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Kids surfing the Net at school: what are the legal issues?


The availability of Internet access in the nation's public schools has risen dramatically. Government surveys estimate that the percentage of public schools with at least one computer connected to the Internet rose from 35 percent in 1994, to 65 percent in 1996.(1) Despite the criticism of allowing school children to use the Internet,(2) the percentage of Internet-connected schools is likely to continue increasing at a rapid pace throughout the rest of the decade because of substantial federal, state, and local government spending initiatives.

Federal government efforts include a two billion dollar program to help schools become wired and obtain Internet access.(3) Federal efforts are being driven by President Clinton's goal to have every 4 classroom connected to the Internet by the year 2000.(4)

At the state and local government levels, legislative leaders and public school officials continue to press for technology funding. Many of the funding initiatives have included large dollar amounts for school rewiring, which has been necessary to link school computers to the Internet.(5)

California is one of many states making a big push in computer spending. In January of 1997, California's governor proposed a four-year, one billion dollar program to upgrade computer technology in the state's public schools.(6) Subsequent spending proposals by the California governor reflect a continued commitment to public school computer spending.(7) Other states and local districts throughout the country are undertaking similar efforts.(8)

Proponents of Internet use as an educational tool claim that students will benefit from having online access to library databases, outstanding graphics on the World Wide Web, and educational networks that can link classrooms around the world.(9) However, the ability to access virtually unlimited resources is both a benefit and burden to schools. The burden arises because the Internet, unlike traditional educational materials such as books, filmstrips, or even computer software learning programs, is impossible to completely censor and control. This loss of control, combined with the known presence of pornographic and other inappropriate information on the Internet, means that school children may either, deliberately or accidentally, access highly inappropriate information. Parental response to such access is likely to range from indifference to outrage.

This Note focuses on several areas of possible liability that public schools face once they hook up to the Internet. The first section examines the materials that school-age children are exposed to when they log on to the Internet. Section one also looks at recent legislative and commercial efforts that attempt I to restrict the flow of Internet information to children.

The second section includes possible legal actions that parents may take if a child, while at school, has been exposed to inappropriate information on the Internet. Parents may seek to enjoin their child's school from allowing students to continue using the Internet. Equitable relief has been sought by parents in cases where schools exposed students to controversial instructional matters such as sex education, AIDS education, and condom distribution.(10) Additionally, this Note also discusses the possibility of individual parents or a parent group filing a negligence suit for redress against a school district in this type of Internet access case.

Section three of this Note focuses on liability issues that may arise if schools take disciplinary action against students accused of using the Internet improperly. Disciplinary issues will likely arise if a student or group of students access or disseminate inappropriate materials. Both actual and hypothetical situations involving school disciplinary actions are analyzed to illustrate the issues that courts may face if called upon to resolve Internet-related discipline disputes.

Section four touches on broader issues raised by Internet use in the public schools: (1) whether Internet use by schools might be found to interfere with parents' rights; (2) whether equity issues will produce litigation since poorer school districts face greater challenges in providing and maintaining computer systems that link students with the Internet; and (3) whether privacy or free speech issues will arise given attempts by some schools to restrict student speech on the Internet.

Given the controversial information students can access online, the issue of parents' rights may emerge as a significant factor in some jurisdictions. This Note examines several lawsuits initiated by parent groups where parents sought to influence a school's teachings on certain morality-based issues, such as sex education.(11) Parents have sought to restrict information which would otherwise flow to their children either directly through instruction by teachers, or indirectly through instructional materials, such as books or audio-visual materials. Since the Internet is a new medium for the delivery of ideas, it is anticipated that some parents will want to influence that medium as well.

The equity in spending issue has already emerged as an important concern because of the large investment required to purchase and maintain computer equipment. Two primary factors that have brought the equity issue into the spotlight are: (1) the President's goal of equipping all schools with Internet access by the year 2000,(12) and (2) state spending equalization laws which affect school districts inmost states.(13)

The imposition of schools' restrictive policies regarding student speech has given rise to free speech and privacy issues.(14) Some schools are also monitoring student use of the Internet, which raises separate, but equally thorny, privacy issues.(15)

The final section of this Note examines several steps that schools may take to protect themselves against the liability that may arise due to Internet access. Special filtering devices and Internet use agreements are explored in detail.


A. Students' Exposure on the Internet

Control is the feature that distinguishes students' use of the Internet from their use of other computer-based educational software. With traditional software, such as basic learning programs or online encyclopedias, the universe of available information or possible applications is known. However, the Internet makes available a plethora of information that is unknown and introduces interaction with others that is often spontaneous. As a result, students will have access to some inappropriate materials. Examples of inappropriate information readily available to users include "[n]umerous Web pages [which] actively promote sexually explicit material, ranging from fairly harmless pinup photography to disturbing images of bondage. Many other pages promote drugs and techniques for getting high. And several busy newsgroups; provide energetic forums for spreading bigotry and calls to violent attack."(16)

Beyond mere exposure to inappropriate materials, the Internet enables children to become active online participants. Easily accessible chat rooms, for example, give children opportunities to participate in adult conversations. Problems can arise when children inadvertently or purposely release personal information about themselves to online acquaintances. Fears about adults making underage contacts or of pedophiles stalking unsuspecting child victims on the Internet are no longer considered ridiculous.

In December of 1996, for example, a fourteen-year old teenager from suburban Rochester, New York disappeared from home after meeting a man online.(17) The girl disappeared with a twenty-two year old serviceman she had met in an Internet chat room devoted to vampire fantasies.(18) The FBI, having ascertained that the two traveled together voluntarily, said, "[w]hile there have been scattered reports of Internet-linked relationships and crimes, what is striking about [this] case is [the girl's] young age."(19)

The executive director of the New York chapter of the National. Center for Missing & Exploited Children, became involved in the search for the fourteen-year old girl and noted that, "[a]n unhappy teenager may find a sympathetic ear on the Internet, yet feel a sense of control online that may not exist in real life--and that can be dangerous."(20)

A similar example of a man using the Internet to make illegal sexual contacts with children was reported in February of 1997, after the man was arrested for soliciting and receiving pornographic pictures from several underaged girls that he met online.(21) The investigation began when a New Jersey mother contacted local authorities after finding physical evidence of her daughter's online relationship.(22) Another story involving a teenager and his Internet acquaintance was reported in 1995, when parents of a fifteen-year old runaway boy reported that they believed their son "headed for rich promises made by a man he met in a gay-and-lesbian chat room available on America Online."(23)

Other nonsexual, but still serious, incidents involving children and the Internet have occurred over the last few years. For example, in April 1995, three junior high school students ranging in age from eleven to thirteen were arrested for throwing a homemade fire bomb at a closed school building.(24) The three teens apparently paid a fellow student five dollars for a bomb-making manual down-loaded from the Internet.(25)

Following the April 1995 bomb-making incident, a reporter went online to see just how easy it would be to find bomb-making information.(26) Within ten minutes the reporter found two bomb making manuals which included "easy-to-understand instructions for building everything from multi-staged rocket-bombs to exploding light bulbs."(27)

There are several other accounts of children making bombs from Internet information. In early 1996, for example, three thirteen year-old youths from upstate New York were arrested for conspiring to commit criminal mischief when police uncovered their bomb-making efforts.(28) The students reportedly obtained the bomb-making information on the Internet.(29) The three youths were suspended from school and faced up to eighteen months in a state-run detention home.(30)

In a separate incident, two eighth graders were arrested after placing a home-made bomb, made from instructions obtained on the Internet, in the classroom of a teacher whom they disliked.(31) The teens placed the explosive device in a ceiling panel and rigged it to detonate when the light switch was turned on.(32)

In addition to the problem of runaways and bomb-making, there are many situations in which children have been disciplined by schools for inappropriate Internet access and use. In 1995, for example, a Washington state high school senior "posted a page on the Internet [which gave information] about his high school, [and] referr[ed] ... readers to some on-line sexual material."(33) The student's school responded by withdrawing its endorsement of the student for a $2000 National Merit scholarship.(34)

In another early case of Internet abuse, a California school disciplined four of its students during the 1994-95 school year for attempting to download Playboy Magazine photographs and using vulgar language in a chat room.(35)

A more recent problem of student Internet abuse took place at a South Carolina high school in late 1996, when a student put computer viruses on school computers and "placed racial epithets about school officials on his World Wide Web site."(36) The student was suspended and then transferred to another school.(37)

In early 1997, the U.S. Secret Service released information that in separate incidents, it investigated several students for sending death threats to President Clinton via the Internet.(38) Many of these messages were sent by students on school computers.(39) Although most messages were sent inadvertently, or as pranks, the Secret Service stressed that threats against the President are always taken seriously.(40)

B. Legislative and Commercial Efforts Aimed at Restricting Exposure

There have been many attempts by legislators and industry leaders to block out offensive online materials. At the federal level, Congress responded by passing the Telecommunications Act of 1996.(41) Section V of this law, known as the "Communications Decency Act of 1996," or the "CDA," was designed to restrict certain offensive communications over computer networks.(42) Under the CDA it was a criminal offense to knowingly transmit such material over the Internet to persons under eighteen years of age.(43) While this new law would likely have reduced inappropriate transmissions to children known to be of school-age, the United States District Court of the Eastern District of Pennsylvania, in ACLU v. Reno,(44) ruled the CDA unconstitutional.(45) The United States Supreme Court upheld the eastern district's ruling in 1997.(46)

The district court in Reno granted a preliminary injunction against the enforcement of the CDA, on grounds that it violated the First Amendment of the United States Constitution.(47) Each of the judges viewed the CDA as a governmentally imposed content-based restriction on speech and, under strict scrutiny review, found that the "indecent" and "patently offensive" speech targeted by the CDA was entitled to constitutional protection.(48) Although the three judges each provided separate opinions, the focus of each was that the types of speech targeted by the CDA went beyond obscenity and child pornography, and the terms "indecent" and "patently offensive" were overbroad and unconstitutionally vague.(49) The court also distinguished the online medium from other traditional forms of media, and noted that the highly participatory feature of never-ending worldwide conversation available on the Internet was worthy of protection from governmental intrusion.(50)

The Supreme Court, in affirming the district court's invalidation of the Act,(51) stated that, "[n]otwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, [the CDA is unlawful because] the statute abridges `the freedom of speech' protected by the First Amendment."(52)

Concern about Internet-related sex crimes involving children has also prompted several states to either pass or consider protective legislation. In September 1996, the governor of New York "signed into law a bill that makes it a felony to solicit minors for sex via the Internet."(53) A similar bill is working its way through the Montana legislature.(54)

Florida may soon consider an Internet abuse law, given the situation presented by a Fort Pierce man who posted a false advertisement on the Internet about a teenage boy.(55) The man, who apparently wanted to get even with a boy for calling him fat, posted the boy's name and telephone number on the Internet with "an offer to become a main's sex slave in exchange for plane tickets."(56) Although the Internet notice did not violate any Florida law, the man was arrested for possessing child pornography after allowing police to search his computer.(57)

In addition to federal and state legislative efforts, a consortium of industry participants are designing a comprehensive rating system of the Internet.(58) This system is intended to "provide the ability for third parties, as well as individual content providers, to rate content on the Internet in a variety of ways."(59) It is envisioned that, once implemented, parents and school personnel will be able to choose from one or more services which utilize the rating information made available by the "PICS" program.(60)

In addition to the rating system under development, several commercial filtering devices are available to consumers.(61) These programs allow users to block out Internet sites identified by various categories of content.(62) Although filtering devices can provide parents and schools with a useful tool in preventing children from accessing inappropriate information on the Internet, given the virtually simultaneous exchange of information that takes place on-line, the devices are not failsafe. Blocking devices also tend to be overinclusive, blocking out good as well as bad information. For example, if a parent or school inputs the key terms "bomb" and "explosive device," legitimate news stories about bombings would be blocked.(63) Due to the burgeoning volume of Internet material, blocking devices also require frequent and costly updates.(64)


Educational institutions are aware of the inherent risks in utilizing the Internet as an educational tool. Although statistics are not available, many schools now require parental permission before allowing children to go online.(65) Schools often seek to assure parents that proper instructional supervision will be provided when students access the Internet.(66) Some schools also rely on computer software blocking devices to filter out potentially harmful materials.(67)

If a student is exposed to inappropriate material on the Internet while at school, and a parent is not satisfied with the school's response to the problem, legal action is certainly possible. A suit could be filed regardless of whether parental consent was obtained, or school supervision was provided. A parent may attempt to either: (1) obtain a court order enjoining the school from allowing its students to continue using the Internet; or (2) bring a negligence action against the school.

An action enjoining a school from further Internet use seems more likely than a negligence action, because negligence actions against schools are more common in cases involving a physical injury. A negligence action is not inconceivable, however, since psychic injury can be the basis for a negligence suit.(68)

In general, once a parent alleges that a school was negligent, several key issues need to be resolved: (1) whether the school owed a duty of care to the student; (2) whether the duty was breached; (3) whether the breach caused an injury; and (4) whether the student's injury can be legally compensated.(69) If a plaintiff is able to prove that a school official was negligent, the governmental immunity laws in a particular state will largely determine whether or not a court will allow recovery against the public school or its officials.(70)

Although governmental immunity laws vary among states, school officials and their employers are often not liable to students for injuries absent a finding of willful or gross negligence.(71) In such states, simple negligence would be excused. In other states, plaintiffs may not seek redress against a school board or district, and may only seek recovery from school employees for injuries caused by gross negligence.(72)

In many states, schools owe their students a general duty of care to prevent dangerous situations that may result in injury.(73) Due care issues commonly arise in cases involving injuries sustained by students while being transported to or from school.(74) Plaintiffs are often able to recover despite state sovereign immunity laws, For example, in New Jersey, "a tort proceeding ... against a [b]oard of [e]ducation for personal injury damages resulting from its alleged failure to safeguard its students while still in its custody, [is deemed proper because] ordinary principles of negligence rather than the special concept of active wrongdoing should be controlling."(75) Many other states, following New Jersey's approach, allow for recovery for transportation-related injuries.(76)

If a legal action were brought against a school district because of student exposure to inappropriate material on the Internet, the plaintiff would bear the burden of proof.(77) The parents of the child would likely argue that the school was grossly negligent in supervising Internet use, and that the school had not taken reasonable steps to safeguard its students. A school could seek to defend itself based on measures it may have taken, such as special training for teachers in order to properly monitor Internet use, or the presence of parent and student Internet Use Agreements.(78) Failure to purchase or install software blocking devices might be viewed as evidence of negligence, although the high costs of filtering devices might excuse financially strapped districts.


Disciplinary actions taken by school officials against students are sometimes challenged on due process grounds. However, a student alleging violation of substantive or procedural due process rights granted by the Fourteenth Amendment often has a difficult time succeeding. In Arrington v. Eberhart,(79) an Alabama court held that a student's due process rights were not. violated when his school expelled him indefinitely for possession of marijuana and reported the possession to local authorities.(80) The court in Arrington held that there was no violation of due process because the school officials involved had no malicious intent toward the student.(81)

Courts considering due process claims in the school context often look to see if the punishment fit the crime. In Wise v. Pea Ridge School District,(82) the court stated that four factors should be considered when reviewing a disciplinary corporal punishment action: "(1) the need for the application of corporal punishment; (2) the relationship between the need and the amount of punishment administered; (3) the extent of injury inflicted; and (4) whether the punishment was administered in a good faith effort to maintain discipline."(83) The Wise court further noted that excessive force resulting in appreciable pain could be found to violate a student's constitutional liberty interest and substantive due process rights.(84)

Based on the school disciplinary cases mentioned above, a court would likely approach any Internet-related disciplinary action from a fundamental fairness perspective. If a student admitted to wrongdoing and was punished fairly, it is unlikely that a court would hold that the student's due process rights had been violated.(85) However, if a student was punished for accessing or sending inappropriate material, but had done so inadvertently, a court might determine that holding a student strictly liable in such a case violated the student's due process rights.

Although this author does not know of any court cases involving alleged due process violations resulting from disciplinary actions taken against students for Internet abuse, schools have disciplined students for improper Internet use. Section I of this paper, detailed the situation in which a high school in Washington state withdrew its endorsement of a student for a National Merit scholarship after that student referred online readers to online sexual material.(86) A news report following that incident indicated that the student believed that the withdrawal of his school's endorsement would result in his losing out on the scholarship.(87) Although no litigation reportedly arose from this incident, a similarly situated student could claim that the endorsement withdrawal was too great a penalty given the large amount of money at stake.

Similarly, the South Carolina student who was suspended and then transferred to another school after placing viruses and racial remarks on the school's computers,(88) might also argue that his punishment was fundamentally unfair. Although the placement of viruses could have seriously interfered with the school's computer operations, the child could argue that permanent expulsion from the school was too severe a punishment. The free speech issues raised by this incident are addressed separately in Section IV of this paper.

Given the lack of Internet-related litigation involving schools and school children, two hypothetical cases are offered as examples of possible disputes that could easily arise. A legal analysis of each is also provided.

Case 1: In the first hypothetical situation, assume that a group of three seventh grade students access bomb-making information from a school computer linked with the Internet. The students use the information to construct a bomb-like device at one of the children's homes, and all three suffer serious injuries when the device they built explodes in their faces.

Upon investigation, the police discover that the students accessed the information during school hours while working on an Internet research assignment in the school's computer lab. The lab houses fifteen terminals and is located in a separate room within the library. Although no teachers or other staff members were in the room when these students downloaded and printed out the bomb-making instructions, other students later told the police that several students were in the lab and were aware that the injured students had accessed and printed out this information.

The school admits that its computer lab is staffed only occasionally, but defends its lack of supervision by claiming that the lab is located in a glass partitioned room within the school's library. The library is always supervised by at least two staff librarians and one or two parent volunteers. The school also claims that the town's school board rejected the idea of purchasing software filtering devices for school computers, but plans to develop a parent and child Internet-use contract.

Based on these facts, parents of the injured students might attempt to sue their children's school and school district for the physical injuries sustained as a result of negligent supervision. The parents might be successful in arguing that the childrens' injuries were foreseeable in light of the steady stream of news reports over the last few years involving school-aged children attempting to make bombs from Internet instructions.(89) The lack of direct supervision, filtering devices, and an operable Internet contract, might persuade a sympathetic judge or jury to conclude that the school's lack of effort to monitor Internet use by its students was in fact reckless. Despite governmental immunity laws, a finding of reckless behavior would be enough to support a damages claim in many states.(90)

Case 2: In the second hypothetical situation, assume that a group of students carry out a plan to get a fellow student suspended from school. The two students hatch the idea after locating the intended victim's computer user ID from materials left in plain view on their teacher's desk. Two of the students involved in the scheme stay after school one day and use the victim's user ID to access the school's Internet homepage. The students type in allegations that the school's principal is gay. After tracing the Web page update to the victim's user ID, the principal suspends the innocent student from school. In an attempt to dissuade copycat incidents, the principal sends a letter home with every student in the school, detailing the incident. The suspended child's name is withheld, but word of the student's identity quickly spreads throughout the school. The child complains to his parents that he is being shunned by teachers and made fun of by other students while at school.

The student who was suspended is cleared several months after the incident when a teacher overhears the culprits bragging about getting their fellow student suspended. The principal promptly apologizes to the student and the student's family. The student and his parents respond with a suit against the principal, the school, and the school board, for negligently induced emotional distress. Their suit alleges that the student is suffering severe emotional distress as a result of the incident. A psychiatrist retained by the child's family is prepared to testify that the child developed a severe eating disorder because of the incident.

A court considering this case would likely be very sympathetic to the harmed reputation and physical ailments suffered by the child in this case. A violation of the student's due process rights might also be found since the school lacked actual proof that the suspended student had posted the offending material on the school's Web page.(91)


Broader issues raised by Internet use in the public schools include: (1) whether parents might individually, or in groups, argue that school Internet use interferes with their child-rearing rights; (2) whether poorer school districts might point to disparate Internet use between wealthy and poor schools to the detriment of the poorer district's students; and (3) whether schools that are attempting to limit student speech on the Internet might become embroiled in controversy given student's constitutional free speech and privacy rights.

A. Parents' Rights

The first issue of parents' rights emerges frequently when schools attempt to teach or provide students with information involving controversial matters. In Curtis v. School Committee,(92) an action was commenced by students and parents after the local junior and senior high school began a condom distribution program.(93) The plaintiffs sought "declaratory and injunctive relief ... alleging violations of their Federal constitutional rights."(94) The Massachusetts Supreme Court affirmed the lower court's summary judgment in favor of the defendants,(95) holding that the "program does not violate the plaintiffs parental liberties or privacy rights [nor] their rights freely to exercise their religion."(96) The court further held that the condom distribution program did not burden the constitutional rights of students or parents since the program was voluntary, and that "[p]arents have no right to tailor public school programs to meet their individual religious or moral preferences."(97)

The Curtis decision was appealed to the U.S. Supreme Court on constitutional grounds, but was rejected by the Court without comment in early 1996.(98) The Supreme Court appeal request, which accused the Massachusetts ruling of being, "flagrantly antiparent," was backed by religious conservative groups including the American Center for Law & Justice.(99)

A similar condom distribution case involving the Philadelphia public schools is working itself through the U.S. District Court for the Eastern District of Pennsylvania.(100) The plaintiffs in the Philadelphia case are challenging the right of Philadelphia public schools to distribute condoms free of charge to students, on grounds that it violates the "Fourteenth Amendment right to freedom from unnecessary governmental intrusion into childrearing."(101)

Questions of parental rights are by no means new. In 1982, the Supreme Court in Board of Education v. Pico,(102) dealt with the issue of whether a local school board could remove books from the library of a public school simply because the board disliked the ideas contained therein.(103) The Court ruled that the First Amendment prevents school boards from removing books for this reason.(104)

Additionally, parents' groups have recently brought actions against school boards because of planned sex education teachings,(105) and for requiring mandatory student attendance at a session where AIDs was discussed in a sexually explicit way.(106)

Over the last few years, parental rights groups throughout the country have become much more organized and vocal.(107) In November of 1996, Colorado voters were presented with a parental rights state constitutional amendment that could have dramatically altered public education within the state by giving parents significant control over many aspects of their children's education.(108) The Colorado amendment was criticized because of concerns that parents might unduly interfere with public school education operations by gaining rights of "approval and disapproval over materials, curriculum and teaching methods."(109) Several groups have actively voiced concerns that the amendment would interfere with child abuse prosecution efforts, and have apparently contributed to the defeat of the proposal.(110)

Details of the proposed Colorado amendment illustrate the power that parents' groups have when they seek to insert themselves into the educational system. As the cases in this section illustrate, parents often seek to influence school policies when programs providing sensitive information to students are introduced. With the advent of interactive technology that is now available to school children, questions of appropriateness and supervision have already touched off debates among parents and school leaders.(111)

In sum, as an educational tool, the Internet will likely expose schools to significant challenges for many years, especially because the content available to children is not capable of being fully controlled by schools.

B. Equity Issues

Due to the high costs involved in Internet use by schools, many equity issues are raised.(112) Whether or not federal and state governments will be successful in ensuring that students from poor districts will have equal access to computer technology remains uncertain.

At the federal level, President Clinton has set a goal of connecting every classroom to the Internet by the year 2000.(113) The President proposed spending $2 billion of federal monies over the next five years to help reach the goal of nationwide student access.(114) In an effort to reach out to all schools, the federal funding initiative is designed to give poorer districts preferential treatment in the allocation process.(115) The current Administration has already begun releasing monies to disadvantaged schools.(116) The Administration also plans to help schools by providing a discount of up to 90% off the costs of Internet access.(117) The discounts are graduated between 40% and 90%, depending on the wealth of the individual school district.(118)

Leaders at the state level have also remained keenly aware of the need for equalization in computer spending efforts. The state of Connecticut became so concerned about computer access disparities in its schools that it created a special committee in late 1994 to address the issue.(119) Part of Connecticut's earlier disparity was caused by a pilot program which funded computer projects in select schools.(120) However, Connecticut continues to consider the needs of all of its schools, as reflected by a 1997 proposal to create a computer network that will link all of the state's schools and libraries to one another and to the Internet.(121)

Massachusetts is another state which, in 1996, worked to pass a $60 million program to equalize computer resources in its schools.(122) The problems in Massachusetts were highlighted when Governor Weld visited the Consentino Middle School and saw that 750 students were sharing only thirty terminals.(123) A sixth grade child told the governor that this did not compare favorably with her prior Massachusetts elementary school, which had five computers in each classroom, a computer lab and computers in the library.(124)

In California, questions of equity arose after the governor unveiled a $1 billion school technology program in early 1997.(125) The program requires schools to either spend or raise donations of one dollar for every dollar in matching state funds.(126) Reporters asked the governor if this type of matching grant program favored the state's wealthier schools.(127) Governor Wilson responded that he was "confident that every district that wants a computer training program for its students would be able to find the local matching funds."(128) Wilson also said that he "visualizes districts raising most of their share of the program from donated used computers, with state funds used in part to refurbish and upgrade those computers."(129) One criticism of this approach, however, is that students working on old donated computers will not learn as much because older computers are generally obsolete.(130)

Although major federal and state level funding initiatives have been initiated to prevent disparity between rich and poor students from occurring, poor schools, unsurprisingly, are already behind in the race. A recent national survey provided that "only half of the schools serving high numbers of poor students were connected, while about three-fourths of the schools serving more affluent students had Internet access."(131)

The Reverend Jesse Jackson, a public education equity proponent, recently focused national media attention to the many problems faced by the nation's poor public school students.(132) To highlight the disparities between wealthy and poor school districts, Jackson visited one wealthy and one poor high school in the Chicago area.(133) After touring a poor school in south Posen, where over 90% of the students come from welfare families, Jackson revealed that the school was not wired for Internet service.(134) The Posen school had only one computer for every 40 students.(135) Reverend Jackson compared the Posen high school with a high school from Chicago's affluent North Shore. In that school there was, "a computer for every three students, electron microscopes in science labs, a television studio, and an Olympic-size swimming pool."(136)

Public education funding, which relies heavily on local property taxes, is often blamed for disparate spending between wealthy suburban and poor urban schools.(137) The disparity arises because wealthy districts have much stronger local tax bases and can raise significant revenues from low property tax rates.(138) Inner city districts, by comparison, often generate less local revenue, even though they often charge taxpayers much higher rates.(139) In order to equalize spending among economically disparate districts, most state governments have either chosen or been forced to supplement local revenues raised by needier districts.(140) State funding formulas vary, but many aim to ensure a guaranteed minimum amount of state aid or school spending per pupil.(141) Some states have even implemented spending caps to avoid the problem of wealthy school districts spending in excess of the minimum per pupil amount that the state is required to fund.(142) In most states, efforts to improve equalization of public school spending has occurred as a result of court order, rather than through self-initiated efforts.(143)

It is unknown whether lawsuits will be filed as a result of disparate technology spending or unequal Internet access. However, recent government studies and media reports, combined with court-directed state equalization funding formulae, suggest that technology spending will remain a hot issue for years to come.(144)

C. Privacy and Free Speech Issues

Attempts by school officials to monitor or control student speech on the Internet raise several constitutional, privacy and free speech issues.(145) Consider the following hypothetical situations, where a high school offers its students Internet electronic mail ("e-mail") accounts.

Hypothetical: In order to ensure that students do not abuse the privilege, the school technology director periodically eavesdrops on randomly selected student e-mail accounts. The students have no idea that their e-mail messages are subject to monitoring. During a spot check, the director sees several shared messages between two students who say they hate Jews. It is clear from the correspondence that the students are considering sending hate messages to three Jewish students at their school. The two students participating in the so-called hate dialogue are disciplined with an in-school suspension, and lose the use of all school computers for one year. The school principal holds a meeting with the entire school to describe the event in detail. Although names are withheld, students quickly discern which two students were disciplined after both students are transferred out of a very popular computer class. The two students then suffered several varieties of harassment, including periodic ransacking of their lockers, and threatening letters from an anonymous source.

The two students, accompanied by their parents, visit a lawyer to discuss whether the students' constitutional privacy and free speech rights were violated. If they try to bring a lawsuit, it is uncertain how a court would rule. The plaintiffs attorneys may be successful, however, if they analogize the children's situation to that of an employer eavesdropping on an employee.(146)

The issue of "electronic hate," along with attempts to control it, received a great deal of media attention in January of 1997, when Professor Arthur R. Butz of Northwestern University used the University's web site to express his view that the Holocaust never happened.(147) Northwestern refused to discipline Butz because "the university's policy on intellectual freedom in cyberspace says: `[t]he network is a free and open forum for the expression of ideas,' including unpopular ones."(148)

Some other privacy issues recently made the headlines when two school districts began developing plans to store personal student data on their computers. In February of 1997, California's Orange County public schools reported that they contracted to purchase a computer system which will use the Internet to link parents with its schools.(149) The program will provide parents with access to their children's test scores, attendance records and teacher remarks.(150) Despite the fact that access will require a password and the student's identification number, confidentiality concerns have been raised.(151)

In 1997, the Fairfax County School Board, in Virginia, approved the purchase of a computer system which will collect confidential student information for internal uses.(152) Parents, expressing their opposition, raised confidentiality concerns based on the ease with which- information can be accessed.(153) The school board's vice chairman indicated that data from the new system will not be available on the Internet. Opponents of the program, however, say that this is not true: they contend that the "schools' computer network is attached to the Internet, which means school staff can e-mail or ftp (file transfer protocol) student records over the Internet."(154)


Many schools that have incorporated Internet use into their curriculum have sought to protect themselves in two ways: (1) by installing software filtering devices; and (2) by having parents and students sign agreements before students can go online.

A. Filtering Devices

Commercial filtering devices have become a popular means of restricting student access to the Internet.(155) Many schools without such devices are considering whether or not to purchase them.(156) A recent prediction by a filtering device company executive that, "[c]omprehensive filtering tools will become an increasingly important issue, as President Clinton challenges America to connect every classroom and library to the Internet by the year 2000,"(157) is likely to come true.

B. Internet Contracts

A typical student agreement(158) provides that a student will not purposely seek out pornographic or inappropriate materials.(159) In some cases, parents are also asked to sign agreements authorizing their children to use the school's online services.(160)

Schools began developing Internet use agreements as early as 1995.(161) The Internet policy and agreements utilized by the Chatham School District, in New Jersey, clearly set forth the district's standards and consequences for violations.(162)

The policy further states that, "[n]o pupil shall be allowed in-school use of computers, the computer network and the Internet unless they shall have filed with the building principal, a consent form signed by the pupil and his/her parent(s) or guardian(s)."(163) The policy concludes by defining the possible disciplinary actions deemed to be appropriate for violation of the district's policy.(164)

In sum, schools may face greater liability if they do not provide filtering devices or seek parental permission before allowing students to go online. Schools requiring permission, however, may still find themselves embroiled in controversy if improper supervision is alleged.


Rapid growth in Internet use by the nation's public schools seems certain to continue as a result of tremendous federal and state government spending initiatives.(165) As more students go online, controversies are likely to increase. Numerous problems have already arisen. For example, since 1995, there have been numerous media accounts of: (1) students downloading and using bombmaking instructions from the Internet;(166) (2) teenagers running away to be with pedophiles or other adults that they met while online;(167) and (3) criminal charges filed against youths for sending death threats to President Clinton via the Internet.(168) Students have also been disciplined by schools for trying to download pornographic material and expressing inappropriate ideas while online.(169)

Despite efforts taken by schools to reduce both the likelihood of inadvertent access to inappropriate materials and purposeful Internet abuse by students, Internet-related problems are likely to continue since schools lack the ability to fully control what students encounter online. Depending on the particular facts of an Internet problem involving a school child or children, individual parents or parents' groups may seek redress through the courts. Two methods of redress which may be sought include: (1) negligence actions; and (2) suits seeking to enjoin individual schools from further Internet use.

With regard to negligence actions, governmental sovereign immunity laws in many states will probably quash most, but not necessarily all, negligence cases.(170) Schools that have purchased commercial filtering devices and adopted Internet use agreements requiring parental and student consent, will be in a better position to defend against negligence suits.

Suits that seek to enjoin schools from further Internet use are likely to be brought by parent rights groups, because parents have frequently sought this type of remedy in controversial school instructional matters.(171) Courts are likely to be sympathetic to parents seeking redress for Internet-related harms, particularly in cases where children have been solicited by adults.(172)

One key area of legal uncertainty arising from Internet use by the nation's public schools is whether courts will become embroiled in suits alleging harm to students from poor school districts because of unequal Internet access. State education equalization laws suggest these types of claims are entirely possible.(173)

Disciplinary actions taken against students for Internet abuse Will, in some situations, likely give rise to further allegations of unfair treatment. Whether or not parents and students will seek redress through the courts is unknown. Schools that discipline students for what they say, however, always face the possibility that the school will be sued for violating the student's constitutional free speech rights.(174) Schools using electronic monitoring or other means to uncover student Internet abuse may also face lawsuits.(175)

The next few years are likely to be a lively, and potentially litigious, time for schools as they continue hooking up to the Internet.

(1.) See Michael N. Milone, More Schools on the Information Highway, TECH. & LEARNING, May 15, 1996, at 27; Clinton, Gore Cite Progress in Wiring Nation's Schools, U.S. NEWSWIRE, Feb. 8, 1997 [hereinafter Clinton Gore Cite]. The federal government conducted its first survey entitled, "Advanced Telecommunications in U.S. Public Elementary and Secondary Schools," in the fall of 1994, and follow-up surveys were conducted in 1995 and 1996. See Clinton Gore Cite, U.S. NEWSWIRE, Feb. 8, 1997. Of the 65% of Internet-connected schools in 1996, an estimated 89% had World Wide Web access. See id. Approximately 74% of these schools with World Wide Web access made access available to students. See id.

(2.) Most critics of Internet linkage predict that schools will get only little, if any, value for huge amounts of spending. See e.g., Brian Hecht, Net Loss: Clinton's Internet Delusion, NEW REPUBLIC, Feb. 17, 1997, at 15. Hecht suggests that the Internet is really no different from television, because of the constant advertisement. See id. Other critics point to time wasted on Internet surfing and stress that computers will not solve education's problems of overcrowding and discipline in schools. See Jim Ritter, Overselling Educators on the Internet?, CHI. SUN TIMES, Jan. 19, 1997, at 40. Other critics of technology in general, raise the problems of improperly trained teachers and the inability of school boards to make proper technology choices. See Betsy Wagner et al., Where Computers Do Work, U.S. NEWS & WORLD REPORT, Dec. 2, 1996, at 82.

(3.) See Milone, supra note 1, at 27.

(4.) See What Clinton Wants in U.S. Education, INDIANAPOLIS STAR, Feb. 5, 1997, at A4. American school districts seem to share the President's goal. According to the 1996 federal survey of the nation's public schools, 87% of the schools currently without Internet access plan to get access by the year 2000. See Clinton Gore Cite, supra note 1. If these schools are successful in gaining Internet access, an estimated 95% of the country's public schools will be connected. See id.

(5.) Many districts are successfully reducing huge rewiring costs by enlisting community and corporate support. For example, in early 1996, 50,000 volunteers took part in a one-day effort to wire 3,500 California schools. See Schools Make Giant Leap into Computers, Internet, TAMPA TRIB., Dec. 25, 1996, at 6. On October 25, 1996, several other states participated in local wiring projects as part of national NetDay, which adopted California's community-based idea. See id. In Florida, over 20,000 volunteers worked together to wire over 1,800 schools. See id. Florida's rewiring initiative was financed by eight million dollars raised from corporate and individual donations. See id. As a result, 70% of Florida's schools are now at least partially wired. See id. Connecticut is another state working hard to upgrade the wiring in its public schools. As of December 1996, the state had approved nearly six million dollars in grants from a $10.4 million total grant program for school wiring projects. See Van Alden Ferguson, State Set to Approve Bonding for School Computer Grants, HARTFORD COURANT (Conn.), Dec. 20, 1996, at A42.

(6.) See Gordon Smith, Hey, Pete: Is Internet Truly Worth Big Bucks?, SAN DIEGO TRIB., Jan. 18, 1997, at A3. See also infra notes 125-30 and accompanying text for details and criticism of the California proposal.

(7.) See Dion Nissenbaum & Sam Delson, Governor Gets Mixed Review on Education, PRESS ENTERPRISE (Riverside, Cal.), Jan. 11, 1998, at A]. The California governor's proposed budget for fiscal year 1998-99, for example, includes a $136 million request for Internet linkage and computer training. See id.

(8.) Recent initiatives in New York City and Raleigh, North Carolina offer two examples of local efforts. The mayor of New York City proposed a $150 million program in early 1997, so that every student will have ready access to a computer and every school will be connected to the Internet. See David Firestone, Mayor Plans to Put 40,000 Computers in Schools, N.Y. TIMES, Jan. 14, 1997, at 132. The New York City plan involves installing 40,000 computers in the City's 1,085 schools over the next three years. See id. On a smaller scale, the Raleigh schools, in late 1996, agreed to a $1.8 million technology spending plan. See Todd Silberman, Raleigh School Sets $1.8 Million Technology Goal, NEWS & OBSERVER (Raleigh, N.C.), Dec. 25, 1996, at B1.

(9.) Several schools have allowed students to use school computers to create home pages on the World Wide Web. See, e.g., Milone, supra note 1, at 34. Students are also participating in interactive on-line environments known as "multiuser dimensions" ("MUDs"); and "multi-user simulated environments" ("MUSEs"). See Odvard Egil Dyrli, Educational MUDs, MOOs, and MUSEs, TECH. & LEARNING, May 15, 1996, at 20. Examples of these interactive online environments include a "[n]ative-American village constructed by a third-grade class, a room on ancient Egypt constructed by a sixth-grade class, [and] ... a moving representation of a concentration camp built by students studying the Holocaust." Id.

(10.) See, e.g., Coleman v. Caddo Parish Sch. Bd., 635 So. 2d 1238, 1267-71 (La. Ct. App. 1994) (affirming in part the district court's injunction against the parish school board from using sex education curricula it had chosen); Brown v. Hot, Sexy and Safer, Prod. Inc., 68 F.3d 525 (1st Cir. 1995) (affirming a lower court's dismissal of an action brought by parents against a public high school, after students were required to attend the school's sexually explicit AIDS awareness class); Curtis v. School Comm'n, 652 N.E.2d 580 (Mass. 1995) (denying students and parents declaratory and injunctive relief for their action, which was brought in response to an ongoing condom distribution program at a junior and senior high school).

(11.) See, e.g., infra notes 105-06.

(12.) See supra note 4 and accompanying text.

(13.) See infra notes 140-43 and accompanying text.

(14.) See infra Section IV(C).

(15.) See infra note 146 for a discussion of the related issue of employee monitoring trends.

(16.) Gus Venditto, Safe Computing, INTERNET WORLD, Sept. 1996, at 49.

(17.) See Patrice Mitchell, It's Not Just a Game Anymore, L.A. TIMES, Jan. 3, 1997, at E1.

(18.) See id. The girl's family discovered an e-mail message from the serviceman that stated, "I have the week of Christmas off ... I could be in Rochester in less than a week. I can't guarantee how much time we could spent [sic] together. But at least it would be TOGETHER." Id.

(19.) Id.

(20.) Id.

(21.) See Kevin Coughlin, Man Arrested for Sex Chats With N.J. Girl, STAR LEDGER (Newark, N.J.), Feb. 12, 1997, at 1.

(22.) See id. Police believe the relationship began in 1995, when the girl sought a pen pal on an Internet bulletin board. See id. The man first pretended to be a lonely teenage boy, but later revealed to the girl that he was an adult. See id.

(23.) Martha Brockenbrough & Adam Berliant, Tacoma Teen Arrested After Making `Bomb' from Internet, NEWS TRIB. (Tacoma, Wash.), June 2, 1995, at Al.

(24.) See Eric Niiler, Information Explosion Hits Home: Randolph Sees Internet's Dark Side, PATRIOT LEDGER (Quincy, Mass.), Apr. 29, 1995, at S9.

(25.) See id.

(26.) See id.

(27.) Id. This news account provided that "[f]ederal law enforcement officials say that this kind of how-to manual has been around since the days of the Weather Underground radical terrorist group in the late 1960s. But computerized access by young people is a new phenomenon." Id.

(28.) See Glenn Coin, Teens Planned to Bomb School; They Studied Explosives on Internet, SYRACUSE HERALD-J. (N.Y.), Feb. 2, 1996, at Al.

(29.) See id.

(30.) See id. The police were alerted by school officials who heard rumors that several students were planning to build a bomb and place it in school offices over the upcoming weekend. See id.

(31.) See Two Teens Charged in Building Gas Bomb, FLA. TODAY, Feb. 28, 1996, at 138.

(32.) See id. Additional instances of children injured or caught making bombs from recipes found on the Internet have occurred in Pennsylvania and Massachusetts. See Ron Devlin, Parents, Software Can Limit Access to Dangerous Websites, ALLENTOWN MORNING CALL (Pa.), Aug. 25, 1996, at 137. In Pennsylvania, a fifteen year old boy died in 1995, while making a bomb from instructions that were downloaded from the Internet. See id. A second incident in Pennsylvania occurred when "[t]wo Philadelphia boys were injured when the pipe bomb they were making with copper tubing and nails went off. Again, authorities cited the Internet." Id, A third incident in Pennsylvania involved three Philadelphia-area high school students who got caught after downloading bomb recipes from the Internet and [breaking] into the school's chemistry lab in search of ingredients. See id. In Massachusetts, two boys were seriously burned when gasoline vapors from an Internet napalm recipe ignited and burned 15% of their bodies. See id.

(33.) Brockenbrough & Berliant, supra note 23, at A1.

(34.) See id.

(35.) See Jeff Bean, Out of Line On-Line; District Tightens Policies on Computer Use After Some Students Sneak into Risque Web Sites, L.A. TIMES, Aug. 24, 1995, at 1.

(36.) Bret Jessee, Student Put Racial Slurs on Web Site, CHARLESTON DAILY MAIL(S.C.), Dec. 18,1996, at P40.

(37.) See id.

(38.) See Secret Service Investigates Internet Threats, ASSOCIATED PRESS, Feb. 22, 1997, available in 1997 WL 2503170.

(39.) See id.

(40.) See id. Threatening the President's life is a federal offense which carries a five year prison sentence. See id.

(41.) 47 U.S.C.A. [sections] 223 (West Supp. 1997).

(42.) See id.

(43.) See id.

(44.) 929 F. Supp. 824 (E.D. Pa. 1996).

(45.) See id. at 849. The Reno ruling was decided by a panel of three judges after holding several evidentiary hearings. See id. at 849-84. The judges agreed on and articulated 123 separate "findings of fact," which supported the unconstitutional finding. See id. at 830-49. The "findings of fact" included information regarding the history and basic technology of the online medium, a discussion of the current technology available to restrict children's access to inappropriate Internet materials, and possible alternative approaches the government and online providers have been exploring to address the problem of children's online access to "obscene" and "patently offensive" materials. See id.

(46.) See Reno v. ACLU, 117 S. Ct. 2329 (1997).

(47.) See Reno, 929 F. Supp. at 883.

(48.) See id. at 849-83. Under strict scrutiny, a government regulation "will only be upheld if it is justified by a compelling government interest and if it is narrowly tailored to effectuate that interest." Id. at 851 (citing Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115,126 (1989)).

(49.) See id. at 858.

(50.) See id. at 883.

(51.) See Reno, 117 S.Ct. at 2351.

(52.) Id. at 2334.

(53.) New York: Governor Signs Bill to Make it a Crime to Solicit Child Sex Via the Internet, WEST'S LEGAL NEWS, Sept. 13, 1996, available in 1996 WL 516201. The New York law "makes it a crime to send sexually explicit material to children via the Internet. Those convicted of such crimes could face up to seven years in prison." Id.

(54.) See Bob Anez, A Bill That Supporters Believe Will Curb Sex Crimes, ASSOCIATED PRESS, Feb. 24, 1997, available in 1997 WL 2503554. Montana's bill "would make it a crime to display or distribute harmful material to minors, including any depictions of nudity that tend to appeal to a minor's `prurient interest in sex.'" Id. (quoting Mont. House Bill 453). The Montana bill is not without opposition. One state representative, employed as a school librarian, worries that libraries will be liable if "students happen to find a book or a spot on the Internet that exposes them to some sexual material considered harmful." Id. Schools, libraries, and museums, however, are reportedly exempt under the proposed law. See id.

(55.) See "Sex Slave" Notice on Internet Not Illegal, TAMPA TRIB. (Fla.), Dec. 7, 1996, at 5.

(56.) Id.

(57.) See id.

(58.) See ACLU v. Reno, 929 F. Supp. 824, 838-39 (E.D. Pa. 1996). The consortium of industry participants is called the "World Wide Web Consortium." See id. The rating project is commonly known as the "Platform for Internet Content Selection," or "PICS" program. See id. at 838.

(59.) Id.

(60.) See id. As of January 1998, Microsoft Corp. had integrated a beginning version of PICS into its Web browser. See Amy Harmon, Internet `Filter' Draws Fire, DALLAS MORNING NEWS (Tex.), Jan. 19, 1998, at D1. The PICS system, however, is currently under attack by the ACLU and other civil liberties groups that claim that the new PICS system may be used to censor political speech. See id,

(61.) See Reno, 929 F.Supp. at 839.

(62.) See, e.g., id. at 839-42, which details features of several software programs currently on the market. The court specifically profiled "Cyber Patrol," which is a program offered by Microsystems Software, Inc. See id. at 839-41. Cyber Patrol pinpoints "approximately 7,000 sites in twelve categories ... [and] enable[s] parents to selectively block access to any or all of the twelve ... categories simply by checking boxes in ... (the Cyber Patrol program manager)." Id. at 840. The twelve categories include: (1) Violence/Profanity; (2) Partial Nudity; (3) Nudity; (4) Sexual Acts; (5) Gross Depictions; (6) Racism/Ethnic Impropriety; (7) Satanic/Cult; (8) Drugs/Drug Culture; (9) Militant/Extremist; (10) Gambling; (11) Questionable/Illegal; and (12) Alcohol, Beer & Wine. See id. The Reno opinion also noted that Cyber Patrol and many other similar products are now available, and that the demand for this type of product has been growing. See id. at 839. In addition, the large network providers such as Prodigy, CompuServe, and America Online, either contract with these blocking services or supply their own content controlled children's areas. See id. at 842.

(63.) See Devlin, supra note 32.

(64.) See Venditto, supra note 16, at 49-50. It is currently estimated that thousands of new online Web pages are being created daily, and that the total number of Web pages exceeds thirty million. See id.

(65.) See infra Section V(B).

(66.) See id.

(67.) See supra notes 61-62 and accompanying text.

(68.) See, e.g., Brosnan v. Livonia Pub. Sch., 333 NW.2d 288 (Mich. Ct. App. 1983) (considering whether state sovereign immunity laws immunize a teacher from liability for misdiagnosis of a child's special needs); see also, Hunter v. Board of Educ., 425 A.2d 681 (Md. Ct. Spec. App. 1981) (determining that public policy barred recovery for educational malpractice in a case brought by a student alleging he had not received a quality education). The court in Hunter explained that it was unwilling to create a new tort for educational malpractice because "unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury." Id. at 683. Emotional injury claims generally require proof that, "[t]he defendant's conduct [was] extreme and outrageous; [t]he defendant's conduct [was] intentional or reckless; [t]he conduct cause[d] emotional distress; and [t]he emotional distress [was] severe." 3 J. D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY & LITIGATION [sections] 32.03 (Rev. ed., 1994). If applying this set of factors to an Internet-related complaint, the plaintiff would have a difficult time proving that negligent supervision caused severe emotional distress, unless the facts pointed to outrageous behavior by school officials. Although a teacher helping a student download pornographic material would likely satisfy the outrageous requirement, most situations would not likely be so clear-cut. A more typical example would consist of a student accessing improper materials without a teacher or school official being aware. See Bean, supra note 35 (reporting that a Capistrano, California high school student had his computer privileges suspended for attempting to download nude photographs from the Internet),

(69.) The Restatement of Torts outlines that the plaintiff bears the burden of proof in an action for negligence. RESTATEMENT (SECOND) OF TORTS [sections] 328A (1965). Specifically, the plaintiff has the burden of proving: "(a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff, (b) failure of the defendant to conform to the standard of conduct, (c) that such failure is a legal cause of the harm suffered by the plaintiff, and (d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages." Id. As with any assessment of negligence, determining whether a teacher or school is guilty of negligent supervision depends on the facts and circumstances unique to the incident involved. See 1 J. D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY & LITIGATION [sections] 3.02 at 23 (Rev. ed., 1994).

(70.) The theory and application of state and municipal sovereign immunity laws may extend to public schools and public school personnel. See LEE & LINDAHL, supra note 68, [sections] 16.09, at 573.

(71.) See, e.g., Cooper v. Millwood Indep. Sch. Dist. No. 37, 887 P.2d 1370, 1374 (Okla. Ct. App. 1994) (explaining that under Oklahoma law, "[a]lthough employees of the state are protected from tort liability while performing within the scope of their employment, such protection does not render such employees immune from liability for willful and wanton negligence or other conduct which places the employees outside the scope of their employment"); Washington v. Chicago Bd. of Educ., 562 N.E.2d 541, 542 (Ill. App. Ct. 1990) (interpreting the Illinois Tort immunity Act as preventing causes of action against school boards where willful and wanton misconduct has not been proven).

(72.) See, e.g., B.M.H. v. School Bd., 833 F. Supp. 560, 573 (E.D. Va. 1993) (explaining that "[s]ince 1960, Virginia has recognized that the doctrine of sovereign immunity prevents a public school board from being held liable on account of its negligence," and even if a school board is found to be grossly negligent, a plaintiff's claims would be barred under the state's sovereign immunity law).

(73.) See supra note 69 and accompanying text.

(74.) See infra note 76 and accompanying text.

(75.) Jackson v. Hankinson, 238 A.2d 685, 687 (N.J. 1968). The court further stated that "municipal entities, along with all others, should justly be held accountable for injuries resulting from their tortious acts and omissions under ordinary principles of negligence." Id. at 688.

(76.) See, e.g., Yeager v. Morgan, 429 S.E.2d 61, 64 (W. Va. 1993) (applying the theory that school bus drivers owe a duty of care to their passengers, to transport them safely and to ensure that they depart the bus safely). In Yeager, the injured school child was hit by an oncoming car after departing and crossing behind the bus. See id. The issue of negligence arose because the driver had turned off the safety lights before the student crossed the street. See id. See also, Constantinescu v. Conejo Valley Unified Sch. Dist., 20 Cal. Rptr. 2d 734, 735 (Cal. Ct. App. 1993) (finding the school liable for the dangerous condition of the zone in which parents pick up their children); Blair v. Board of Educ., 448 N.Y.S.2d 566 (N.Y. App. Div. 1982) (upholding a damages award to a student and his father for negligent supervision which resulted in an eye injury to the child when the injury was caused by another student on the bus).

(77.) See supra note 69.

(78.) See infra Section V.

(79.) 920 F. Supp. 1208 (M.D. Ala. 1996).

(80.) See id. at 1217-18.

(81.) See id. at 1209.

(82.) 855 F.2d 560 (8th Cir. 1988).

(83.) Id. at 5 64.

(84.) See id. See also Boster v. Philpot, 645 F. Supp. 798, 800 (D. Kan. 1986) (finding that no due process violations occurred after students received a three day suspension for admitted vandalism of a school building).

(85.) Boster is an example of a case where a seemingly fair result was reached since the students admitted the behavior for which they were punished. See Boster, 645 F. Supp. at 800.

(86.) See Brockenbrough & Berliant, supra notes 33-34 and accompanying text.

(87.) See id.

(88.) See Jessee, supra notes 36-37 and accompanying text.

(89.) The plaintiffs could point to numerous media reports published over the last few years that involve separate incidents of children making bombs from Internet instructions. See supra notes 24-32 and accompanying text.

(90.) See supra note 71.

(91.) See supra notes 79-84 and accompanying text for a discussion of the difficulty students face in proving that their due process rights have been violated.

(92.) 652 N.E.2d 580 (Mass. 1995).

(93.) See id. at 582-83. Defendants named in this action included the junior and senior high school principals, and the superintendent of the public school districts. See id. at 582.

(94.) Id. at 582

(95.) See id.

(96.) Id. at 588-89.

(97.) Curtis v. School Committee, 652 N.E.2d, at 589..

(98.) See id; Mark Walsh, High Court Rejects Condom-Distribution Case, EDUC. WEEK, Jan. 17, 1996.

(99.) Id.

(100.) See Parents United For Better Sch. v. School Dist., No. Civ. A. 96-3791, 1996 WL 442887 (E.D. Pa. July 31, 1996).

(101.) Id.

(102.) 102 S. Ct. 2799 (1982).

(103.) See id. at 2801.

(104.) See id The court noted that "[p]etitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner." Id.

(105.) See, e.g., Coleman v. Caddo Parish Sch. Bd., 635 So. 2d 1238, 1267 (La. Ct. App. 1994) (holding that specific passages of school's sex education curricula violate a state statute requiring that course materials be factually accurate).

(106.) See, e.g., Brown v. Hot, Sexy and Safer Prod., Inc., 68 F.3d 525, 531-34 (1st Cir. 1995) (finding that parents' claim did not meet necessary threshold for maintaining that the students' substantive due process rights were infringed). The court also held that a "parents' right to choose a specific educational program" is limited to a guarantee that parents may choose alternate paths of education, not the right to "dictate the curriculum at the public school [attended by] their children." Id. at 533. Additionally, the court noted that the invocation of a limited power oil the part of a state to regulate speech does not allow for "a private cause of action against state officials for minors, exposure to potentially offensive speech." Id. at 534.

(107.) See `Parent Rights,' Church Tax Lose Soundly, DENVER POST, Nov. 5, 1996 (hereinafter Parents Rights).

(108.) The text of Colorado's proposed amendment provided that, "parents have the natural, essential and inalienable right to direct and control the upbringing, education, values, and discipline of their children." Colo. Gen. Assembly, Legislative Council, Analysis of 1996 Ballot Proposals, (visited Sept. 6, 1996) <>.

(109.) Id. at 3.

(110.) See Parent Rights, supra note 107.

(111.) In February of 1997 parents of high school students called for the firing of a public high school history teacher after he supplied freshman students with a list of questions about sexuality. See Elaine Thompson, Parent Wants Teacher Fired; Sexuality Material at issue, TELEGRAM & GAZETTE (Worcester, Mass.), Feb. 18, 1997, at B1. Voicing concern, the president of the school council stated that "since many teachers are using information from different sources, including the Internet, to supplement approved textbooks there should be some type of protocol established to assist them in determining what is appropriate." Id.

(112.) See supra notes 3-8 and accompanying text.

(113.) See supra note 4 and accompanying text.

(114.) See Clinton Starts Computer Aid of $200 M for Nation's Schools, BOSTON GLOBE, Feb. 9, 1997, at A 18 (hereinafter Computer Aid).

(115.) See Jeannine Aversa, Panel Advances Plan to Give Schools Internet Access At Up to 90% of Cost, DAILY RECORD (Morris Co., N.J.), Nov. 8, 1996, at A2.

(116.) See Computer Aid, supra note 114.

(117.) See Aversa, supra note 115.

(118.) See id.

(119.) See Marisa Osorio Colon, Schools Vary Widely in Students Per Computer, HARTFORD COURANT (Conn.), Dec. 7, 1995, at B5.

(120.) See id.

(121.) See John M. Moran, Group Asks Computer Network to Advance Education in State, HARTFORD COURANT (Conn.), Jan. 22, 1997, at A3.

(122.) See Glen Johnson, Weld Seeks Money for Education Technology, PATRIOT LEDGER (Quincy, Mass.), June 7, 1996, at 10.

(123.) See id.

(124.) See id.

(125.) See Smith, supra note 6 and accompanying text.

(126.) See id.

(127.) See Steve Moore, Wilson Plan Would Put Computers in All High Schools: School District Would Have to Come Up With Half the Money, PRESS-ENTERPRISE (Riverside, Cal.), Jan. 7, 1997, at A3.

(128.) Id.

(129.) Id.

(130.) See id. The criticism referred to was voiced by Bill Robinson of the Temecula Valley Unified School District. See id.

(131.) Clinton Gore Cite, supra note I (referencing the 1996 survey entitled, Advanced Telecommunications in U.S. Public Elementary and Secondary Schools).

(132.) In February of 1997, the Reverend Jesse Jackson led a national education conference in Chicago, called "Closing the Gap." See Jake Thompson, Jackson Calls Nation's Attention to Its Educational `Emergency,' KANSAS CITY STAR, Feb. 22, 1997, at A1.

(133.) See Curtis Lawrence, Jackson Calls on Government to Provide Public Education Equity, MILWAUKEE J. SENTINEL, Feb. 24, 1997, at 3.

(134.) See id.

(135.) See President Clinton Prepares to Narrow Gap Between Schools in the Inner City and Suburbs With National Standards (CBS television broadcast, Feb. 23, 1997).

(136.) Id. In further comparing the two schools, CBS revealed that the achievement scores of the students at the affluent school "are among the best in the state, and [that] 90 percent of [the school's] graduates are college-bound." Id. The "[m]ath and reading scores at [the Posen] school are 42 percent below the state average." Id.

(137.) It was noted, for example, that the wealthy Chicago-area school visited by the Reverend Jesse Jackson, spent in excess of $11,000 a year per pupil, as compared with only $5,200 of available tax dollars per pupil in the poor Posen school. See id.

(138.) See Erin E. Kelly, All Students Are Not Created Equal: The Inequitable Combination of Property-Tax-Based School Finance Systems and Local Control, 45 DUKE L.J. 397, 434 (1995).

(139.) See id.

(140.) See id.

(141.) See id.

(142.) See id.

(143.) See Margaret Rose Westbrook, Comment, School Finance Litigation Comes to North Carolina, 73 N.C. L. REV. 2123, 2123-24 (1995). Westbrook analyzes a 1994 suit brought by five low-wealth school districts and some of the school's students, which challenges the way North Carolina public schools are funded. See id. (citing Leandro v. State, No. 94 CVS 520). The author also provides a list of similar suits that have been litigated in state courts from 28 other states. See id. at n.3. These states include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Kentucky, Maryland, Minnesota, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Washington, West Virginia, Wisconsin, and Wyoming. See id.

(144.) The push for equity is likely to continue, and perhaps even increase, as a result of the steady stream of reports that show the large benefits of computer literacy. A recent consulting group survey of 42 school districts in northern New York received media attention because it found a correlation between computers and student achievement. See Shannon McCaffrey, Survey Suggests Computers Help Students Achieve, TIMES UNION (Albany, N.Y.), Feb. 24, 1997, at 132. The survey found that schools which increased their investment in computer technology saw a significant increase in English and math scores. See id. Employment projections also stress the growing need for employees to be computer literate. One recent study indicates that all but eight of the top 54 jobs projected for 2025, require knowledge of computer skills. See Robert Rodriguez, Workshops Boot Up Computer Literacy; Experts Agree Most Top Professions Will Demand High-Tech Skills, FRESNO BEE(Cal.), Feb. 25, 1997, at B1.

(145.) Free speech is protected under the First Amendment. See U.S. CONST. amend. I. Privacy protections have been found under the First, Third, Fourth, Fifth, and Ninth amendments. See Griswold v. Connecticut, 381 U.S. 481, 484-84 (1965).

(146.) Historically, employers freely used technological means for eavesdropping on employees. See Kristen Bell DeTienne & Richard D. Flint, The Boss's Eyes and Ears: A Case Study of Electronic Employee Monitoring and the Privacy for Consumers and Workers Act, 12 LAB. LAW. 93 (1996). Many employers, however, have changed their policies and practices because of legislative efforts and liability concerns. See id.

(147.) See Sarah Nordgren, A Thorny Issue of Free Speech: Professor Uses Northwestern's Web Site to Call Holocaust a `Hoax,' SACRAMENTO BEE (Cal.), Jan. 9, 1997, at A 16.

(148.) Pamela Cytrynbaum, Electronic Hate Tests a University's Commitment to Free Speech, STAR-LEDGER (Newark, N.J.), Jan. 20, 1997, at 57. The decision not to discipline Butz drew heavy criticism from students, particularly since the University announced it was not rehiring a different professor because that professor used one of his engineering classes as a forum to refute Butz's views. See id. The professor, Sheldon Epstein, felt compelled to discuss the subject in class because he was outraged by Butz's, "hate, lies and libel." Id.

(149.) See Tina Nguyen, Orange County Plans to Link Schools, Homes, L.A. TIMES, Feb. 2, 1997, at A3.

(150.) See id.

(151.) See id. "Officials at Kent School District in Washington state have been running a similar system for two years, and resistance has come from both parents and educators. Confidentiality has been a top concern," Id. Critics of that system are concerned that password limits will not be enough to prevent computer hackers from accessing the system. See id.

(152.) See Tara Mack, Fairfax to Buy Computer to Build Student Profiles; Parents Raise Privacy Concerns to School Board, WASH. POST (D.C.), Feb. 28, 1997, at B5.

(153.) See id.

(154.) Mychele Brickner, Fairfax Schools Don't Need Costly Information System, WASH. TIMES, Feb. 27, 1997, at C2.

(155.) See supra notes 62-64 and accompanying text for an explanation of how these devices work.

(156.) See Joseph Mallia, Internet Safeguarding Concerns Area Schools, BOSTON HERALD, Feb. 16, 1997, at 12. Mallia reported that, "[a]ngry parents and city councilors in Boston ... prompted the Mayor to install filters on Boston's public library and school computers to ensure that children would no longer have access to sexually explicit images." Id. An informal survey of many Massachusetts schools showed that schools vary in their approach to the Internet access dilemma. See id. Many schools have not purchased filtering devices but are either considering them, or have chosen to restrict Internet access in other ways. See id. Preventing students from having e-mail accounts or having students sign Internet contracts are two popular alternatives employed by many of the schools. See id. In Oklahoma, school officials recently set up a conference to give schools an opportunity to explore restrictive software options, See Heather Saucier, Web Forum to Eye On-Line Woes, TULSA WORLD, Feb. 18,1997, at AIR

(157.) Edge Work-Group Computing Rep., Internet Access: Net Nanny and Safe-Surf Merge Technologies, Feb. 24, 1997, available in 1997 WL 8021364.

(158.) See, e.g., Internet Use Agreement from Ronnie DeSalvo, Technology Coordinator, Madison School District, (undated) (on file with school district).

(159.) See id. at 2. Children in the Madison Borough School District, in Madison, New Jersey, were asked to sign a contract at the beginning of the 1996-97 school year. See id. This contract, in part, stated that the student "will use the schools' Internet accounts for education and educational research only and will not look for materials that are not of educational value." Id. at 2. The contract goes on to provide that, "[u]sing the Internet in school is a privilege, not a right," and that the school may cancel a student's privilege to use the Internet if a student does not use it in a responsible way. Id. The contract also states that the school district also "denies any responsibility for the accuracy or quality of information obtained through the Internet." Id.

(160.) See id. Parents in the Madison Borough School District were also asked to sign a permission slip at the beginning of the 1996-97 school year, in order for their child to use the Internet at school. See id. The permission slip states that the parent "understand[s] that access to the Internet is designed for educational purposes ... [but that the parent] recognize(s) that it may be impossible for the ... [s]chool [d]istrict to restrict access to all controversial materials, and [the parent] will not hold [the school district] responsible for any materials acquired on [the] network." Id. The form also provides that the district "denies any responsibility for the accuracy or quality of information obtained through the Internet ... [and] that improper or inappropriate use of the Internet by [the parent's] child shall result in revocation of the privilege to access the network." Id. Both the parent and child's Internet contracts used by this school district refer to a separate one-page "Guidelines for Computer and Internet Use," which provides more background on the Internet and explains that the school district will control and monitor students' Internet use, to avoid access problems. See id. at 1.

(161.) After several Capistrano Unified School District students were disciplined for improper Internet use in 1995, the school responded by developing Internet guidelines requiring parental permission. See Bean, supra note 35, at 1. Another news report from 1995, revealed that parental permission was required for student Internet use in the Pattonville, Missouri schools. See Carolyn Bower, On My Honor: Students Take Internet Pledge, ST. LOUIS POST-DISPATCH, Oct. 30, 1995, at A1. It was also reported that the Bellingham, Washington public schools implemented a student on-line policy in 1995. See Phillip Pina, Student Codes of Computer Conduct, USA TODAY, Nov, 15, 1995, at D7.

(162.) School District of the Chathams, Acceptable In-School Use of Computer Network/Computers and Resources, Sept. 1996, File Code 6142.10 (Chatham, N.J.).

Any individual engaging in the following actions when using in-school

computer networks/computers shall be subject to discipline or legal action:

A. Using the computer networks computer for illegal, inappropriate or

obscene purposes, or in support of such activities. Illegal activities

are defined as activities which violate federal, state, local laws and

regulations. Inappropriate activities are defined as those that violate

the intended use of the in-school network. Obscene activities shall

be defined as a violation of generally accepted social standards for

use of publicly owned and operated communication vehicles.

B. Using the computer network/computers to violate copyrights, institutional

or third party copyrights, license agreements or other contracts.

C. Using the computer network in a manner that;

1. Intentionally disrupts network traffic or crashes the network;

2. Degrades or disrupts equipment or system performance;

3. Uses the computing resources of the school district for commercial

purposes, financial gain or fraud;

4. Steals data or other intellectual property;

5. Gains or seeks unauthorized access to the files of others or vandalizes

the data of another user;

6. Gains or seeks unauthorized access to resources or entities;

7. Forges electronic mail messages or uses an account owned by


8. Invades privacy of others;

9. Posts anonymous messages;

10. Possesses any data which is a violation of this policy; and/or

11. Engages in other activities that do not advance the educational

purposes for which computer network/computers are provided.

Id. at 1-2.

(163.) Id. at 2.

(164.) See id at 2-3.

Individuals violating this policy shall be subject to the consequences as

indicated in [a named regulation] and other appropriate discipline which

include but are not limited to:

1. Use of the computer network only under direct supervision;

2. Suspension of computer network privileges;

3. Revocation of computer network privileges;

4. Suspension of computer and computer network privileges;

5. Revocation of computer and computer network privileges;

6. Suspension from school;

7. Expulsion from school; and/or

8. Prosecution by legal authorities.

(165.) See supra notes 1-8 and accompanying text.

(166.) See supra notes 24-32 and accompanying text.

(167.) See supra notes 17-23 and accompanying text.

(168.) See supra notes 38-40 and accompanying text.

(169.) See supra notes 33-37 and accompanying text.

(170.) See supra notes 70-72 and accompanying text.

(171.) See supra notes 103-106 and accompanying text.

(172.) This opinion is primarily based on the invalidation of the "Communications Decency Act of 1996." See 47 U.S.C.A. [sections] 223, supra notes 41-46 and accompanying text. The 1996 Act would have imposed criminal sanctions against adults using the Internet to make illegal contacts with children. See supra notes 41-46 and accompanying text for a discussion of the district court and Supreme Court decisions. The future of other recently adopted state laws that seek to protect children online, is also likely to influence how courts will treat Internet-related cases. See supra notes 53-54 and accompanying text for a discussion of several recently adopted state laws.

(173.) See supra notes 144 and accompanying text.

(174.) See supra note 145 and accompanying text.

(175.) See id.

Sally Rutherford, J.D. Candidate 1998, Rutgers School of Law -- Newark
COPYRIGHT 1998 Rutgers University School of Law - Newark
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Author:Rutherford, Sally
Publication:Rutgers Computer & Technology Law Journal
Date:Jun 22, 1998
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