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

• Author: Rutherford, Sally

INTRODUCTION

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.

1. THE SPECIAL PROBLEM OF CHILDREN USING THE INTERNET

   1. 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...