Constitutional and Legal Issues

Due to strong “encouragement” by the U.S. Federal Government, through the Children's Internet Protection Act, when U.S. school kids use the Internet at school, decisions about the kinds of material they can access is primarily under the control of private filtering companies, whose decision-making has not undergone any public review. Under CIPA, school officials receiving federal funds for technology must filter or block student access from material that is obscene, pornographic, or considered harmful to minors.

Photo ©2005, J. McKenzie

When school officials select a product and configure it for use in school, they have very limited information on the kinds of sites that are actually blocked under specific categories. Most of the problem areas related to the kinds of information that is unpopular or controversial in our society. This includes: political advocacy groups; information related to sexual identity or orientation; and earth-based or non-deity based religion (e.g. Pagan and WICCA sites). Knowing that such material is unpopular or controversial, filtering companies, whose strongest supporters tend to be conservative, appear regularly to block such material.

Do students have the right to access material that may be unpopular or controversial?

Clearly, yes. The leading case on student's rights to access of information is Board of Education, Island Trees Union Free School District No. 26 v Pico, 457 US 853 (1982). This case involved a situation where several school board members went to a conservative parent's group meeting where they received a list of books that this group considered inappropriate for a school library. Overriding the district's practices on material selection and review, the board directed that the books be removed. The U.S. Supreme Court held that the school official's actions were a violation of the students' constitutional rights of access to information. Specifically, key statements made by the courts were:

(T)he state may not, consistent with the spirit of the First Amendment, contract the spectrum of available knowledge. In keeping with this principle, we have held that is a variety of contexts the Constitution protects the right to receive information and ideas....

In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. ...[School] officials cannot suppress 'expressions of feeling with which they do not wish to contend.'…

(J)ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active participation in the pluralistic, often contentious society in which they will soon be adult members. ...

(S)tudents must always be free to inquire, to study and to evaluate, to gain new maturity and understanding. The school library is the principle locus of such freedom. ... In the school library, a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. ... (substitute “the Internet” for “school library”)

In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Such purposes stand inescapably condemned by our precedents.

So if school officials cannot remove books from a school library simply because they dislike the ideas contained in those books, how is it that is should be considered OK for a filtering company to block unpopular or controversial material, to fail to fully disclose what it is they are blocking, or block unpopular or controversial material in the same category as material that no responsible adult would want a teen to access?

Or how is it that it should be considered OK for school official to configure a filtering product in a way that blocks access to material that may be unpopular or controversial?

One big problem is that no one really knows what the filtering companies are blocking. So school officials are making decisions based on very limited information. All of the important information about what the filtering product is blocking is considered a protected trade secret.

The Supreme Court addressed the importance of local school control in Pico as follows.

The Court has long recognized that local school boards have broad discretion in the management of school affairs. ... (B)y and large, "public education in our Nation is committed to the control of state and local authorities," and that federal courts should not ordinarily "intervene in the resolution of conflicts which arise in the daily operation of school systems." ... (W)e have 'repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools.'

The above statement was in the plurality opinion (the expression of the winning side). But the dissent went even further. The primary reason offered by the justices who dissented from the decision in Pico was deference to local school authorities for making decisions. The dissent stated:

We can all agree that as a matter of educational policy students should have wide access to information and ideas. But the people elect school boards, who in turn select administrators, who select the teachers, and these are the individuals best able to determine the substance of that policy. ... (L)ocal control of education involves democracy in a microcosm. In most public schools in the United States the parents have a large voice in running the school. Through participation in the election of school board members, the parents influence, if not control, the direction of their children's education. A school board is not a giant bureaucracy far removed from accountability for its actions; it is truly "of the people and by the people." A school board reflects its constituency in a very real sense and thus could not long exercise unchecked discretion in its choice to acquire or remove books. If the parents disagree with the educational decisions of the school board, they can take steps to remove the board members from office.

Given this as precedence, how is it that school officials can or should delegate such responsibility for determining what students can and cannot access to a filtering company that protects all information about what it is blocking? There is simply no public accountability.

There are a number of problems in this area related to decisions made by the companies and decisions made by school officials. Concerns about decisions made by filtering companies include:

1. Not clearly describing what they are blocking or they are describing what they are blocking in language that would lead most administrators to decide to block the category. This is most evident in the descriptions for categories related to "cult, "occult," "new age." Let's look at the language describing one of these categories:

“Sites that promote or offer methods, means of instruction, or other resources to affect or influence real events through the use of spells, curses, magical powers, satanic or supernatural beings.” Sonicwall Cult/Occult

This category is clearly blocking access to constitutionally protected pagan or WICCA religious information. Assuming the schools are not blocking access to Christian or Jewish sites, blocking these categories is resulting in limiting student access to religious information they have a constitutional right to access.

2. Lumping together sites that most responsible adults would not want teens to access with sites that they should be able to access. The most blatant lumping is in the Symantec Sex/Sexuality category:

Sites dealing with topics in human sexuality. Includes sexual technique, sexual orientation, transvestites, transgenders, multiple-partner relationships, and other related issues.

Most school officials would not want students accessing sites on sexual technique or multiple-partner relationships, so they would be likely to choose to block this category.

3. There appears to be some bias on the part of filtering companies in blocking unpopular or controversial material presented by those with more liberal, progressive viewpoints, and not blocking sites that present conservative viewpoints or information that is supported by conservatives. The blocking of http://nochildleft.com illustrates this phenomenon. I have done some investigation of Symantec's blocking in their Sex/Sexuality category and have found that the company is blocking many of the key sites that provide guidance, support, and advocacy for teens around sexual identity issues, such as GLAAD and GLSEN. But they do not block the conservative Christian sites that are objecting to the “homosexual agenda.”

4. Creating and describing a category in such a way that a school official might, with a straight face, argue that a decision to block is justified. 8e6 Technologies Lifestyles category accomplishes this:

Sites that contain material relative to an individual's personal life choices. This includes sexual preferences, cultural identity, or organization/club affiliations.

Categories such as this allow school officials to state: "We are not specifically blocking access to information on sexual orientation. We are blocking access to all lifestyle-related sites."

There are also problems with what schools are doing.

1. Who is making the decisions about what categories to block and on what basis?
2. Has this decision been left to the tech director, who likely has not had an educational law class so may be unaware of issues related to a student's constitutional right to access information?
3. Have categories been blocked based on a desire to avoid controversy?
4. Or has the school official taken advantage of the grouping done by the company to block categories that are likely to be more controversial.

The problem with the blocking of http://nochildleft.com falls squarely under this concern.

The Sonicwall category description for Political/Activist Groups reads:

Sites sponsored by or which provide information on political parties, special interest groups, or any organization that promotes change of reform in public policy, public opinion, social practice, or economic activities.

Clearly, this category includes vast amounts of material that students have a constitutional right to access. A decision by school officials to block this category would be unconstitutional. How can schools prepare “students for active participation in the pluralistic, often contentious society in which they will soon be adult members” (quoting Pico) if they are blocking access to this kind of material?

Unfortunately, far too many school officials have bought into the “false security” that filtering software will prevent students from accessing inappropriate material. (If you think that filtering technology actually works, I suggest you do a little test: First, get approval from a school administrator. Then try to access some porn sites. Do a search on an appropriate term. Then go to about page 30 of the search return and see how many of these sites you can access. Or try using the “translate this page” feature on Google.)

It is only a matter of time before a school district gets brought into court for selecting or configuring filtering software product in a manner that is restricting student access to constitutionally protected material. Perhaps then, we can finally get around to the establishment of policies and procedures that seek to empower students with the knowledge, skills, and values necessary to make safe and responsible choices independently when they use the Internet at school.