse.11The Missouri General Assembly passed the bill, with Governor Jay Nixon signing it into law on July 14, 2011.12 The new law, named the Amy Hestir Student Protection Act, was scheduled to go into effect on August 28, 2011.13 The Missouri State Teachers Association, however, opposed the law and quickly sprung into action, filing a complaint against Governor Nixon for injunctive relief. …
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