ALA Filtering Suit Excludes Schools

In January, the big question at the American Library Association's midwinter meeting was what to do about the just-passed Children's Internet Protection Act, known as CIPA. The law mandates Internet filters in public and school libraries that receive e-rate money and other federal funds. ALA's executive board ultimately decided to file suit against the measure. But another thorny question, discussed quietly among association leaders, was whether, from a strategic standpoint, ALA should bring the suit on behalf of both its public-library and school-library members.

Last month, ALA's executive board answered that question, announcing that the association would bring suit on behalf of public libraries only. Why? Because the attorneys working on the case say that's the right legal strategy. The suit, charging that the filtering law is unconstitutional, was filed in federal court in Philadelphia on March 20; the American Civil Liberties Union (ACLU) filed a similar suit the same day.

Whatever their legal justification, ALA leaders are taking pains to show they're not abandoning their school constituents. They released a long question-and-answer sheet explaining their decision and say the association stands ready to assist any school organization that files suit against CIPA. "Believe me, we care very deeply about schools and want very much to see [the school] case brought forth," says ALA President Nancy Kranich.

So why does the lawsuit leave school libraries out? According to ALA's law firm, Jenner & Block, the main reason is that from a legal perspective, ALA does not have "standing" to sue on school libraries' behalf. Standing means that you or the people you represent are directly "injured" by what you're challenging—in this case the CIPA law. Technically, it is school districts, or schools, that receive federal funds through, say, the e-rate or the Elementary and Secondary Education Act. So in a legal sense, it's the district or school that is injured, not the library.

"It became quite clear in discussions with legal counsel that while we might pursue the school library area [of the case], we had absolutely no chance of winning it, because school libraries are not considered a discrete area of the building," says Ken Haycock, director of the library school at the University of British Columbia, a member of ALA's executive board and an ALA presidential candidate.

Another problem, say Haycock and others, is that unlike public libraries, schools do act in loco parentis, or as surrogate parents, and the courts have given them more leeway to restrict speech. Indeed, according to an SLJ survey ("Filtered or Unfiltered?" January 2001, pp. 42–47), 53 percent of school libraries already use filters, more than twice the percentage of public libraries that do so. And while the courts have not looked favorably on laws, like CIPA, that require public libraries to install filters for adults, the use of filters in schools has gone largely unchallenged.

Still, attorneys for both ALA and ACLU say they believe the CIPA law is just as unconstitutional in schools as in public libraries. According to Theresa Chmara, of Jenner & Block, filters are too crude to block the speech the CIPA law targets—obscenity, child pornography, and material considered "harmful to minors"—without also blocking constitutionally protected speech. "In the same way that filtering won't work in a public library, it won't work in the school context," Chmara says.

CIPA opponents say if they can win the case for public libraries, it will help the school library case. A public library victory "puts you in a stronger position," says Haycock. "We may not have standing but we may have a better opportunity of involving other players [such as school associations]." Though ALA has contacted school groups about the issue, none of these groups has so far taken up the legal case on behalf of schools, Kranich says.

Nor has there been an outcry from school librarians over their exclusion. Harriet Selverstone, president of the American Association of School Librarians (AASL), a division of ALA, says even though she opposes CIPA, she understands the legal issues constraining ALA. Carrie Gardner, who chairs AASL's intellectual freedom committee, says she, too, thinks "ALA has made the correct strategic move." But Gardner is concerned that too few school librarians are up in arms about the filtering mandate and may just go along with whatever their district does. "School librarians should be actively involved in the selection of the filter," she says, "to be sure it has the minimal impact on students."