New Student-Teacher Facebook Ban Raises Constitutional Concerns

By now the legal implications of Facebook and social network websites have been thoroughly explored. We’ve seen how Facebook evidence can be utilized in a trial (for better or for worse), and how it even plays out in such obscure areas as jury selection.

But with the introduction of a new Missouri law, the Facebook phenomenon enters into another area of our lives- education. More specifically, Missouri’s new law will make it illegal for a teacher to maintain a private, exclusive relationship with students on social networking websites such as Facebook.

In light of the new law, teachers are being encouraged not to “friend” their students, and to “un-friend” their existing students on Facebook. The law, known as the “Amy Hestir Student Protection Act”, will take effect at the end of August, 2011. It was created in response to a case of student molestation by a teacher years ago; besides the social website provisions, the law also requires school authorities to report any instances of abuse within 24 hours.

Needless to say, Missouri’s law is causing all kinds of stir- I mean, the story is all over the web. One of the main concerns is that the law appears to be overbroad, meaning that it might potentially regulate student-teacher interactions beyond the law’s purpose. In fact, one law professor believes that the Missouri teacher-student Facebook ban is “doomed” due to its being overbroad.

Amidst all the commotion, I’d like to focus in on a few Constitutional challenges against the Act. I feel that these Constitutional concerns can shed some light on the fate of student-teacher relationships online. One challenge that teachers are raising is that the law impinges upon their right to “practice a trade or profession” (i.e., the profession of teaching).

Now, the right to practice a trade or profession is only loosely protected under Constitutional laws. If a law is implemented that will regulate the teaching profession, the law must pass a simple “rational basis” test. In order to pass muster, the Student Protection Act need only be “rationally related to a legitimate government interest”. While that sounds complicated, this is actually a much lower standard than those applied for other rights.

In this case, the “legitimate government interest” would be that of protecting students from sexual abuse by teachers. Is the law “rationally related” to this interest? I would believe so- many instances of teacher-student sexual abuse had their beginnings on Facebook or other similar social networking websites. Restricting private teacher-student interactions online can definitely help reduce the potential for abuse. And so at the outset, it appears that Missouri ban would probably survive a Constitutional challenge based on the right to practice teaching.

Now, compare the “rational basis” standard with other standards used for more “fundamental rights” like the right to free speech). Laws regulating fundamental rights must pass a “strict scrutiny” analysis. This means that the law must actually be necessary to achieve a compelling government interest. Besides that, any law that seeks to regulate a fundamental right must use the least restricting means to accomplish its purpose. It is a much, much higher standard to fulfill than the rational basis test.

In this regard, there are many teachers who claim that the Facebooking restrictions violate the fundamental 1^st Amendment right to free speech. If a 1^st Amendment free speech challenge is raised, the court would have to use the strict scrutiny approach rather than the more simplistic rational basis analysis. This would make it much easier to strike the law down.

Personally speaking, I’m all for the new law. To me it doesn’t make any sense for teachers to create friendships with students online, especially if they are under the radar and not being monitored by school authorities. In my opinion, the interest in protecting student’s safety outweighs the limitations in communication that the Act might bring.

Also, teachers have so many other options for communicating openly with students online (they can even create public accounts on Facebook apart from their personal page). The ban may even help students learn how to manage separate accounts, which will be a valuable asset for the professional future.

But as you can see, the legal analysis involved with this law is going to be complicated. I’ll leave the results to the courts, but eager to see how the results will turn out. My point is that the interplay of various Constitutional aspects can make some laws very complicated, legally speaking. It’s not a simply a matter of attacking a law head on- there are many different angles and avenues by which a particular law can be struck down or upheld.