The New York Times
Wednesday, February 17, 1999

Virginia Law Could Hamper Educators at State Schools

by Pamela Mendels, mendels@nytimes.com

In a unanimous decision last week, a three-judge federal appeals court panel dropped a bomb on some faculty members at public universities and colleges in Virginia. Overturning a lower court decision, the judges upheld a 1996 law requiring state employees, including professors at state institutions, to get permission from their supervisors before using state computer equipment to access sexually explicit material.

For those who had opposed the law in court, the decision came as a blow to the notion of academic freedom. "When you attempt to tell state university faculty they may not have access to constitutionally protected material they deem necessary, that is a very worrisome concept indeed", said Robert M. O'Neil, a University of Virginia law professor who helped write a friend of the court brief opposing the law on behalf of several groups, including the American Association of University Professors.

But for William Henry Hurd, senior counsel for the Virginia Attorney General's office, the judge's decision was a nod to common sense and the notion that taxpayers, as employers, have a right to demand that their employees do not use work time or resources to look at online pornography. The decision, he says, will have no effect on wide-ranging inquiry on campus. "We don't believe academic freedom is violated here", he said.

For now, the panel's decision has little impact beyond Virginia. O'Neil, who is also founder of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., said he had heard of no other attempts to introduce similar legislation in other states.

And pending legal action could prevent the law from taking effect in Virginia, according to Christopher A. Hansen, a staff lawyerfor the American Civil Liberties Union, which represented the plaintiffs in the case. The statute could also be blocked by a bill passed recently by the Virginia House of Delegates, which would repeal the law and replace it with an Internet use policy to be drawn up by the state's department of personnel and training.

That proposal, which is awaiting action by the State Senate, was approved in the shadow of a federal district court decision declaring the law unconstitutional. The appeals court decision last week reverses the lower court ruling.

University officials are just beginning to think through how they will respond to the law. James V. Koch, president of Old Dominion University in Norfolk said that the responsibility for handling requests to view sexually explicit material at that institution would probably fall to the school's provost and vice president for academic affairs. Decisions, he said, would "be based on whether the request is legitimately related" to the faculty member's research and teaching needs. But Koch also said the law would be almost impossible to enforce, because university officials neither can, nor want, to police staff computer use.

It is also too soon to say what the next move of the law's opponents will be. They could concede defeat and live with the ruling; ask for a rehearing before the three-judge panel; request the full Court of Appeals for the Fourth Circuit to review the decision, or seek appeal to the United States Supreme Court.

Bernard H. Levin, a psychology professor at Blue Ridge Community College in Weyer's Cave, Va., knows how he wants things to go. "My vote is take it to the full court", he said by phone late last week.

Levin joined a history professor, an English professor, and three other professors who, with the help of the ACLU, filed suit against the law, which they say violates their free speech rights under the First Amendment. Levin does not mince words about the statute, which he described as "nuttier than a fruitcake". The law makes it illegal for state employees to use state computer equipment to gain access to sexually explicit material, unless they receive prior written permission from an "agency head".

Levin is convinced that legislators failed to understand what the law would mean for professors who increasingly use the Internet for everything from research, to posting class assignments to communicating, via e-mail, with students and peers. Levin teaches some of his classes in a computer lab, where students often research topics during class discussions.

One of his fears, he says, is that a student surfing for class-related material will come across Web sites that run afoul of the law. Although the student would be free to look at the site, Levin, as a state employee, fears he could get in trouble for looking at the material himself. Levin, who coordinates the school's criminal justice program, said human sexuality is such an important part of both psychology and criminology that it is almost impossible to skirt sexually explicit material online while teaching and researching.

When asked about the law's impact on academic freedom, Hurd, the state counsel, referred to the state's brief defending the law.

Among other things, the document noted that during a brief period when the law was in effect in 1996, professors at several state universities had sought permission from school authorities to gain access to online material potentially banned by the law and received exemptions with little problem.

Furthermore, the brief asserts, the law merely puts university officials in an appropriate role, making them arbiters of what is germane to the educational and research mission of the institution.

The law "is fully consistent with constitutionally permissible relationships between the university and its professors", the court papers say. "This is so because the Act does not ban professors from using sexually explicit computerized materials in the conduct of their research, in the teaching of their classes or in carrying out their other professional work. It merely creates a requirement of germaneness..."

Still, a representative of a major university organization believes that if the case continues in court, appeals court judges could end up drawing a special distinction for professors employed by the government.

"I forsee a better defining line drawn between the needs of people in, say, a department of recreation or sanitation, and the needs of faculty members", said Sheldon E. Steinbach, general counsel to the American Council on Education, a Washington, D.C.-based group representing 1,800 colleges and universities.


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