Published by MARE, October 2011
With the passage of the Amy Hestir Act Student Protection Act (“the Act”), teachers across the state wondered whether they needed to delete their Facebook “friends” while administrators wondered, “Who’s going to monitor this?” On August 19, 2011, the Missouri State Teachers’ Association filed suit in Cole County Circuit Court against the State, arguing that the law was deeply unfair. On August 26, 2011, Judge Beetam granted a preliminary injunction enjoining enforcement of the portion of the Act that prohibited communication between students and teachers on non-work-related websites that allow exclusive access.
In response to Judge Beetam’s ruling, State Senator Jane Cunningham sponsored Senate Bill 1, which would require that, by March 1, 2012, districts prepare a policy concerning staff-student communication, to address electronic media and other mechanisms to prevent improper communications. Senate Bill 1 would also repeal the Act’s prohibition on a teacher establishing, maintaining, or using a work-related internet site unless it is available to school administrators and the child’s legal custodian, physical custodian or legal guardian. It would also repeal the Act’s prohibition on teachers establishing, maintaining, or using a non-work-related internet site which allows exclusive access with a current or former student. Finally, Senate Bill 1 would repeal the convoluted definitions of “exclusive access,” “former student,” “work-related internet site,” and “non-work-related internet site” currently found in the Act. On September 9, 2011, Senate Bill 1 passed the Education Committee and on September 19, 2011, was referred to the Rules Committee.
While the General Assembly works through proposed new language in order to bypass the Court’s injunction prior to the expiration of the Order’s 180-day term, there are a few things that we do know are still viable under the Act.
First, and perhaps most important, the Act’s provisions regarding the reporting of suspected child abuse is still alive and well. Under the new requirements of the Act, if a student reports abuse by a school employee to another school employee, the latter has 24 hours to report the conduct to the Children’s Division. Note that this is 24 actual clock hours – so if a student reports the misconduct to a school employee at 3:00 p.m. on a Friday, the employee has to report the misconduct to the Children’s Division by 3:00 p.m. on Saturday. Further, the district cannot conduct an investigation into the allegations for the purpose of determining whether the allegation is substantiated (although it may investigate the allegations for the purpose of making a decision regarding the accused employee’s employment). If the Children’s Division reaches a finding of “substantiated” at the conclusion of its investigation, the district must immediately suspend the accused employee’s employment (if it has not already done so).
Second, If a school district had an employee whose job involved contact with children and the district receives allegations of the employee’s sexual misconduct and as a result of such allegations the district either dismisses the employee or allows the employee to resign, the district must disclose this fact to another school district which makes an employment inquiry about the former employee.
Finally, while the injunction stays enforcement of the prohibition on online communication, it does not relieve school districts of their responsibility to prepare a policy enforcing the Act. MCE has prepared a policy to allow districts to meet their policy-making obligations under the Act. However, until either new legislation is passed, the injunction expires, or the Court rules on MSTA’s request for a permanent injunction, districts should advise their employees that if they rely on the Court’s Order during its pendency, they will not be disciplined for their online communications with students, unless the communications violate already-existing Board policies (e.g. policies prohibiting sexual harassment and child abuse). If Senate Bill 1 passes both houses of the General Assembly and is signed into law, districts will still have a policy-writing requirement, but will have until March 1, 2012, to meet the requirement. As noted above, if Senate Bill 1 becomes law, the particulars of the policy will differ from the current requirements under the Act.
If you have further questions regarding the implications and implementation of the Amy Hestir Student Protection Act, contact the attorneys of Mickes Goldman O’Toole or your legal counsel.
© 2011 Mickes Goldman O’Toole, LLC
