TLDR Version (Update below): State Senator Jennifer Boysko has introduced a bill (SB 1225) in the 2021 session of the Virginia General Assembly that will establish new rules for local schools on partnering with an internet service provider to connect households with disadvantaged students. These rules would exclude public broadband providers by virtue of only mentioning “private” broadband providers. During the pandemic local school districts have partnered with public providers to get kids connected. For instance, Arlington Public Schools partnered with Arlington County’s public dark fiber network to extend wifi to several buildings with a high-concentration of low-income families. Boysko’s bill, if passed in current form, would at best complicate future such public-public partnerships and at worst eliminate them entirely. Update below.
The Pandemic and Public Education
Anyone scrolling through the headlines in VPAP’s VA News morning roundup since March would have noticed a goodly number of articles about schools throughout Virginia struggling to connect all of their students during the transition to online learning.
While certainly some of the most dire situations were in rural parts of Virginia where broadband internet service is completely absent, the highly wired urban parts had their own problems with home internet access for their students. A Washington Post article provided the following illustrative example back in May:
Yenifer Alvarado Portillo liked doing homework. School, the 5-year-old said, made her feel good. But ever since Arlington Public Schools shuttered, kindergarten has become a cause for tears. While other kids find their assignments online, Yenifer’s teacher has to relay them by phone. Even then, she can’t complete most of them because her family’s Northern Virginia home lacks Internet. She and her mother, Maria Silvia Portillo, huddle by the hotspot on Maria’s Galaxy cellphone. But the signal is just too weak.
The Portillos are hardly alone. A recent study commissioned by Arlington’s Department of Technology Services conservatively estimated that at least 16% of Arlington households do not have access to a fixed home broadband Internet connection. Moreover, the report found that those who are typically digitally underserved include older adults or adults with disabilities who typically have fixed incomes; lower-income households; and members of recent immigrant groups – particularly Hispanics, who are also more likely to have multiple school-age children. At the state level, a recent study by the State Council of Higher Education for Virginia found that nearly 40% of all students without broadband live in or around Virginia’s cities.
This, of course, is the least talked about aspect of the digital divide: cost. While rural areas suffer from the telecoms’ neglect (despite years of public subsidies), the suburban and urban areas suffer from the telecoms’ monopoly pricing power. Now we are all paying the price for failing to treat broadband as a utility and essential infrastructure.
It is important to note, however, that, while the pandemic has turned the digital divide into a full blown catastrophe, the lack of home internet for so many was already a national crisis in need of urgent rectification. Studies on the “homework gap” have shown that students with internet at home consistently score higher in reading, math and science. According to a study conducted by the Quello Center at Michigan State University and Merit Network, which looked at the homework gap in 15 rural school districts in Michigan, students without home Internet access also had lower grades and test scores, demonstrated less digital skills competency, and were less likely to plan to attend post-secondary schooling, even after accounting for socioeconomic differences. And, this being the U.S., the digital divide and homework gap disproportionately affect children and communities of color.
Given the need to transition all schooling to online platforms, local schools and governments scrambled for solutions to get all of their students connected. These solutions ranged from public hotspots to take-home mobile Wi-Fi devices (“MiFis”) to public subsidies for private low-income service packages like Comcast’s Internet Essentials.
These solutions, of course, all have their flaws. Public hotspots at schools and libraries presuppose things like means of private transport and/or favorable weather. MiFis tend to have insufficient capacity for multiple hours of streaming. Low-income internet packages from the big telecoms tend to have all manner of limitations on who can apply, in addition to providing inadequate customer support, especially for families who suffer from language and/or digital literacy barriers. And even if a low-income family could overcome those barriers, the slow speeds (e.g. 15 mbps down and 2 mbps up) are likely inadequate in situations where multiple students were trying to stream simultaneously.
Here in Arlington, the County government and APS pursued all of these avenues. What is relevant for this post, however, is that in May the County Board inked a deal with Comcast to use $500,000 of its CARES Act money to subsidize the $10/month for Internet Essentials for low-income families. As part of this deal, Comcast bumped up the speed to 25/3 mbps and relaxed some other fees and restrictions that usually accompany the service. It is not clear what the take rate on this program was or how many families were unable to take advantage of it because Comcast did not service their territory or building, but, given the urgency of the problem, it was still worth doing.
In addition to the County’s deal with Comcast, Arlington Public Schools signed an MOU with the County government to use the public dark fiber network ConnectArlington to extend wifi service to several buildings with low-income families at a cost of roughly $1.2 million. The students in those buildings will be able to access the network with their APS credentials and are expected to enjoy speeds of around 45/15 mbps, which is a considerable improvement over the speeds provided by Comcast Internet Essentials. Arlington County could likely do more using ConnectArlington, but it is currently hampered by state laws that place onerous restrictions on public networks (incidentally, the network would face no restrictions if County formed a broadband authority).
All of these measures were just stopgap solutions to a problem that has been in the making for decades, but it sure was nice to have as many tools at hand as possible, right? You would think that, but sadly it appears some of our legislators think otherwise.
Despite the clear crisis we have seen with regard to internet access (and options) during the pandemic, state legislators submitted shockingly few bills on this topic this session (we count a total of five bills related directly or indirectly to broadband, not including budget amendments). Worst of all, one of those bills, SB1225, is set to decrease schools’ options for ensuring home internet for their students. This bill was submitted by Democratic Senator Jennifer Boysko, who is happens to be the chair of the state’s Broadband Advisory Council, and is patroned by a number of other prominent/senior members of the Senate.
On the face of it, SB1225 is aimed at making it easier for schools to partner with internet service providers for the purpose of getting families with disadvantaged students connected. The summary of the bill reads as follows:
Broadband services; education. Authorizes school boards to appropriate funds for the purposes of promoting, facilitating, and encouraging the expansion and operation of broadband services for educational purposes. The bill authorizes school boards to partner with private broadband service providers to promote, implement, and subsidize broadband for educational purposes to the households of students who would qualify for (i) a child nutrition program or (ii) any other program recognized or adopted by the local school board as a measuring standard to identify at-risk students.
You will notice that we bolded a particular word above: “private”. The inclusion of that word and the exclusion of the word “public” could very well complicate or even eliminate public schools’ ability to partner with public internet service providers (as we saw in the Arlington example above). Alarmed by that prospect, we took to Twitter to voice our opposition directly to Senator Boysko.
Senator Boysko was quick to respond, replying both by Tweet and email. Her response boiled down to claiming that we misunderstood the bill and that it is irrelevant to the issue of public providers because they are already covered under a different part of the VA Code.
The importance of bill language in a dillon’s rule state
The problem with Senator Boysko’s argument here is at least twofold.
The first is that the VA Code also already allows private internet providers to enter into MOUs with schools (under the Virginia Public Procurement Act), so it begs the question what the purpose of this bill is (and more importantly, who asked for it…). You’ll remember from above that Comcast had no problem signing an MOU with Arlington County for this purpose.
The second is that Virginia is a Dillon’s Rule state, so authorizing language is vitally important. The portion of the law that covers public provider MOUs is very broad. This proposed legislation by contrast is very specific, which arguably sets up a new set of rules that specifies who can enter into MOUs with schools for this purpose. If this bill passes and the language specifies only private providers, that will almost certainly be used by the corporate telecoms to argue that public providers do not have the right to do this specific thing in MOUs (or at least threaten lawsuits against school districts), which, given the importance of this issue, should be avoided at all costs. So let’s adhere to the precautionary principle.
And even this is not the only potential problem with this legislation. As one public attorney mentioned to us in a personal communication:
The 600 lb. gorilla issue here is the First Amendment/Free Speech Clause of the Virginia Constitution, both of which trump this statute. If a school district allows one private speaker to send home flyers, then it has created a “limited public forum,” in which “the government may restrict access to ‘certain groups’ or to ‘discussion of certain topics,’ subject to two limitations: the government restrictions must be both reasonable and viewpoint neutral.” Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Sch., 457 F.3d 376, 383 (4th Cir. 2006). There is no question that the schools have to be viewpoint neutral: In other words, any internet provider in the geographic area the schools serve would be in a position to say that they should have equal access to the schools’ intramural mail system for the purposes of advertising availability in the area. You’d have a tough time arguing it isn’t covered under the First Amendment.
Ultimately, we would feel better if this law was at least amended to remove the word “private”, although given the fact that nothing is currently stopping private or public providers from entering into agreements with local governments and schools on providing internet services to unconnected students, it is probably best that this bill just be killed or withdrawn.
Thank you to everyone who sent emails. Those letters to the subcommittee members definitely helped as they were referenced by Sen. Dunnavant during the hearing and led her to suggest potentially amending the bill’s language. Unfortunately, the bill passed out of the subcommittee unaltered and was then rubber stamped by the full Senate Education and Health Committee without letting us speak on it.
Here is a video of Thursday’s hearing, which began with a presentation by Senator Boysko herself:
A few comments on Sen. Boysko’s presentation.
Sen. Boysko claims that we need this legislation to clarify that schools can partner with private broadband providers to help connect disadvantaged students at home, yet she cites several examples of schools partnering with private broadband providers without any problem (e.g. Cox with schools in Roanoke). She claims that the problem is that some schools were reluctant to partner with private broadband providers because they were not sure whether the law allows it. If that is the case, it makes sense to make sure the language is written in a way to make sure all providers are covered and enabled. If the language is changed to include all broadband providers, nothing about the intent of this bill changes.
Here is what the language should have looked like:
SB 1225 Broadband services; education.
B. Any school board may:
1. Promote and publicize the availability of broadband services, including private for educational purposes to parents and students, including the availability of any affordability programs or sponsored programs;
2. Provide promotional or informational materials for broadband services, including private to parents, students, and potential sponsors including brochures, flyers, and cable, internet, broadband, or other public service announcements, in any media, regarding locally available broadband service, including private offerings, including the availability of any affordability programs or sponsored programs, to encourage student use of broadband services for educational purposes;
3. Accept compensation, or in-kind donations of materials and services, from any broadband service, including private to reimburse the school board or other public body for its actual costs incurred in providing the materials described in subsection B 2;
4. Enter into agreements with local businesses, charitable groups, or broadband service providers, including private to promote sponsored programs to provide reduced cost or free broadband services for educational purposes to households of qualifying students. Under such agreements, the school board may award grants or subsidies to broadband service providers, including private to reduce or eliminate the cost of sponsored program broadband services provided to qualifying student households;