Return to Cyberspace Law & Policy Institute Home Page.
While there are some detractors, most people agree that the potential benefits of access to cyberspace make these initiatives eminently worthwhile. Clifford Stoll has received much national attention with the recent publication of Silicon Snake Oil: Second Thoughts on the Information Highway, and Stephen L. Talbott has set forth some important warnings in The Future Does Not Compute: Transcending the Machines in Our Midst. But people who become familiar with the vast array of valuable resources that are already on the Internet and then begin to learn about some of the exciting educational projects that are now being developed to utilize e-mail and the World Wide Web in creative and interactive ways cannot help but be impressed. And anyone who has sat down at a computer with children or teenagers and has experienced their excitement cannot help but realize the great power and potential of this new medium.
Two major problems have emerged as K-12 public school districts expand and enhance their ability to access cyberspace. One problem focuses on educational quality, with the inquiry centering on how to employ the new technology in ways that will enhance the educational program. A second problem focuses on the apparent failure of all concerned to provide equal access to cyberspace. In the past, activists have used the law to shape educational policy by lobbying for new statutes and filing high profile lawsuits. And access to cyberspace has become an issue that is particularly ripe for just this sort of activism.
In the area of educational quality, examples of laws that have changed the educational landscape include federal and state statutes providing incentives for school restructuring and the creation of standards for authentic student performance (see, e.g., the Clinton Administration's Goals 2000 legislation, 20 U.S.C. Sections 5801-6144), federal legislation providing free appropriate public education for the disabled (see, e.g., the Individuals with Disabilities Education Act, 20 U.S.C. Sections 1401-1461), mandatory and permissive state statutes focusing on monolingual and bilingual language instruction (see, e.g., California's Bilingual-Bicultural Act of 1976, Cal. Educ. Code Sections 52160-52176; California's "Sunset Statutes" (providing funds for programs that are not renewed), Cal. Educ. Code Sections 62000-62002.5; California's 1994 Senate Bill 1969, Cal. Educ. Code Section 44253.10), and a variety of federal and state statutes providing families with greater freedom to choose schools for their children.
Under these statutory models, one can envision a number of different legislative approaches that would not only mandate access to cyberspace, but would seek to ensure through assessment and compliance procedures that expensive new equipment does not simply sit in the back of the room and gather dust.
Like Goals 2000, new legislation can provide incentives for schools that connect up to the Internet and can encourage the drafting of standards that would set forth relevant goals and expected outcomes. Like the special education legislation, a new statutory scheme might recognize the basic right of all students to access online information, and might set forth required procedures (such as individualized education plans) for implementing this right. Like the statutes that seek to enhance both primary language instruction and English language instruction for English language learners, new legislation might set forth both the details of innovative educational approaches to cyberspace and the requirements for both pre-service and in-service training in this regard. And like the school choice legislation, free market principles might be employed to encourage the formation of charter schools and schools within schools that focus on developing an Internet-based pedagogy.
With regard to litigation, courts have not been receptive to negligence lawsuits argued under a theory of educational malpractice. However, they have been very receptive to "adequacy-based" school finance litigation under the education articles of state constitutions in recent years. In Kentucky (Rose v. The Council for Better Education, Inc., 790 S.W. 2d 186 (Ky. 1989)), Massachusetts (McDuffy v. Secretary of the Executive Office of Educ., 615 N.E. 2d 516 (Mass. 1993)), Alabama (Alabama Coalition for Equity, Inc. v. Folsom, CV 90-883-R, Montgomery County Circuit Court (1993)) and Maryland (Board of School Commissioners of Baltimore City v. Maryland State Board of Educ., No. 95258055/CL202151, Circuit Court of Baltimore City (Pending, 1996)), plaintiffs have tied school funding issues to an increase in educational quality. In these lawsuits, courts are often asked to set forth basic standards of educational quality that school districts throughout the state must follow.
Following this model, plaintiffs in certain states that are particularly ripe for school finance litigation might wish to include references to cyberspace and online access in their prayers for relief. A reasonable court order could then drive statewide reforms.
In the area of equity, major federal and state lawsuits have not only driven educational policy directly, but have spawned a variety of local statutes and policies that seek to maximize equal educational opportunity for all students. Basic equity frameworks that have been successfully employed by plaintiffs include the Equal Protection Clause of the Fourteenth Amendment (see, e.g., Brown v. Board of Education, 347 U.S. 483 (1954); Plyler v. Doe, 457 U.S. 202 (1982)); the equal protection guarantees of state constitutions (see, e.g., Serrano v. Priest, 18 Cal. 3d 728 (1976); Thomas K. Butt v. State of California, 4 Cal. 4th 668 (1992)); Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d (see, e.g., Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984)); Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681 (see, e.g., Sharif v. N.Y. State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989)); and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (see, e.g., Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (C.D. Cal. 1986)).
If the figures do not change and certain segments of society continue to have much greater access to online information and activities than others, one might envision a number of high profile, equity-related lawsuits at both the federal and state levels. Frameworks that might be especially useful in this regard include Fourteenth Amendment heightened scrutiny (infringement of the right of advancement on the basis of individual merit), California State equal protection (infringement of the fundamental right to an education; discrimination on the basis of socioeconomic status), and Title VI disparate impact (discrimination on the basis of race, color, or national origin).
In addition to the models outlined above in the areas of equity and excellence, activists wishing to shape educational policy in this context might wish to focus on legal theories addressing access to information. In addition to the general "universal service" provisions under the Telecommunications Act of 1996 (see generally 104 Pub. L. No. 104 Section 254), prospective plaintiffs may seek to rely upon the right to receive information and ideas set forth by the U.S. Supreme Court in the First Amendment case of Board of Education v. Pico, 457 U.S. 853 (1982).
The school choice policy research of Professors Michael Olivas and Amy Stuart Wells with regard to information and access is particularly relevant in this context. Olivas found that a major flaw in school choice proposals was the failure to address the inability of certain members of our society to access information about the choices available to them. See Olivas, Information Access Inequities: A Fatal Flaw in Educational Voucher Plans, 10 J. of L. & Educ. 441 (1981). Wells found that too often it is the disadvantaged who are denied information that could lead to more informed choices. See Wells, Choice in Education: Examining the Evidence on Equity, 93 Teachers College Record 142-147 (1991).
In an era that has increasingly come to be known as the information age, those with access to information have a growing advantage over those who do not. Given the recent literature that has come out of both the legal community and the education community, educational policymakers cannot afford to ignore the policy imperative that has emerged as a result of the unprecedented growth of the online world.
Return to Cyberspace Law & Policy Institute Home Page.