Seeking Counsel: The Trouble with Texting Teachers
By Susan Tudor Crowther
We all know that texting while driving is dangerous. However, another menace is lurking out there -- inappropriate texting between educators and students.
Recently, a school administrator commented that it seems that more and more teachers are reported for sexual relationships with students. This person wondered whether these incidents really were increasing, or if they were just getting caught more frequently.
The former may be true but the latter definitely is, too. The reason is largely due to the new ways in which we communicate. Now, more than ever, teachers are communicating with students via text messages, and it is not always about school.
Such texting often starts about school and may become playful as the teacher bonds with his or her students. Sometimes, though, these communications go far afield of appropriateness, even to the point of discussing inappropriate actions.
Electronic paper trails
Teachers soliciting sex from students is not new. However, when it is done via electronic means, it creates its own electronic paper trail. Because of this, there are more opportunities for a successful case being made against the teacher, since it is not based solely on conflicting testimony. In fact, parents frequently are the ones who discover the crime when they check their child’s cell phone messages.
In one case, a parent was concerned because her child’s cell phone bill showed that she was receiving texts during the school day, when instruction should have been occurring. The parent checked her child’s phone to see with whom she was communicating during that time.
She discovered that her daughter was having conversations of a sexual nature with her instructor during the school day. Justifiably, action was taken against the teacher’s employment and her teaching certificate.
It is not always a parent who discovers the messages, though. In a case in Alabama, a teacher, who was also a soccer coach, took a camping trip with a male member of her soccer team. They stopped at a store to get camping supplies. The student was subsequently arrested after allegedly shoplifting condoms.
While in custody, his cell phone alerted that he had incoming messages. The police officer lawfully checked the phone to see who was texting him. The officer was concerned that the message might be coming from an accomplice still in the store.
Through questioning, the police determined that it was the boy’s teacher who was texting him. The texts revealed that the teacher had earlier discussed the possibility of a sexual encounter that evening during the camping trip. It should be noted that this camping trip was sponsored by the school system and was for “team building.” On this occasion, only one student was attending.
Ultimately the police were faced with the decision of whether to charge the teacher with sexual contact with a student by electronic means under a new law in Alabama. The parents did not want to press charges, but the teacher still faced possible revocation of her teaching certificate by the Alabama Department of Education. The incident demonstrates the necessity for training on boundary issues for teachers.
Electronic communications policy
While it seems logical that teachers would only be discussing schoolwork with students, sometimes the communications go beyond this topic. Therefore, employees should be trained on proper boundaries between them and students. Once a teacher sees a student as a friend, the lines become blurry and the environment is ripe for conversations to go beyond what is appropriate for a teacher and student.
Teachers should not discuss their personal lives with students, and especially not their dating or married life. If teachers are struggling with these issues, they should be encouraged to talk with another adult about it rather than with students.
In order to combat these types of scenarios, it is important to have a strong electronic communications policy in place. Should teachers communicate with students outside the classroom via cell phone at all? Are there legitimate reasons for this? Or would it be better for the communications to occur with the parent or guardian?
Additionally, it is good for school systems to have policies that address the appropriate use of social media sites as well. Some school systems have policies prohibiting students and teachers from being friends on Facebook and other sites to avoid opportunities for inappropriate communications to occur.
Often parents will bring the inappropriate messages on their child’s device to the attention of school personnel. However, in the event that a teacher’s electronic device might have to be searched, it is important to have a written appropriate use policy signed by the teacher. The policy should state that the teacher has no expectation of privacy for information stored on school-owned equipment.
This will help in the event of a challenge under the Fourth Amendment. Furthermore, there should be set procedures for dealing with equipment that you suspect has been used for the transmission of images. Before conducting the search, contact your school board lawyer and local law enforcement officials to ensure that the search and seizure, if needed, is conducted properly.
In fact, you might want to have law enforcement officials conduct it to avoid the possibility of a legal challenge, especially if there is the possibility that images considered child pornography might be discovered. They also will know the procedures for the proper seizure of the phone and documenting a chain of custody for evidence purposes.
Proceed with caution
These precautionary measures especially apply if the electronic device is personally owned by the teacher. In that scenario, teachers have more of a reasonable expectation of privacy in their text messages than for those found on school-owned equipment. This means that the Fourth Amendment applies, prohibiting an unreasonable search and seizure.
While courts have found that a search is reasonable at its inception if it is suspected that inappropriate text messages were sent to a student, it can get tricky from there. For example, the courts have paid particular attention to whose messages were searched once the search began. Did the person conducting the search go beyond the scope of the search by searching for images or contacts on the phone?
For these reasons, you will need to proceed cautiously, with advice from your legal counsel and possibly police involvement.
Texting is a wonderful way to get messages to people quickly. However, like any form of communication, it can be misused. To help teachers know what is an appropriate means of communication with students, have policies in place setting limitations. Enforce these policies and take the appropriate action if inappropriate messages are suspected.
Also, help teachers to understand proper boundaries so that these issues are avoided. Remind teachers that students are in a subordinate position to them. Through these guidelines, hopefully the school system and the teachers themselves can avoid legal issues and emotional harm to students.
Susan Tudor Crowther (email@example.com) is the associate general counsel and assistant attorney general of the Alabama Department of Education and a member of NSBA’s Council of School Attorneys.
For more information and articles on school legal issues, go to www.asbj.com/TopicsArchive/SchoolLawArchive.