LM_NET: Library Media Networking
Digital Beat Extra 7/6/2000
E-Rate Activities in the Beltway
by Andy Carvin
Introduction
After an extended period of relative political slumber, the debate over the
role of the government in wiring schools and libraries to the Internet has
picked up steam again in Washington. Recent actions by both Congress and the
Supreme Court may have long-standing consequences for the federal program
known as the E-Rate, as well as for similar government programs at the state
level. The E-Rate and its state counterparts have subsidized thousands of
schools and libraries with billions of dollars in funding in order to
connect these institutions to the Internet.
Protecting Students by Writ:
Imposing Filtering and Acceptable Use Policies
Last week, the U.S. Senate voted to pass two amendments that, if enacted
into law, would add new child safety requirements to recipients of federal
E-Rate funding. The so-called McCain Amendment, named for the legislation's
sponsor, former presidential candidate and current Senate Commerce Committee
Chairman John McCain (R-AZ), would impose Internet filtering requirements on
all schools and libraries that receive E-Rate subsidies. These filters,
which would be selected at the local level, would be put in place to protect
students from online violence, pornography and "any other material that the
library determines to be inappropriate for minors." If a school or library
refused, they would be disqualified from receiving federal E-Rate subsidies.
Currently, there are no such filtering requirements of any type associated
with the E-Rate.
Working its way through the Senate since it was first proposed as the Safe
Schools Internet Act in February 1998, the latest incarnation of the McCain
proposal passed as an amendment to a Labor/Education/Health and Human
Services appropriations bill by a 95-to-3 vote margin. (A House version of
the bill had previously been passed as part of a 1999 juvenile justice
bill). In response to its passage, McCain Amendment opponent Senator Patrick
Leahy (D-VT) joined with Senator Orrin Hatch (R-UT) and successfully
attached a provision that would require Internet service providers to supply
filtering software at no charge to its customers. Such a provision, Sen
Leahy argued, would at least supply schools and libraries the filtering
tools they would need to make an informed choice.
A second E-Rate-related amendment, authored by Senator Rick Santorum (R-PA),
also passed the Senate by an easy margin. In a 75-to-24 vote, the Senate
approved Sen. Santorum's alternative to the McCain Amendment. This proposal
would allow schools and libraries to choose between imposing filtering
software and implementing an Acceptable Use Policy (AUP) in order to receive
E-Rate funding. AUPs are written agreements between the school, students and
parents that acknowledge the rules of appropriate student Internet use and
the consequences for breaking them. Both filtering and AUPs have been used
successfully in schools across the country, but Sen. Santorum's AUP
requirement allows for more flexible local decisionmaking and lessens the
concerns over Internet censorship that are usually raised over filters.
"As parents, elected officials, teachers and members of the community, it is
our responsibility while promoting the tremendous potential of the Internet
to provide a safe and responsible learning environment in our schools and
libraries across the country," explained Sen. Santorum after the passage of
his amendment. "My legislation addresses the concerns of all parties by
giving communities the flexibility to develop and tailor Internet use
policies to its needs and resources, without tying the hands of parents and
teachers with unreasonable mandates and bureaucracy."
The McCain Amendment passed by a wider margin than the Santorum Amendment,
but many free speech advocates have expressed greater acceptance of
Santorum's AUP plan. As noted in a previous Digital Beat Extra
(http://www.benton.org/News/Extra/lib052099.html), Internet filters are not
an exact science. Organizations such as the American Libraries Association,
the Electronic Frontier Foundation and PeaceFire.org have all expressed
concerns that filtering software often restricts users from valuable content
while still letting "inappropriate" content get through to users. Because no
filter can truly guarantee that only inappropriate content is blocked,
requiring filtering at schools and libraries raises serious First Amendment
questions as well challenging the ability of local institutions to make
their own decisions regarding child safety policies.
Following the July 4 recess, House and Senate officials are expected to meet
in conference and work out a joint version of the bill. Considering the
vastly different approaches of the McCain and Santorum proposals, it is
difficult to surmise where the final version of the legislation will end up,
though Sen. McCain is expected to put up a tough fight for his amendment.
The Supreme Court Allows Edtech Funding for Parochial Schools
The U.S. Supreme Court made headlines in the E-Rate arena through actions in
two major cases, one now settled and the other pending. On June 28, the
court ruled that the government has the right to supply parochial schools
with education technology equipment, including computer hardware.
In 1985, a group of Louisiana families sued the government to prevent it
from distributing federally-funded computers, software and other equipment
to local parochial schools. The funding in question, formerly known as
Chapter Two funding and now called Title VI funding, included approximately
$16 million per year as allocated by the Elementary and Secondary Education
Act. The families argued that federal funding of religious schools, even in
the form of computer supplies, was tantamount to breaching the separation of
church and state. Defenders of the program argued that because the funding
went to religiously-neutral technology tools, there was no way to construe
the action as governmental promotion of religion.
Last week's 6-3 Supreme Court ruling in Mitchell v. Helms supported the
position of the parochial schools and agreed with the argument that Title VI
funding could go to religious schools as long as it was spent in a "secular,
neutral and nonideological" manner. In the words of Justice Clarence Thomas,
who authored the majority opinion:
We see no basis for concluding that Jefferson Parish's
[Title IV] program "has the effect of advancing religion...."
[Title IV] does not result in governmental indoctrination,
because it determines eligibility for aid neutrally, allocates
that aid based on the private choices of the parents of school-
children....
Justice Thomas' majority opinion, joined by Chief Justice William H.
Rehnquist and Justices Antonin Scalia and Anthony Kennedy, effectively
opened the door to the governmental funding a range of programs at religious
schools, including voucher programs. In a concurring opinion that helped
supply a majority in the decision, Justices Sandra Day O'Connor and Stephen
Breyer expressed serious concerns over allowing carte-blance federal funding
of parochial schools. While the particulars of this case led them to support
the majority outcome, Justices O'Connor and Breyer insisted that the
decision to fund religious schools must be determined on a case-by-case
basis. As Justice O'Conner wrote in their concurrence, the "expansive scope"
expressed by Justice Thomas was "troubling." Justices David Souter, John
Paul Stevens and Ruth Bader Ginsburg dissented.
Advocates for the separation of church and state did not hesitate to
criticize the ruling in the strongest terms. "The Court's ruling only
further blurs the church/state line, adding to the confusion already
experienced by school districts and taxpayers," said Ralph Neas, president
of the People For the American Way Foundation. "This ruling increases the
risk that citizens will be forced to subsidize a school's religious mission,
violating the First Amendment's prohibition against government establishment
of religion."
"The Supreme Court certainly took a sledgehammer to the wall of separation
between church and state today," said Rev. Barry W. Lynn, executive director
of Americans United for the Separation of Church and State. "Thanks to this
misguided decision, taxpayers will now be forced to pay for an endless
parade of computers and other expensive equipment for religious schools....
At public expense, religious schools can now have students surf the Internet
to read the Bible in religion classes, learn theology from Jerry Falwell or
download crucifixes as screen savers."
Supporters of Title VI funding, however, were ecstatic at the decision. Dr.
Leonard DeFiore, president of the National Catholic Educational Association
(NCEA), called it a "visionary and landmark decision" that will help connect
every school and library to the Internet, no matter their sectarian
affiliation. "The Internet is a global classroom to which all students --
public and private -- must have entry," he said. "This ruling upholds the
Title VI program and acknowledges that computers and software are as vital
as yesterday's textbooks in instructing our young people."
For many people, the impact of the Mitchell v. Helms decision will be felt
greatest in the context of the school vouchers debate. According to the
standard laid out by Justice Thomas, government vouchers to subsidize
attendance at parochial schools would be permissible. Already in use in
Wisconsin, Ohio and Florida, school vouchers and their supporters will
undoubtedly be buoyed by the ruling. Conversely, opponents of the voucher
movement are already lining up to lambaste the decision.
"It is really a dishonest opinion both in its interpretation of precedent
and its characterization of the concerns expressed in the dissent," said
Leslie Harris, a Washington-area attorney who represents pro-edtech
organizations including the Consortium for School Networking.
However, the fact that Justices O'Connor and Breyer put forth a more limited
interpretation for parochial subsidies decreases the likelihood of a
constitutional slam-dunk for the voucher movement.
"If the [Thomas] opinion were a majority one, it would provide a blueprint
for vouchers and more," Harris continued. "However, the concurrence written
by O'Connor is very narrow, simply finding under current precedents that the
loan of computers and other material is no different than the loan of
textbooks already permitted, provided that safeguards against misuse were in
place. She finds that the certification process in which the schools certify
that the computers are not to be used for religious indoctrination is such a
safeguard."
E-Rate Reaches Supreme Court Docket
The Mitchell v. Helms decision is not expected to affect the E-Rate program
directly, for the court's ruling applied specifically to Title VI's
dissemination of computer hardware, not FCC-regulated telecommunications
services. However, during the Supreme Court's upcoming 2000-2001 docket, the
Justices will rule on a long-standing case that will determine whether the
process used to fund the E-Rate is constitutional.
On June 5, the Court announced that it would hear arguments in the case
commonly known as GTE vs. FCC. First filed in 1997 by GTE, BellSouth, SBC
Communications and other local telephone companies, the lawsuit argued that
the FCC was unfairly taxing the companies in order to cover the costs of the
E-Rate program. A federal court ruled in favor of the FCC, and by the time
the case was under appeal in early 1999, both BellSouth and SBC
Communications had dropped out of the case.
Things continued to go poorly for GTE when the appeals court released its
ruling in July 1999. On one hand, the three-panel court acknowledged that
the FCC's implementation of the E-Rate program had exceeded its authority:
While section 254(h) [of the 1996 Telecommunications Act] plainly
authorizes the FCC to support discounted telecommunications
services to schools and libraries, ... The best reading of the
relevant statutory language nonetheless indicates that the FCC
exceeded its authority by mandating discounts for internet access
and internal connections.
On the other hand, the appeals court concluded that the FCC's actions were
not severe enough to warrant overturning. "Although we agree with GTE that
the statute and its legislative history do not support the FCC's
interpretation," the court said, "the language of the statute is ambiguous
enough to require deference."
When it accepted the case for next year's docket, the Supreme Court decided
to narrow the issue to whether or not the FCC's current formula for
collecting E-Rate funding from telephone companies is constitutional. So
while it may easy to misconstrue the case as being a sink-or-float situation
for the E-Rate, the impact of the decision may be less obvious to E-Rate
recipients. Simply put, the Supreme Court will rule on the methodology for
collecting E-Rate funding, not the constitutionality of the E-Rate itself.
"GTE's issue before the Supreme Court is a narrow one and I wouldn't expect
a disruption in the program even if they prevail," concludes Harris.
The Supreme Court is expected to rule on the case by June 2001.
---
Related Links:
Helms v. Mitchell Ruling
http://supct.law.cornell.edu/supct/html/98-1648.ZO.html
People for the American Way
http://www.pfaw.org
American Library Association
http://www.ala.org
Electronic Frontier Foundation
http://www.eff.org
PeaceFire
http://www.peacefire.org
Americans United for Separation of Church and State
http://www.au.org/
National Catholic Education Association
http://www.ncea.org/
GTE v. FCC 5th Circuit Decision
http://www.ca5.uscourts.gov:8081/ISYSquery/IRLA2D.tmp/1/doc
---------------------------------------
(c)Benton Foundation 2000. Redistribution of this electronic publication --
both internally and externally -- is encouraged if it includes this message.
This service is available online at (www.benton.org/News/Extra).
Benton's Communications Policy Program seeks to promote equity, access and a
diversity of voices. CPP researches and reports on communications
technologies and practices, legislative and regulatory debates and industry
trends. It urges the nonprofit, government and corporate sectors to
acknowledge their shared public responsibility and to apply their unique
strengths in creating a communications environment that meets educational,
civic and social needs. CPP works primarily in four issue areas: the Digital
Divide, E-commerce, Education Technology and Public Media.
*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*=*
***********************************
Andy Carvin
Senior Associate
Benton Foundation
andy@benton.org
http://edweb.gsn.org/andy
http://www.DigitalDivideNetwork.org
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