This article first appeared in the St. Louis Beacon, Aug. 26, 2011 - After a judge put on hold a controversial part of a law governing electronic communications between teachers and students, Gov. Jay Nixon said Friday that next month's special session of the Missouri legislature may consider repealing that section of the law altogether.
The two developments came just two days before the wide-ranging law, which passed unanimously in the legislature earlier this year, was scheduled to take effect.
In his ruling in a suit brought by the Missouri State Teachers Association, Cole County Circuit Judge Jon E. Beetem said the rest of the law, known as the Amy Hestir Student Protection Act, may go into effect as scheduled on Sunday.
But the section of the law that prompted the lawsuit, which would prohibit private electronic communications between teachers and students or former students, was blocked by Beetem, who said that it "would have a chilling effect on speech."
Citing the language of the law - "No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student" - Beetem said that "the breadth of the prohibition is staggering."
He said that the electronic communication portion of the law violates free expression rights guaranteed by the U.S. Constitution and the Missouri Constitution "in that it prohibits all teachers from using any non-work-related social networking sites which allow exclusive access with current and former students."
Beetem noted that such sites are "often the primary, if not sole manner, of communications between the Plaintiffs and their students."
The ruling established a preliminary injunction against the section of the law for 180 days, until Feb. 20, 2012. But just a few hours after Beetem's decision was issued, Nixon's office may have made that time period moot.
In a statement released shortly after noon, the governor said that he would add to the list of items to be on the agenda of the special session that begins Sept. 6 repeal of that section of the law, "while preserving other vital protections included in the bill. In addition, I will be asking for input on this issue from teachers, parents and other stakeholders."
Citing confusion among educators and others about precisely what the law would and would not allow, Nixon said that his limited addition to the session's agenda is designed to clarify the question. The session may consider only repeal of the one section of the law, not new language to replace, his office said.
"First and foremost," his statement said, "our top concern and priority is and always will be protecting children across Missouri, and making sure students receive the quality education they need and deserve.
"In a digital world, we must recognize that social media can be an important tool for teaching and learning. At the same time, we must be vigilant about threats posed to students through the Internet and other means."
Teacher groups, as well as Sen. Jane Cunningham, R-Chesterfield, one of the bill's co-sponsors, were pleased with the governor's action.
"My staff and I have been working with education stakeholders throughout the state for several weeks now," Cunningham said, "coming up with clarification language, so we are all prepared to remove the ambiguity."
She noted that several school boards have implemented on their own policies similar to what was intended by the section of the Hestir law that is now on hold, so efforts to replace that portion with clearer language will be informed by that experience.
Cunningham said she feels confident that if satisfactory substitute language is presented to the governor, it may still be allowed to be on the agenda for the special session.
"I feel like common sense will prevail," she said. "I also feel that if we have it together, waiting 180 days will not be necessary, and we will be able to keep the intent of the law, which is to protect students and teachers."
Rep. Chris Kelly, D-Columbia, who sponsored the bill on the House side, also expressed gratitude that the issue will be part of the special session, but think that once it's on the table for repeal, legislators also may be able to substitute new language.
"Technically," he said, "you probably can't just repeal it. We want to fix the problem, and I'm glad we're going to get a chance to fix the problem. It's the right thing to do."
Mike Wood of the Missouri State Teachers Association, which brought the suit that Beetem ruled on Friday, said the judge's ruling "was everything we could have ever asked for, and I think it was pretty clear that was the way it was going to go."
He said that if lawmakers decide in the special session to repeal the section of the law in question, the suit would be moot because the provisions that his union objected to would no longer be part of the law.
But, Wood said, the MSTA would not support trying to come up with substitute language that could be passed during the special session.
"I don't think we can get that done right in time for the special session," he said, "and since the call doesn't call for a fix, we don't have to do it during the session."
DeeAnn Aull, of the Missouri National Education Association, said she welcomed Nixon's call to get more information from teachers, parents and other stakeholders to make whatever corrections are needed in the law. She praised his decision to expand the call of the session and Beetem's ruling to stay implementation of the electronic communication provision of the law.
"We know this thing is going to take a long-term fix," she said, "and we need more discussion to get it right, so both of these decisions will us to do that."
She said the governor "is a strong supporter of public education and always has been, and he's a cheerleader for good teachers, and good teachers would want to find a solution."
In response to questions about why problems and objections cropped up at the last minute in a bill that was discussed for so long, had the backing of so many education groups and passed the legislature unanimously, Aull said:
"It was a large bill, with many important and deep issues on how to protect children. We did realize there could be some confusion and had hopes we would be able to solve those through staff and board policy and through clean-up legislation. There's just so much you can do. You know how the legislative process works. Sometimes things happen like this, at least toward the end of a session."
In his call to include repeal of the controversial part of the law in the special session, Nixon emphasized that other provisions of the law would not be subject to action during the session. Those require:
- Disclosure of substantiated allegations of sexual misconduct by a former employee of a school to a public school that inquires about potentially hiring the employee
- Reports of sexual misconduct by a teacher or employee be forwarded to the Department of Social Services within 24 hours for an investigation
- Annual background checks of teachers
- Immediate suspension of school employees upon substantiation of sexual misconduct
- Banning registered sex offenders from running for and serving on school boards
- School districts to include training on the signs of sexual abuse in employee training
- Establishing that crimes relating to sexual misconduct are a basis for discipline and the revocation of teachers' licenses.