The past few years have seen explosive growth in the use of new communication technologies including text messaging (texting), instant messages (IMs) and the use of social networking sites like Facebook and MySpace. It is estimated that 2 trillion instant messages were sent in 2007. These new means of communicating have become main stream. The November 2008 issue of American Bar Association Journal notes that texting and IM are becoming acceptable means of professional communication, especially among the younger generation of clients and attorneys.
In the K12 educational environment, when teachers communicate with students through text-messaging, instant messaging or social networking sites, the teachers may be crossing the bounds of appropriate, professional relationships. Teacher communication with students through texting, IM, and social network sites occur almost exclusively off-campus, as school districts often block these internet sites and typically do not provide teachers with cell phones. Thus, these student-teacher relationships are, unlike school district email accounts, personal in nature and difficult to monitor. It is difficult to assess whether the communication is appropriate. Districts should encourage teachers to communicate with students through the school district provided email and prohibit at a minimum, or advise against, other forms of personal electronic communication with students.
Like the worldwide web itself, the challenge to student-teacher relationships posed by this technology is a world-wide phenomenon. In the United Kingdom, the professional body which oversees teacher licensing issued guidelines for teacher-student communication. The new Code of Professionalism and Conduct advises teachers to avoid certain modes of communication, advising that teachers:
- Do not attempt to establish an inappropriate relationship with a pupil by means which might include (but are not limited to):
- Engaging in inappropriate dialogue through internet with pupils
- Sending e-mails or text messages to pupils of an inappropriate or personal nature.
- Be aware of the potential dangers of being alone with a pupil in a private or isolated situation, using common sense and professional judgment to avoid circumstance which are, or could be, perceived to be of an inappropriate nature. This is also the case in connection with social networking websites.
- Exercise extreme caution in connection with contact/web cam internet sites (for example chat rooms, message boards, social networking sites and newsgroups) and avoid inappropriate communication with individuals under 18 or with who you may be in a position of trust.
See Code of Professionalism and Conduct, GTC Scotland (2008)
These guidelines are a step toward clarifying appropriate professional relationships, especially for the generation of teachers for whom these new communication tools are commonplace. The legal question is to what extent can school districts enforce similar guidelines for teacher-student communication which occur outside of the school setting.
Courts have interpreted the U.S. Constitution to include the Freedom of Association. There are two types of “Freedom of Association.” The first type of freedom of association, the freedom of expressive association, involves the right of individuals to affiliate with groups “for the purpose of engaging in activities protected by the First Amendment,” e.g., affiliation with a particular religious or political organization. See Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2007). The constitution also protects the freedom of intimate association, which “protects the right to enter into and maintain certain intimate human relationships.” Id. (internal quotations omitted). Developing case law suggests that School Districts may regulate these off campus student-teacher relationships through carefully drafting policies. In Borden v. School Dist. of Tp. of East Brussiwck, 523 F.3d 153 (3rd Cir. 2008) the Court upheld the school’s ban on the coach praying with his football team. The coach claimed that the ban violated his right to associate with his players. The Court ruled that the coach could not state a Freedom of Association claim based on his association with his football players as individuals.
In analyzing whether rules banning certain personal affiliation violate the Freedom of Intimate Association, courts apply a “rational basis test” to determine if there was a rational relationship to a legitimate government interest. A rational basis test is appropriate where the regulation does not prohibit or unduly restrict the formation of a particular type of relationship (e.g., marriage or friendships), but only prohibits the formation of such a relationship with a limited group of people. For example, courts routinely uphold prohibitions on prison guards associating with former inmates and their families. While such a restriction effectively prevents formation of certain associations, e.g., marrying a former prisoner, it would not unduly limit the ability of a prison guard to marry, in general. See Ahers v. McGinnis, 352 F3d 1030, 1040 (6th Cir. 2008). Likewise, prohibiting teachers from forming personal relationships with students outside of school by prohibiting social networking, texting and instant messaging would not unduly restrict the teacher’s ability to form friendships, generally, but only with a small portion of the total population, i.e., students at their school.
Schools that want to implement such a policy can likely identify rationale basis for implementing guidelines which advise teachers not to communicate with students through text, IM or social networking sites. Communication with students in this manner has the potential of creating perceptions of privilege or favoritism which can inhibit a teacher’s effectiveness in the classroom. The policy also encourages teachers should avoid the appearance of impropriety that might damage their own professional standing. If school districts contemplate drafting such a policy, the District should be careful to ensure that the policy, as written and as applied, does not violate a teacher’s Freedom of Expressive Association. However, a carefully drafted policy can be constitutional and set clear standards regarding the maintenance of appropriate professional relationships.
If you have questions or would like additional information on this topic, please contact your Davis & Kuelthau attorney.