Editor’s note: This essay is an entry in Fordham’s 2026 Wonkathon, which asked contributors to answer this question: “What rules should govern the uses of digital technology in schools—and who should set them?” Learn more.
Code can be just as hazardous as concrete or steel. But just as we don’t ban buildings, we shouldn’t ban software. Here is an elegant, time-tested way to let digital technology continue in education while making it safer, more ethical, and more responsible: apply state premises liability principles to ed tech used in schools.
Premises liability begins from a basic principle: People who control a physical environment owe their visitors a duty to exercise reasonable care against foreseeable hazards. For example, a school must repair a broken stairway or warn students of the danger. Students are invited (compelled?) as visitors into a learning environment that the school selects, manages, and requires them to use. That environment now includes digital spaces as well as classrooms, hallways, and playgrounds. Just as schools are responsible for broken staircases, state law should recognize that schools’ protective duties extend to the technology they deploy and that ed tech companies may share responsibility when their products create or conceal foreseeable risks. States should make clear that ordinary premises liability principles apply to the digital school environment.[1]
Digital products have incorporated variable-reward systems, infinite scroll, predictive recommendation loops, and features that may expose children to predation. When those design choices foreseeably undermine student well-being or impede learning (i.e., academic and cognitive development), treating them as hazards within the school environment offers a practical way to establish a baseline duty of care to students.
Just as a school must take reasonable precautions against dangerous conditions on campus, technology companies should be expected to build safety into products designed for school use. Recent Meta lawsuit settlements, though not based on premises liability law, reinforce the broader premise that product design can create foreseeable risks. But those cases do not squarely address educational harm. State tort law generally defines a hazard by its capacity to cause foreseeable harm. In schools, educational harm could entail cognitive fragmentation or distraction, for example, which measurably interfere with learning and development. Policy should make clear that digital hazards that impair learning can trigger protective duties, too.
A digital premises liability framework should entail shared responsibility, allocating duties between ed tech companies and schools according to their control over the relevant risk. Once a company has adequate notice that its product architecture is causing foreseeable educational harm, it should be required to correct the problem. A company that responds promptly and effectively should receive some immunization from liability.
Schools, as managers of the learning environment, should bear a corresponding duty. Their responsibility should arise when they know—or reasonably should know—that inadequate firewalls, vendor screening, or data-security protocols are exposing students to harm. Schools that identify and reasonably address those risks should likewise receive protection from liability.
A digital premises liability framework offers several advantages. First, it focuses on product design and the reasonable management of the school environment rather than speech, reducing potential conflict with the First Amendment or Section 230 of the federal Communications Decency Act, which shields platforms from certain claims based on third-party content. The premises liability issue focuses not on what people say inside the proverbial room, but rather whether the digital doors, windows, and locks were designed and managed responsibly.
Second, it preserves room for innovation. Policymakers cannot always predict the full costs and benefits of a new school-based technology before it is deployed. This framework would allow experimentation while requiring action when foreseeable harms emerge.
Third, it supports continuous improvement. Legislatures would not need to return again and again to micromanage each new product or feature. Technology changes quickly; a durable duty to identify and mitigate foreseeable harm can evolve with it.
Put otherwise, it is better than some competing policy approaches because it avoids blunt bans and rigid design mandates, adapts as technology evolves, and ties accountability to actual control over foreseeable harm.
Finally, the approach does not treat technology as categorically different from other features of the school environment. It applies the same basic principle to digital and physical hazards: adults who create or manage a foreseeable danger to children have a duty to address it. That seems fair to me.
What would this proposal not solve? It would establish a floor, not a summit. Preventing harm is not the same as creating the conditions for educational flourishing. Safety alone does not prepare students to navigate digital environments competently or ensure that those environments are high quality. (That is the business of my organization, Committee for Children, which focuses on developing students’ human skills.) Readiness and quality are additional policy concerns—beyond the scope of this Wonkathon entry—that require us to identify, fund, expand, and replicate technologies that prepare students for an increasingly digital future and genuinely improve learning. The immediate task of my proposal is simpler: take bad bets off the table while preserving space for good ones.
The proposal probably would also not resolve broader concerns about screen time or in-school phone use as readily because screens and phones do not, by themselves, necessarily create an unreasonable risk of harm.
Schools have accepted known digital hazards—and the resulting cognitive and mental-health costs to students—as collateral damage. Having states apply premises liability principles to ed tech would begin to correct that imbalance. It would recognize students as visitors entitled to reasonable protection, require technology companies to build safer products without shutting down innovation, give schools clearer protective duties, and nudge the classroom toward its central purpose: learning.
[1] My proposal does not conflict with Bill Gates’s recent rejection, heard on The Ezra Klein Show, of tort liability for managing technology risk. Premises liability addresses predictable, localized physical injuries where victims can be compensated after an accident occurs. The mechanism creates a deterrence effect on the market. Gates is arguing that tort liability won’t work against immediate, catastrophic, uncorrectable risk—that it is insufficient as a deterrence mechanism and requires more regulatory oversight than tort law can offer. I believe our points can be complementary.
