THE STATE EDUCATION DEPARTMENT/THE UNIVERSITY OF THE STATE OF NEW YORK/ ALBANY, NY 12234 Counsel and Deputy Commissioner for Legal Affairs Tel. 518-474-6400 Fax 518-474-1940

May 10, 2000

 

A. Introduction.

As education moves increasingly from the realm of books and papers to instructional technology, questions have arisen about the proper use of this new technology. Two critical issues that have emerged are commercialism associated with the use of computers and the internet in the classroom and equal access to such technology for all students, regardless of parents' ability or willingness to pay.

This memorandum provides a general legal framework within which the use of technology should be evaluated. It is not intended to be an exhaustive legal analysis of this complex subject. Rather, as with any important policy decision, school administrators and boards of education should carefully review these issues with the guidance of your legal counsel before adopting or implementing technology plans.

B. Commercialism.

Regents Rules. Part 23 of the Regents Rules prohibits commercialism in public schools. Specifically, §23.2 provides that boards of education cannot enter into contracts, agreements or arrangements in exchange for a promise to permit commercial promotional activity on school premises. "Commercial promotional activity" is defined as:

any activity, designed to induce the purchase of a particular product or service by students, or to extol the benefits of such product or service to students for the purpose of making its purchase more attractive, that is conveyed to students electronically through such media as, but not limited to, television and radio.

§23.1(b). While the rule does not specifically identify computers as a kind of media through which promotional activity is prohibited, the Department interprets the rule to include computers. This is because the rule does not purport to provide an exhaustive list of prohibited marketing tools, stating instead that it applies, but is not limited to, television and radio. The rule does allow commercial sponsorship, which is distinguished from commercial promotional activity as "the sponsorship or the underwriting of an activity on school premises which does not involve the commercial promotion of a particular product or service."

State Statute. School districts considering entering into agreements to obtain technology in exchange for marketing rights or advertising on computer screens or school premises should carefully examine their statutory authority to do so. Education Law §§1709 and 1804 set forth the powers of boards of education. As creatures of statute, school boards have only those powers expressly conveyed upon them pursuant to law (Bassett v. Fish, 75 NY 303 [1878]). These powers include, among other things, the authority to enter into employment contracts, to accept gifts on behalf of the district, and to raise funds through tax levies. In Opinion 79-475, the Comptroller of the State of New York held that a school district had no authority to raise revenues by selling advertising space in the school newsletter. He further noted that "advertising is a private enterprise and is not in any manner related to the public functions of a school district." The Attorney General has also opined that advertising is a private business in which a government unit is not authorized to engage, absent specific statutory authority. 1973 Opns. Atty. Gen. 51.

New York State Constitution. The New York State Constitution prohibits a gift or loan of school property for private gain. The Constitution states that "[n]o county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association..." N.Y. State Const. Art. VIII, §1. This provision has been interpreted to prohibit the use of public property for private advertising. (Village in violation of Art. VIII, §1 of the State Constitution where it accepted as a gift and then erected on village property and buildings laminated signs containing maps of the village together with private advertising.) Opns. St. Compt. 1980, No. 80-735.

In analyzing Art. VIII, §1, the courts have held that private persons may "use" public property where the use is for a public purpose and the private benefit is only incidental. See Murphy v. Erie County, 28 NY2d 80 (1971). The courts' analysis of "public purpose/incidental private benefit" has been adopted by the Commissioner in cases where the proposed use of school facilities was for a school purpose and the benefit to the private undertaking was only incidental. See Matter of Puls, 18 Ed Dept Rep 530 (1979); Matter of Jones, 16 id. 156 (1976); Matter of Hoyt, 17 id. 174 (1977).

A program that has a combined school and private commercial purpose may pass constitutional muster, provided that the private commercial benefit is only incidental to the greater school purpose. Whether there is a valid "school purpose" and whether the private commercial purpose is "incidental" to the school purpose depends upon the particular facts presented by the arrangement under consideration.

C. Equal Access.

A plan to provide computer technology may also implicate issues of equal access. Every child is entitled under the State Constitution to a free public education. If computers are an integral part of the district's instructional program, they should be made available equally, to all students in the district's instructional program, free of charge. See Matter of Gordon, 14 Ed Dept Rep 358 (1975).

D. Conclusion.

Rapidly changing technology will ensure a constant flow of new questions and challenges. The Department is engaging these emerging issues so that we may provide school districts with additional legal and programmatic guidance in the future. Questions on the analysis provided herein should be directed to your school attorney.