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Free Speech Student Access to Information

Q: How is the Internet like the school library?
A: It opens the door to a world of knowledge
Q: How is the Internet not like the school li-brary?
A: No library book selection committee

Legal Analysis

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, 457 US 853 (1982). 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 court's ruling must be read in light of the facts of the case -- the actions of the board were obviously politically motivated, the decision affected the removal of books that had already been acquired, and the books were present in a library and thus were optional, not compulsory, reading. 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.

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(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.

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(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. Id. at 866-896 (citations and quotations omitted).

The Court stated that it did not deny that the school board had a "substantial legitimate role to play in the determination of school library content, but that if the intent of the board was to deny access to ideas with which the board disagreed, removal of material was inappropriate. Id. at 869. The message of Pico is that it is appropriate for education officials to exercise good faith educational judgment in the selection of materials, but not to attempt to suppress unpopular ideas.

Is Pico directly applicable to student's use of the Internet? On one hand, the language of the Court certainly makes a strong case for this -- try substituting the word "Internet" for the word "library" in the above passage. On the other hand, there is a clear difference in the manner in which materials are selected for use in a school library by professional educators acting under guidelines established by the board and the manner in which materials are made available on the Internet.

Trying to translate the standards for textbook or library book selection into a provision in an Internet Use Policy that will clearly convey to students where the boundaries for acceptable access are will likely present substantial difficulties. Thus, the challenge for districts is to develop a standard for access that is based on educational judgment, not a desire to suppress unpopular ideas, and that provides clear guidance to students about what they are and are not to access.

District Policy on Access

Most district will include provisions in their policy restricting access to material that is profane or obscene (pornography), advocates or condones the commission of unlawful acts (illegal) or that advocates or condones violence or discrimination toward other people (hate literature). However, there may be times when in the context of legitimate research the above restriction is too limited. For example, there may be circumstances where, with appropriate teacher guidance and parental approval, students should be allowed to investigate hate literature sites so that they become better prepared to recognize hate literature for what it is and deal effectively with it.

The district cannot be expected to enforce a wide range of family or social values in the kinds of material that students should be allowed to access. The district should provide every parent with information about the district policies and provide an option for parents to request that their child not be allowed access through the district system. Providing students with access to the Internet presents an excellent opportunity to encourage parents to have a discussion with their child about their family values and what their expectations are for their child's activities on the Internet.

The district will also want to include a process for students to follow if they inadvertently access material that is prohibited. This will protect a student from being inappropriately disciplined. If students have dial-up access from home, parents will need to bear the responsibility to monitor their student's actions.

There are many materials on the Internet that would not fall within the "inappropriate material" restrictions of an Internet use policy that would still be inappropriate in school because they are not educationally relevant. Restrictions against inappropriate material covers that material which should, because of its very nature, never be accessed. A violation of this restriction should be treated as a policy violation. Other material should not be accessed because it has no educational value. This issue probably does not rise to the level of a policy violation unless there are repeated incidents of accessing material that is clearly not of educational value. Admittedly, there are many aspects of this issue that fall within a very murky gray zone.

The best defense is a good offense -- Teachers who are well prepared to incorporate the use of the Internet into their curriculum and who provide exciting Internet-based learning opportunities will focus their student's attention on all of the wonderfully-positive resources available through the Internet. When all of the computers in the computer lab are kept busy with students doing exciting classwork projects, the opportunity for misuse is substantially reduced. Students should not be provided with access to the Internet until their teachers are prepared to competently guide their Internet exploration activities. Districts that fail to provide sufficient professional development opportunities for their teachers, including the time necessary to incorporate the use of Internet resources into instruction, are the ones that will simply have more problems with students accessing inappropriate material.

Filtering Software

Many school districts are choosing to install filtering software as a strategy to restrict access to material that is considered inappropriate. Filtering software does an adequate job of reducing the potential for inadvertent access to inappropriate material. Filtering software will slow down a teenager who is intentionally seeking inappropriate material, making the activity more of a challenge. Schools that choose not to install filtering and which have good policies, exciting educational uses of the Internet, and effective monitoring generally report that they do not have problems with students intentionally trying to access inappropriate material.

Reliance on filtering software does not prepare a young person for the inevitable time that he or she will have unsupervised and unfiltered access to the Internet. Schools that rely on filtering frequently do not address the search skills that young people can use to avoid inadvertently accessing this kind of material, nor do they discuss issues around the darkside of the Internet and the need to make responsible choices. Schools that rely on filtering can become complacent about monitoring, thus leading to other problems. Sometimes the choice to install filtering reflects inadequate dedication to professional development for teachers.

There are potential constitutional problems related to the installation of filtering. There are no cases that directly address this issue. The Pico case, and a recent case involving a public library, Mainstream Loudoun v. Board of Trustees of the Loudoun County Library (U.S. District Court, Eastern District of Virginia, Nov 28, 1998) provide a basis for analysis.

In Loudoun, the court found that the library had "entrusted all preliminary blocking decisions -- and by default, the overwhelming majority of final decisions -- to a private vendor" that "has refused to provide the criteria it uses to block sites" and whose blocking decisions are not based on "any legal definition of obscenity or even the parameters of the (library's) policy." This delegation, the court determined, was impermissible.

There are no cases on point related to filtering in schools. However, in 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.

Filtering companies provide only limited information about their criteria for blocking and do not release lists of the sites that they have blocked. Some, but not all, filtering companies have close relationships with conservative religious organizations which appears to guide their filtering decision-making, but the companies do not disclose this bias in their advertising. It remains a major question of concern whether districts legally can or should turn over the responsibility of determining what their students can or cannot access to for-profit companies who do not fully disclose the basis upon which they are making their decisions.

Recommendations

  • Distinguish two types of material that should not be accessed:

    • Material that is prohibited -- Profane or obscene (pornography), advocates or condones unlawful or dangerous acts, advocates or condones violence or discrimination towards other people (hate literature).

    • Material that does not have an educational purpose.

  • Provide staff monitoring of students, with back-up technical monitoring.

  • Allow exceptions to prohibited material in cases of legitimate research.

  • Teach student to self-monitor to determine appropriateness of material and activities.

  • Establish policy that students needing access for class projects have highest priority.

  • Establish a process for students to notify staff if they mistakenly access prohibited material.

  • Inform parents that the district cannot monitor in accord with a multitude of different family values. Encourage parents to discuss their values with children.

  • If the school is having problems with inappropriate access the first issue to investigate is how prepared the teachers are to provide effective educational classwork using the Internet. The second issue to investigate is monitoring practices.

  • If filtering software is used, exercise caution about the selection and configuration of the product.

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