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I recently posted a message that indicated my opinion that schools should
allow library media specialists to have the ability to temporarily override
the Internet filter to review a site that has been blocked and to make the
decision that access to the site be provided to the student. I indicated
that my position was supported by the Supreme Court decision in CIPA.

I have been asked privately to provide more insight on this from a legal
perspective. This message will outline the legal analysis that supports my
prior statement. As with my prior message, feel free to forward this to your
administrators and tech director or anyone else.

Here is the decision:
http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf.

The key language is on page 11-12 of the decision.

"Like the District Court, the dissent faults the tendency of the filtering
software to "overblock"--that is, to erroneously block access to
constitutionally protected material that falls outside of the categories
that software users intend to block. ... Due to the software's limitations
'(m)any erroneously blocked [Web] pages contain content that is completely
innocuous for both adults and minors...' Assuming that such erroneous
blocking presents constitutional difficulties, any such concerns are
dispelled by the ease with which patrons may have the filtering software
disabled. When a patron encounters a blocked site, he need only ask the
librarian to unblock it or (in the case of adults) disable the filter. As
the District Court found libraries have the capacity to permanently unblock
any erroneously blocked site ... And the Solicitor General stated in oral
argument that a 'library man ... Eliminate the filtering with respect to
specific sites ... and at the request of a patron.'"
 
You can find the statute here:
http://www.ala.org/ala/washoff/WOissues/civilliberties/cipaweb/legalhistory/
cipatext.pdf. The specific provision of CIPA states "An administrator,
supervisor, or person authorized by the responsible authority ... may
disable the technology protection measure concerned to enable access for
bone fide research or other lawful purpose." Note this provision is included
in both the section that applies to schools and to public libraries.

Both Kennedy and Breyer's opinions include language that references a
"facial challenge" to the law. What this means is that they were both
focusing solely on the provisions of the CIPA law -- leaving open the
possibility that the practices of libraries -- or schools -- could be
challenged if the libraries or schools were not implementing the filter in a
manner that protected the constitutional rights of patrons. And what is
clearly necessary to support the constitutionality of the use of filtering
is for people who are working directly with patrons, which includes
students, to have the *easy* ability to *promptly* override the filter to
provide access to an erroneously blocked site!

So CIPA was ruled constitutional BUT this does not mean that schools can
implement filtering in a way that interferes with constitutional rights of
students to access information. If you are a school that has not provided
for such easy and prompt overriding of the filter, you are infringing on the
constitutional rights of your students.

It is also necessary to include in this discussion a prior court decision
about the rights of students to access material. The case of Pico v. Island
Trees 457 US 853 (1982) is the leading Supreme Court decision on the
constitutional rights of students to access material in a school library.
Here is some key language from Pico:

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

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

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

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

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


The other thing that is really important in the Pico decision is the
emphasis on local control. Here from the majority opinion:

"(W)e have 'repeatedly emphasized ... the comprehensive authority of the
States and of school officials ... to prescribe and control conduct in the
schools."

And here from the dissent:

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

ALL of the Supreme Court justices are in agreement about the importance of
local control.

But when school districts implement filtering, they are turning over
authority for decision-making about the appropriateness of information to
third party commercial filtering companies. These filtering companies
protect all information about what and how decisions are made about what to
block as trade secrets. The ability to override, both temporarily or
permanently, is the ONLY WAY for school districts to retain local control.

Given the strength of the language in the Pico decision, school districts
can't simply totally turn over the decision of what students can and cannot
access to filtering companies. In other words, the Supreme Court did NOT
overrule Pico by its decision in the CIPA case. Students still have rights
to access information -- this was reiterated by the court. And the only way
to protect student's constitutional rights is to ensure that the filter can
be *easily* and *promptly* overridden.

This analysis does not immediately lead to the conclusion that all school
librarians must have the right to override the filter. This is my
recommendation. If, under the Supreme Court ruling on CIPA, it is clear that
it is necessary for someone to be able to easily make a prompt decision to
override the filter to allow students to have access to material that has
been inappropriately blocked, who are the most appropriate staff people to
be making these decisions? The answer for those who need things spelled out
is: The school staff members who have received the most professional
training in reviewing material and making decisions about the
appropriateness of that material for students. To wit (she says tossing in
some legalese): Library media specialists! (Duh!)

Presuming this message might be forwarded to technology directors, here are
some words of guidance for them:  What astounds me is the number of
technology directors who would hold the decisions made by a search "spider,"
a low level employee of a filtering company, or themselves as superior to a
decision made by a trained information professional. Unless you have
received the degree of training in information sciences that your school's
library media specialists have received, you are unqualified to make
decisions about overriding the filter. And filtering companies have been
found to be deficient in making such decisions by the US Supreme Court.

And some words of guidance for administrators: It is my opinion that
effective leadership is grounded in making decisions about who are the most
appropriate staff members to be charged with the certain responsibilities,
ensuring that these staff members have the authority and ability to assume
such responsibilities, and holding them accountable for the decisions they
make. If you are letting the filtering company or your technical services
personnel make the decisions about what sites are appropriate for students,
you are not being an effective leader. Your district's library media
specialists are professionally trained to make such decisions and should
receive the authority and ability to do so.

Nancy

-- 
Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use
http://csriu.org
http://cyberbully.org
nwillard@csriu.org

Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social
Cruelty, Threats, and Distress, a resource for educators, is now available
online at http://cyberbully.org.

Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Use the Internet
Safely and Responsibly. Jossey-Bass (forthcoming)

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