Students' Rights of Access to Information

In a small school in Winter, Wisconsin, 16 year old Burklin Nielsen was using the Internet during after school computer lab to look up information on the Wiccan religion. She was told by a lab monitor that she could not look at such information. The student and her family filed a complaint with the state Department of Public Instruction. The matter was resolved when the Superintendent wrote a letter to the student admitting that an error had been made .

The issue of students' rights to access information and ideas may arise in two situations:

  • Instruction and Supervision. District staff may indicate to a student whether or not the student can view certain material or use certain material in the context of class work. If the staff restricts access to information based on viewpoint discrimination, such as the example set forth above, this would be a violation of the student's rights.

  • Technology Protection Measure. A district may select, configure, and/or implement the use of a Technology Protection Measure in a manner that imposes on students' rights to access information within an educational environment.

What are Students' Rights of Access to Information?

The leading case student's right to access information is the case of Board of Education, Island Trees Union Free School District No. 26 v Pico . The Pico case involved a school board's decision to remove some books from the school library after receiving a list of "objectionable" books from a politically conservative organization. The board failed to follow district procedure in the determination of the appropriateness of the materials for optional reading in the school library. In this context, the Court stated:

"(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.

(W)e do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of (the school board) to remove books from their libraries. ...

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ... If there are any circumstances which permit an exception, they do not now occur to us. ...

This doctrine has been reaffirmed in later cases involving education. ... (T)he First Amendment ... does not tolerate laws that cast a pall of orthodoxy over the classroom ... .

With respect to the present case, the message of these precedents is clear. (The school board) rightly possess(es) significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. ... Our Constitution does not permit the official suppression of ideas. ...

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 .

There are potential constitutional problems related to the installation of Technology Protection Measures in schools, especially those products that Block by URL Lists. A recent case involving a public library, Mainstream Loudoun v. Board of Trustees of the Loudoun County provides an excellent basis upon which to evaluate district protections of student rights.

In Loudoun, the public library had placed blocking software on all computers. This decision was challenged in court by residents in the community and owners of web sites that were blocked, with support from free speech advocacy groups. The Court found that the implementation of the blocking software on all computers in the library violated the constitutional rights of library patrons to access material and ideas. Issues that were raised in this trial have direct application to the school environment. Clearly, school officials have greater discretion in the determination of the appropriateness of material for students, however, as established in Pico, this discretion may not be exercised in a manner that fails to demonstrate appropriate respect for the First Amendment rights of students. In Loudoun, the court addressed the issue of prior restraints, a situation in which the government has control over the access of individuals to information.

Preventing prior restraints of speech is an essential component of the First Amendment's free speech guarantee. ... "Permitting government officials unbridled discretion in determining whether to allow protected speech presents an unacceptable risk of both indefinitely suppressing and chilling protected speech." ... In ..., the Fourth Circuit found that

[t]he guarantee of freedom of speech afforded by the First Amendment is abridged whenever the government makes the enjoyment of protected speech contingent upon obtaining permission from government officials to engage in its exercise under circumstances that permit government officials unfettered discretion to grant or deny the permission. . . . Such discretion exists when a regulation creating a prior restraint on speech fails to impose adequate standards for officials to apply in rendering a decision to grant or deny permission or when a regulation fails to impose procedural safeguards to ensure a sufficiently prompt decision.

[The following procedural safeguards have been required by the Supreme Court:] "(1) any restraint prior to judicial review can be imposed only for a specific brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court."...

In other words, even unprotected speech cannot be censored by administrative determination absent sufficient standards and adequate procedural safeguards. ...

It is undisputed that the Policy lacks any provision for prior judicial determinations before material is censored. ...We find that the Policy includes neither sufficient standards nor adequate procedural safeguards. As to the first issue, the defendant's discretion to censor is essentially unbounded. The Policy itself speaks only in the broadest terms about child pornography, obscenity, and material deemed harmful to juveniles and fails to include any guidelines whatsoever to help librarians determine what falls within these broad categories.... There are no standards by which a reviewing authority can determine if the decisions made were appropriate.

The degree to which the Policy is completely lacking in standards is demonstrated by the defendant's willingness to entrust all preliminary blocking decisions -- and, by default, the overwhelming majority of final decisions -- to a private vendor, Log-On Data Corp. Although the defendant argues that X-Stop is the best available filter, a defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity. Such abdication of its obligation is made even worse by the undisputed facts here. Specifically, defendant concedes that it does not know the criteria by which Log-On Data makes its blocking decisions. See Bradshaw Dep. ... (stating that LogOn Data has refused to provide defendant with the criteria it uses to block sites). It is also undisputed that Log-On Data does not base its blocking decisions on any legal definition of obscenity or even on the parameters of defendant's Policy. See Bradshaw Dep. ... (agreeing that "there is neither any attempt nor the ability by [Log-On Data] to apply a legal test"). Thus, on this record, we find that the defendant has not satisfied the first prong of prior restraint analysis, establishing adequate standards.

In addition, the Policy also fails to include adequate procedural safequards. The three minimum procedural safeguards required are (1) a specific brief time period of imposition before judicial review; (2) expeditious judicial review; and (3) the censor bearing the burden of proof. The Policy, even including the alleged protections of the unofficial unblocking policy, is inadequate in each of these respects. First, the Policy itself contains no provision for administrative review, no time period in which any review must be completed, and no provision for judicial review. ... Under the unofficial unblocking policy,, a library patron who finds herself blocked from an Internet site she believes contains protected speech is required to request in writing that the librarians unblock the specified site. ... If the librarian determines that the site does not fall within the Policy's prohibitions, he will unblock it, although there is no systematic way in which this is done. There is no time period during which this review must occur and there is no provision for notifying the requesting patron if and when a site has been unblocked. ...

The second required procedural safeguard is expeditious judicial review after the administrative decision is made. There is no provision whatsoever in the Policy for judicial review of any blocks.... This makes the question of who carries the burden of proof in any judicial review proceeding, the third required procedural safeguard, moot. Because the Policy has neither adequate standards nor adequate procedural safeguards, we find it to be an unconstitutional prior restraint .

How many districts have established an environment where there are no clear standards regarding material that students may or may not access, where all preliminary blocking decisions and the overwhelming majority of final decisions have been entrusted to a private vendor without full knowledge of the criteria by which this vendor makes its decisions, and with no mechanism in place to ensure rapid and fair review of the blocking actions of the product?

Recall that the case of Pico, the Court was especially concerned that the list of 'books that should be banned' had been provided to the board members by a conservative political organization. The Court reaffirmed the right of the board and school officials to make decisions about materials to provide to students. In fact, the principal objection set forth in dissenting opinion in the case argued strenuously that school board officials, administrators, and teachers should be responsible for making decisions about the appropriateness of certain material for students, not the courts.

Least Restrictive Alternative

The library in Loundon also argued that use of the filtering software was the least restrictive alternative. The court addressed this issue as follows:

Whether Less Restrictive Means Are Available

Defendant alleges that the Policy is constitutional because it is the least restrictive means available to achieve its interests. The only alternative to filtering, defendant contends, is to have librarians directly monitor what patrons view. Defendant asserts this system would be far more intrusive than using filtering software. Plaintiffs and intervenors respond that there are many less restrictive means available, including designing an acceptable use policy, using privacy screens, using filters that can be turned off for adult use, changing the location of Internet terminals, educating patrons on Internet use, placing time limits on use, and enforcing criminal laws when violations occur.

...(T)he Supreme Court noted that "[t]he Government may regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest ."

There are newer Technology Protection Measures coming onto the market that provide a less restrictive alternative to the products that are in most schools. Should these products be considered a less restrictive alternative?

Immunity

Neither CIPA, nor any other law, will provide immunity to district against a claim that it has selected, configured, or manages its Technology Protection Measure in a manner that is restricting student access to constitutionally protected information or ideas. The public library in Loudoun sought to dismiss the action based on 47 U.S.C. § 230(c)(2)(A) . I the final opinion the court stated:

Defendant has requested that we reconsider our previous finding that it is not immune from this litigation pursuant to a provision of the 1996 Communications Decency Act granting absolute immunity to good faith users of filtering software. See 47 U.S.C. § 230(c)(2)(A). In our previous opinion, we found that § 230 provides immunity from actions for damages; it does not, however, immunize defendant from an action for declaratory and injunctive relief. We see no reason to stray from our earlier decision, which is the law of this case. If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so .

The Potential for Liability

The primary focus of free speech advocates at the time of the writing of this document is the case filed by the American Civil Liberties Union and the American Libraries Association that is challenging the constitutionality of CIPA in the context of public libraries. This case is scheduled to be heard in early 2002. Evidence presented in this case will further demonstrate the concerns related to over-blocking. After this case is tried, free speech advocacy groups may seek other means to address concerns about over-blocking. It is likely that school districts that have not selected, configured, and implemented their Technology Protection Measures in a manner that respects students' First Amendment rights of access to information and ideas will come under increased scrutiny.

Districts must seek to implement CIPA in a manner that does not interfere with the constitutional rights of students to receive information and ideas. The Internet is considered by some to be the world's greatest library. Schools do a substantial disservice to students if they allow a private company to make the sole determination about the availability of access to materials in this library. Districts should not dismiss the importance of student's First Amendment rights with a rationalization that since students have access to more information than they did before the Internet, the fact that they are prevented from getting to some material is of no concern.