Supreme Court Debate on the Subject of Wi-Fi in Schools
In August 2012 a petition filed on behalf of the National Parents' Association, the Forum for Cellular Sanity and other groups against the Minister of Education, the Deputy-Minister of Health, and the Minister of Environmental Protection, was presented to the Supreme Court. The petitioners demanded that the Ministry of Education not be allowed to install or operate wireless Internet connections in schools. Their chief claim was that the Ministry of Education's policy on this issue was unreasonable and should be cancelled, because exposure of students to non-ionizing radiation could lead to serious harm to their health. Moreover, they claimed that the Ministry of Education's policy as outlined in the 2013 CEO Circular did not reflect its 'true' policy and was not in accordance with the situation in practice.
The Ministry of Education counterclaimed that the petition should be dismissed – its policy recommended that a wired infrastructure should be given preference, in order to minimize exposure of the students to non-ionizing radiation, but that it was also necessary to install a wireless infrastructure when the pedagogical and safety considerations required this.
As a result of the petition, an inter-ministerial team was set up to deal with the problems arising out of the Ministry of Education's policy regarding the installation of communications equipment in schools. Subsequently, an updated CEO Circular (2013/10 paragraphs 3.6-11 - Hebrew) was circulated in August 2013 (the circular was published in July 2013 and took effect in August 2013). Here the Ministry of Education stipulated that where problems arose with the installation of a wired network alone, a wireless network could be installed, with certain restrictions, including:
- Age limitation - (the network could be installed for grade 1 upwards but not in kindergartens or pre-schools settings.
- Restriction on hours of use in grades 1-3
- Installation of a wired access point at the teacher's post, to be used whenever it was not essential to use the wireless network.
- Preference should be given to teaching by means of computer applications that do not require using a wireless network.
The CEO Circular also stipulated that:
- Administered wireless communication systems should be used, and the intensity of transmission be reduced automatically to the minimum required, in accordance with the power of the operative computers and the utilization of the service.
- Within the school grounds the wireless network should be disconnected in the end-user-devices, when not in use for teaching purposes.
- In every school possessing communications equipment and end-user-devices, the level of radiation from radio waves must be measured by a qualified person before and after installation of the equipment, to ensure that the radiation level is in accordance with the requirements of the Ministry of Environmental Protection. These measurements are to be performed when the equipment is operative throughout the school.
Following the publication of the updated CEO Circular, the Court requested further information on its implementation. The Supreme Court instructed the Ministry of Education, the Ministry of Health and the Ministry of Environmental Protection to consider the following issues:
- The number of schools in which a wired network had been installed, among all the schools in the country;
- The number of schools in which the wired network was actually operative;
- The number of children who are hypersensitive to non-ionizing radiation and what, if anything, has been done to identify these children.
According to the information provided to the Court in February 2015, referring to 1,986 out of 4,600 schools in Israel, only 6 schools had a wireless infrastructure, 1,470 had a combined wired and wireless infrastructure, and 510 had a wired infrastructure alone.
The Ministry of Education added that 1,047 safety and radiation measurements had beenperformed by qualified inspectors on behalf of the Ministry of Environmental Protection, and none of the measures exceeded the permitted recommended levels.
On the question of hypersensitivity of children to radiation, Prof Siegal Sadetzki, Director of the TNUDA Information Center and Head of the Cancer and Radiation Epidemiology Unit of the Gertner Research Institute, declared on behalf of the Ministry of Health that it was unable, at this stage and without further information, to provide data on children manifesting this disability in Israel. Nevertheless, the Ministry of Education committed itself to investigating every individual complaint and dealing with it in collaboration with the Ministry of Health and the Ministry of Environmental Protection.
In a deposition dated July 2014 the Ministry of Education informed the Court of its adoption of a draft plan to examine the implementation of the 2013 CEO Circular over a period of 4 years, for which many millions of shekels have been allocated. Within this framework, periodical examinations would be conducted within schools in which wireless networks were installed, to test whether the radiation level was in accordance with the permitted recommended levels, and to ensure that the other instructions contained in the circular were being fulfilled. The implementation of the plan is the responsibility of a professional team, which is also responsible for correcting any shortcomings they might uncover. The Ministry of Education specified that sanctions would be taken against any school that did not correct these shortcomings.
In February 2015, at the request of the Court, declarations were filed by Prof Siegal Sadetzki and Prof Stelian Gelberg, Director of the Noise and Radiation Prevention branch of the Ministry of Environmental Protection and Radiation Commissioner under the Non-ionizing radiation Law.
Prof Sadetzki clarified that the Ministry of Education's policy was formulated in accordance with up-to-date knowledge on the subject, including IARC's approach that classified non-ionizing radiation as 'possibly carcinogenic to humans'. She pointed out that this classification signified that as long as unequivocal proof regarding the presence or absence of a connection between exposure to non-ionizing radiation and developing cancer was not available, mobile phones and other radiation-emitting devices should be used in an educated manner. She was of the opinion that the issue of Wi-Fi should also be dealt with in accordance with the precautionary principle.
Prof Gelberg added that the use of a wireless infrastructure as outlined in the 2013 CEO Circular is safe, and does not involve radiation exposure above the threshold levels defined as harmless by the Ministry of Environmental Protection.
The Verdict
On 29.4.2015 the SC dismissed the petition against the Ministers of Education, Health and Environment Protection (Supreme Court verdict 6269/12 – National Parents' Association vs. the Minister of Education - Hebrew).
In the verdict (pronounced by Judge Fogelman, in agreement with Judge Silbertal and Supreme Court President Miriam Naor) the Court stipulated that it could find no reason to interfere with the Ministry of Education's policy regarding the use of wireless networks in schools, which is clearly a question of professional expertise, and it could not determine that the Ministry's policy as outlined in the CEO Circular of 2013 was not reasonable to an extent necessitating the Court's intervention.
The Court ruled that, in general, the decision by an authority should be considered reasonable if it reflects an appropriate balance between the various considerations relating to an issue. Such a balance may give rise to a wide range of possibilities for action, the choice of any of which is reasonable, even if the Court believes that under the specific circumstances another choice was preferable. In the case of the petition in question, the broad range of possibilities devolves from the fact that the decision rests on professional expertise based on clearly professional considerations.
The Court reiterated the principle of non-intervention in the professional discretion of an authority – "…this Court does not step into the shoes of the authority, especially since it is clearly dealing with professional issues, in which the authorities have the benefit of the relevant professional knowledge, expertise and experience appropriate to the decision".
With respect to the petition it stipulated – "The jurisdiction – as well as the responsibility – devolves on the qualified authorities, and in applying the general rules of judicial review we found no reason to interfere with the policy relating to the exposure of students to non-ionizing radiation resulting from the use of wireless infrastructure…"
In its verdict the Court discussed the statements filed by Professor Siegal Sadetzki, Professor Gelberg and Professor Grutto, and stipulated that the Ministry of Education's policy to allow the use of a wireless infrastructure under the restrictions detailed in the CEO Circular was clearly a case of professional expertise. This policy was based upon the professional evaluations of the experts and other relevant professionals. They formulated their recommendations regarding the degree of risk involved in the exposure of students to non-ionizing radiation in accordance with the required limitations and safety regulations.
It was pointed out that the petitioners had presented an factual-scientific alternative arriving to a different conclusion from that of the Ministry of Education, but this was insufficient to justify the intervention of the Court, or to provide sufficient reason for appointing an expert on behalf of the Court. This was true because the authority carried out a well thought-out and comprehensive process, in which all involved bodies had examined the appropriate balance between the relevant considerations – the possible hazard of exposure to non-ionizing radiation on the one hand, and the pedagogical needs of the ICT program on the other.
Moreover, according to the 2012 CEO Circular, a more stringent alternative was examined in practice, according to which a wireless infrastructure would be used only when a wired system could constitute a safety hazard, but it was found that in many schools there were practical problems with the implementation of this alternative. . The Ministry of Education therefore adopted the policy outlined in the 2013 CEO Circular.
The Court pointed out that it was not indifferent to ensuring the health and safety of the students in the educational system, but ultimately found that these had been adequately assessed by a multidisciplinary team of experts of the highest caliber in different fields.
The Court did not accept the petitioners' claim that the 2013 CEO Circular did not reflect "the real policy of the Ministry of Education". The Court pointed out that the Ministry of Education's policy evolved between 2012 and the present. This evolution expressed changes in knowledge and practical experience accumulated by the Ministry relevant to formulating its policy. At certain times there may have been differences between the official policy and the actual situation in some schools, but the Ministry had updated the information mentioned in the petition, and there was no reason to believe that this information does not reflect the real situation.
The Court emphasized that the end of the debate on the petition did not signify the end of procedures performed by the authorities on the subject. The Ministry of Education would continue to examine the implementation of the CEO Circular according to the systemic plan, which called for periodical investigations within schools to ensure that the radiation level is in accordance with the permitted recommended levels.
Request for renewed debate on the petition
On 18.8.2015, the Supreme Court rejected the petitioners' request for a re-hearing of the verdict before an extended bench of judges (Supreme Court additional discussion 3367/15 - Hebrew). The petitioners claimed that the subject of the petition justified further discussion on the issues raised, in view of their importance to the general public. They claimed that they were aware that this was not a 'classical' request for additional discussion, but felt it was justified in view of the importance of the subject.
The State counterclaimed that the issue had been given serious consideration during the original Supreme Court discussion, and no advantage could be gained from further debate.
The decision outlined by the Deputy to the Supreme Court President, Judge Rubinstein, stipulated that there was no reason to reopen the discussion of the verdict, mainly because this verdict did not contain any new theory.
In conclusion, the Court added that in addition to the follow-up mentioned in the CEO Circular, the Minister and Director of the Ministry of Education should consider the subject periodically.
References
- Supreme Court verdict 6269/12 – National Parents' Association vs the State (Hebrew)
http://elyon1.court.gov.il/files/12/690/062/m55/12062690.m55.pdf
- SC Additional discussion 3367/15 – National Parents' Association vs the Minister of Education (Hebrew)
http://elyon1.court.gov.il/files/15/670/033/t06/15033670.t06.pdf
16.3.16
