Law & Courts

ACLU Puts Pressure on Districts to Ease Internet Filtering

By Ian Quillen — October 17, 2011 9 min read

For most of last school year, Nowmee Shehab never thought twice about using school computers to pull up websites of the Trevor Project, the It Gets Better Project, or the Gay-Straight Alliance, as she searched for resources for her high school’s own GSA club.

Then one day, the sites were blocked.

“It was surprising,” says Shehab, who at the time was a senior and the first-ever GSA president at Brookwood High School, part of the 161,000-student Gwinnett County, Ga., school system. “The school had been really supportive, so that was really a little shocking to me, and it just happened out of the blue.”

But despite that initial support for Shehab—now a freshman at Smith College in Northampton, Mass.—and despite assurances from the district that it had no intention of infringing on student rights, the school district’s decision to activate a filter that blocks educational, nonsexual websites with a pro-lesbian, gay, bisexual, and transgender viewpoint while keeping open sites with an opposing view could put the district in a legal battle with the American Civil Liberties Union.

In a controversy that spotlights the subject of student rights in the digital age, Gwinnett County could potentially join the 4,100-student Camdenton, Mo., school system as the second district to face legal action from the New York City-based ACLU in its “Don’t Filter Me” campaign.

The nation’s best-known advocacy group on civil liberties acknowledges that none of the districts contacted in the 24 states where it has investigated school filtering practices appears to be maliciously targeting LGBT or allied students.

“We haven’t yet encountered a school district who wants to filter out websites like It Gets Better and the GSA network,” says Joshua A. Block, a staff attorney for the ACLU’s National LGBT Project. “The most friction we’ve run into so far has been school districts that are sort of reluctant to disable the filter. I don’t always know what the motivations of those filters are. Whether it’s a lack of understanding or fear, I’m not sure.”

Still, the ACLU argues filters that prevent access to information on only one side of an issue—in this case, matters of sexual orientation—based on the ideas and not the educational relevance of the content breaches a student’s First Amendment rights, as well as the rights of GSA groups to access school resources under the federal Equal Access Act.

Many districts contacted by the ACLU have already disabled “LGBT,” “alternative lifestyle,” or “education lifestyle” filtering categories that were actually created with the intention of separating educational LGBT content from more questionable sexual material.

Understanding Filtering Laws

For the time being, the Camdenton and Gwinnett County districts are allowing students and staff members to request access, on a case-by-case basis, to blocked sites that comply with district rules.

But other districts will likely join Camdenton in contesting the ACLU, which filed its first lawsuit of the campaign against the south-central Missouri district in August. Gwinnett County is still evaluating its options, according to a district spokeswoman.

Along those fault lines could emerge new norms for thinking about free speech and student rights in the digital classroom.

“We’re going to see more and more of this stuff,” says William Koski, the founder and director of the Stanford Law School’s Youth and Education Law Project, based in Palo Alto, Calif. “And it does sort of strain our old legal principles. We’re going to have to come up with new tests and rules and ways of thinking about it.”

To date, laws governing Internet filtering—principally, the Children’s Internet Protection Act, or CIPA—have been specific to online communications. Passed in 2001, CIPA has been the driving force behind most school filtering. It requires schools to filter material that is obscene, defined as child pornography, or otherwise deemed harmful to minors; devise a system for monitoring online activity; and implement a policy to enforce online safety and security measures. Schools found in violation risk losing eligibility for the federal E-rate program, which helps pay for school and library Internet connections.

The ACLU asserts that allowing access to the sites in question in the Don’t Filter Me campaign would in no way threaten compliance with CIPA. Districts like Camdenton and Gwinnett County disagree, arguing that while some sites the ACLU mentions are acceptable, others allowed with LGBT-specific filters turned off include content that would violate the federal law.

“We certainly do not want to violate students’ and staff members’ constitutional rights, but at the same time we do want to protect our students and staff from inappropriate material on the Internet,” says Tim Hadfield, the superintendent of the Camdenton R-III district. “If there are options, we certainly would look at those options, but keeping those things in mind.”

The Alliance Defense Fund, or ADF, a legal group based in Scottsdale, Ariz., that was founded, according to its website, to protect the constitutional right to religious freedom, wrote a 10-page letter advising Gwinnett County not to alter the settings on its filtering software from Sunnyvale, Calif.-based Blue Coat Systems Inc. The letter argued that lifting an LGBT filter would allow access to sexually inappropriate material, including sites that give explicit advice on gay, bisexual, and alternative dating and sexual relations.

The ADF also wrote that the ACLU’s First Amendment and Equal Access Act arguments are both flawed because they apply U.S. Supreme Court decisions from 1982 and 1990 in which the case facts apply to control over more traditional brick-and-mortar resources and not Internet use. The 1982 case, in a highly splintered decision, ruled that school libraries were bound by the First Amendment to only remove books based on educational or age appropriateness, and not based on viewpoint, which was originally supported by advocates for after school Bible-study groups. The 1990 case said the Equal Access Act assures equity in access to benefits provided by the district to extracurricular clubs.

“A public school district’s decisions regarding what Web content to make available to students are curricular decisions,” the letter states, “and the case law is clear that public school districts have broad authority over curricular matters.”

Block, from the ACLU, concedes those rulings came during a different era of education, but says the same legal principles used in them apply to a contemporary classroom with digital resources.

“One of the most important First Amendment values is viewpoint neutrality,” Block says. “The purpose of a school library and the purpose of school computers are to give research tools to help students explore issues on their own. And it skews that process to have a viewpoint-based filter that says you can access one set of views about this issue but not another set of views.”

Changing Practices

Meanwhile, Block says, he has been heartened by most of the responses to the Don’t Filter Me campaign, which has prompted many schools to change their filtering practices, and in the process, uncover elements of filtering systems that, while far more nuanced than the early Web filters of the 1990s, still show imperfections.

One of the biggest issues has been grasping the meaning of an LGBT filter in the first place, how it differs from a filter that targets pornographic content, and who exactly has the information to make the decision. Software makers often sell their products through intermediary vendors, who may or may not thoroughly educate purchasing districts properly on the nature of a product’s filtering categories. And further, deciding to allow a wide range of educational content on an organizational level doesn’t necessarily mean the decision is properly executed.

“A lot of times, it’s someone on the chief technology officer’s staff that is more involved” in a filtering misstep, says Steve Schick, a spokesman for Blue Coat. “Sometimes, this doesn’t come up to the CTO level. … There’s kind of the difference between the policies that they make from a kind of organizational standpoint versus the way those actually get implemented in terms of technology.”

‘Impediment to Effective Learning’

Some organizations have been working recently to take the decision out of individual technology staff members’ hands. For example, the Missouri Research and Education Network, or MOREnet, announced in August that it would disable an “alternative lifestyles” category in the filtering software created by Guelph, Ontario-based Netsweeper Inc., which the consortium distributes to more than 100 districts in the state.

Block, from the ACLU, praises all district steps to turn off LGBT-specific filters, but argues that software companies need to take such efforts further by scrapping those categories altogether.

Bakersfield, Calif.-based Lightspeed Systems has done exactly that, disposing of its “education lifestyles” category, opting instead to classify LGBT sites across the same spectrum as sites devoted to vegetarianism or environmentalism, for example. School administrators can still manually block individual sites.

“The ACLU’s point was that we want these students to get information to help understand themselves and understand society, and find people to connect with,” says Amy Bennett, Lightspeed Systems’ marketing director. “I think this is important in a broad sense.”

While LGBT issues have proved to be a lightning-rod in the filtering debate in recent months, education technology advocates note that other disputed educational content is subject to unintentional blocking.

Keith Krueger, the chief executive officer of the Washington-based Consortium for School Networking, or CoSN, says websites dealing with sexual health, including those belonging to groups such as Planned Parenthood, are also among those targeted.

On a broader level, data released from Project Tomorrow, an Irvine, Calif.-based nonprofit education research group, found restrictive Internet filtering as the top complaint of more than 300,000 students surveyed.

“There’s no question from a student or teacher perspective that they continue to feel that filtering is a major impediment to effective learning, and that it’s burdensome,” Krueger says.

But Krueger adds that administrators are less likely to think the same way, especially when it comes to issues that may be particularly sensitive in the community, including sexuality.

Block agrees, saying many districts contacted by the ACLU hesitated at first not because they disagreed with the ACLU’s position, but because they feared negative public reaction.

Steve Dantinne, the supervisor of technology for the 10,000-student Vineland, N.J., school district, says he appreciates that perspective. While Vineland eventually unblocked the LGBT filter on its Blue Coat software, Dantinne says his department chose to block the category originally not to push an agenda, but to cover its bases.

“My goal, and it will always be my goal, is to err on the side of caution, for the parents, for the students, and for everyone involved,” Dantinne says. “I guess I should’ve done more research into exactly what areas the LGBT category covered in the sites themselves.”

A version of this article appeared in the October 19, 2011 edition of Digital Directions as When Educational Content Gets Blocked

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