The "digital divide" is the new measure separating society into "haves" and "have-nots." For the purposes of this paper the "digital divide" is the separation of members of United States society into those with and those without access to computers and the Internet.1 In addition to opportunity for access, lack of opportunity to learn the skills to make use of this portal to the world is the reality for large numbers the poor and the educationally underserved.2 The groups most affected by the digital divide are similar to groups who have fought for civil rights in other areas of our society: racial minorities, the disabled, those for whom English is a second language, the homeless, and those with low incomes.
People with a disability are half as likely to have access to the Internet as those without a disability: 21.6% compared to 42.1 %.3 Only 23.6% of Hispanic households have access to the Internet compared with 41.5% of households nationally.4 Only 23.5% of African American households have access to the Internet.5 Also increasingly separated from the larger society, and even from activity in their own communities, by the digital divide are those over the age of 50.6 As access to cyberspace is surveyed each year the gaps between groups are growing larger, though the number of individuals gaining access to cyberspace increases each year across all groups.7
The thesis of this Article is that existing civil rights laws can be applied to access to cyberspace. Examples are the Americans with Disabilities Act (ADA),8 the Fourteenth Amendment,9 and the 1964 Civil Rights Act,10 which may be used as vehicles for remedying the discrimination caused by the digital divide.
Our argument is that justice for children requires that schools and educators take a positive stance in applying the principles of federal and state constitutional provisions, statutes, and cases to cyberspace access. There are social and economic reasons as well as reasons of justice for the schools to do so.11
The developing law in cyberspace is analyzed vis-A-vis its effect on access to an adequate education for all children. The legal, policy, and leadership practice implications of the developing law of cyberspace are addressed from the position that justice can only be served when access to cyberspace is available to all our children.12
II. DEMOGRAPHICS OF THE DIGITAL DIVIDE
A. African-Americans & Hispanics
In October 2000, the fourth report in the Department of Commerce Department's FALLING THROUGH THE NET series was published.13 The report shows gains for all groups along a variety of dimensions. Yet, despite the gains, gaps still exist between the national averages and African-Americans and Hispanics. Some of the remaining gaps are statistically unchanged while others have increased since the last report in 1998.14 For example, a gap remains in Internet penetration for African-Americans and Hispanics when compared to the national average (23.5% and 23.6% compared to 41.5%).15 For 2000, the gap was 18 percentage points, an increase from 1998. Among African-Americans the gap is three percentage points wider than the 1998 gap of 15 percentage points.16 And for Hispanics the gap is four percentage points wider.17 AfricanAmericans and Hispanics have the lowest Internet penetration rates among all race and ethnic groups.18
With regard to computer ownership, African-American households had a 32.6% penetration rate, Hispanic households had a penetration rate of 33.7%, while nationally the penetration rate was 51.0%.19 The 2000 gap for African American and Hispanic households was 18 and 17 percentage points, respectively. These gaps in computer ownership are statistically no different than their 1998 gap.20
Support for the saliency of race and ethnicity exists. The 2000 report found that differences in income and education do not fully account for race and ethnicity differences in the digital divide. …