Originator: kadie@eff.org
Organization: The Electronic Frontier Foundation
Newsgroups: bit.listserv.ethics-l
Apparently-To: eff-mail-ethics-l@eff.org
Date:         Thu, 7 Jan 1993 17:37:48 GMT
Comments:     Warning -- original Sender: tag was usenet@EFF.ORG
From:         "Carl M. Kadie" <kadie@EFF.ORG>
Subject:      Re: Due Process Examples

rlee@UAFHP.UARK.EDU (Richard Lee) writes:

[...]
>        One concern, however, of course, is that if someone is suspected
>of sabotaging files in other people's accounts, and if due process
>involves presumption of innocence until a hearing, then a lot of damage
>could be done between the time the person is accused and a hearing is
>held. But since use of computers (except one's own) and networks is
>presumably a priviledge, not a right, an argument could be made that there
>could be immediate suspension (locking, that is, not revocation) of a
>person's computer accounts while the matter is going through the campus
>judicial process.

Summary suspensions should be the exception, not the rule. Just as
students should generally not be expelled from class without due
process they shouldn't be expelled from the computer without due
process. Declaring computer use a "privilege" does not remove legal
(and moral) due process requirements.

This excerpt from the "Joint Statement on Rights and Freedoms of
Students" explains this principle and its exception.

"C. Status of Student Pending Final Action

  Pending action on the charges, the status of a student
should not be altered, or his right to be present on the campus and to
attend classes suspended, except for reasons relating to his physical
or emotional safety and well being, or for reasons relating to the
safety and well-being of students, faculty, or university property."

At both state and private universities, due process is likely a
legally-binding contractual requirement. At state schools in the U.S.
"some modicum" of due process is required by law.

As a practical matter, students who are put on notice that they are
suspected of an offense and that due process is proceeding are likely
to stay out of trouble. On the other hand, students who feel that they
have been unfaily expelled from the computer make seek improper
access. In such cases, the summary suspension exasperates rather than
mitigates harm.

- Carl

ANNOTATED REFERENCES

(All these documents are available on-line. Access information follows.)

=================
academic/student.freedoms.aaup
=================
* Student Freedoms (AAUP)

Joint Statement on Rights and Freedoms of Students -- This is the main
U.S. statement on student academic freedom.

=================
law/goss-v-lopez.mnookin
=================
* Due Process -- When Required -- Goss v. Lopez -- Mnookin

Comments from _In the Interest of Children_, R. Mnookin (Ed.),
Franklin E.  Zimring and Rayman L.  Solomon (Contrib. Authors). It
reports that the Supreme Court says that some modicum of due process
is necessary unless the matter is trivial or there is an emergency.

=================
law/goss-v-lopez.fischer
=================
* Due Process -- When Required -- Goss v. Lopez -- Fischer

Comments from _Teacher's and the Law_, 3rd edition, by Louis Fischer,
et al. Published in 1991 by Longman. It reports that the Supreme Court
says that some modicum of due process is necessary unless the matter
is trivial or there is an emergency.

=================
law/constraints.constitutional
=================
* Constitution -- Public University -- Constraints

Comments from _A Practical Guide to Legal Issues Affecting College
Teachers_ by Partrica A. Hollander, D. Parker Young, and Donald D.
Gehring.  (College Administration Publication, 1985).  Discusses the
constitutional constraints on public universities including the
requires for freedom of expression, freedom against unreasonable
searches and seizures, due process, specific rules.

=================
law/constraints.contractual
=================
* Universities -- Contractual Constraints

Comments from _A Practical Guide to Legal Issues Affecting College
Teachers_. Explains that University Code is part of the contract
between the student and school. The University can be liable for a
breach of the contract (i.e. for not following its own rules).

=================
law/mt-healthy-v-doyle
=================
* Due Process -- Finding of Fact -- Mt Healthy v. Doyle

_Due Process for School Officials: A Guide for the Conduct of
Administrative Proceedings_ by Edgar H. Bittle (1986) says that a
formal hearing should make a detailed "findings of fact" list.

=================
law/mills-v-bd-of-ed
=================
* Due Process -- Notice of Charges -- Mills v. Bd of Ed

Summary from the ACLU's Handbook _The Right of Students_ 3rd Edition
by Janet.  R. Price, Alan H. Levine, and Eve Cary. p. 61. It says
before you can be severely punished, you have a due process right to
know the specific acts you are charged with committing and the
specific rules that those acts violate.

=================
law/due-process.buchanan
=================
* Due Process -- Notice of Charges -- Buchanan

Quotes about the due process requirements of "notice of charges" and
"find of facts" at a formal administrative hearing. The quotes are
from:

_Procedural due process guidelines for disciplinary hearings resulting
in suspension or expulsion in higher education_ by Ernest T. Buchanan
III. Published by Education/Law Research Associates, 1972

=================
law/due-process.french
=================
* Due Process -- Notice of Charges -- French

Quotes about the due process requirements of "notice of charges" and
"find of facts" at a formal administrative hearing. The quotes are
from:

_The Redefinition of the Exclusionary Rule as to Student Procedural
Due Process in High Education_. A monograph from the Office of the
General Counsel [of Southern Illinois University] by Dr. Larry L.
French, General Counsel, 1977.

=================
law/due-process.weckstein
=================
* Due Process -- Notice of Charges -- Weckstein

Quotes about the due process requirements of "notice of charges" and
"find of facts" at a formal administrative hearing. The quotes are
from:

_School Discipline and Student Rights: an advocate's manual_ by
Paul Weckstein, revised edition, 1982, Center for Law and
Education.

=================
=================

If you have gopher, you can browse the CAF archive with the command
   gopher gopher.eff.org

These document(s) are also available by anonymous ftp (the preferred
method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.88.144.4), and get file(s):

  pub/academic/academic/student.freedoms.aaup
  pub/academic/law/goss-v-lopez.mnookin
  pub/academic/law/goss-v-lopez.fischer
  pub/academic/law/constraints.constitutional
  pub/academic/law/constraints.contractual
  pub/academic/law/mt-healthy-v-doyle
  pub/academic/law/mills-v-bd-of-ed
  pub/academic/law/due-process.buchanan
  pub/academic/law/due-process.french
  pub/academic/law/due-process.weckstein

To get the file(s) by email, send email to archive-server@eff.org.
Include the line(s) (be sure to include the space before the file
name):

send acad-freedom/academic student.freedoms.aaup
send acad-freedom/law goss-v-lopez.mnookin
send acad-freedom/law goss-v-lopez.fischer
send acad-freedom/law constraints.constitutional
send acad-freedom/law constraints.contractual
send acad-freedom/law mt-healthy-v-doyle
send acad-freedom/law mills-v-bd-of-ed
send acad-freedom/law due-process.buchanan
send acad-freedom/law due-process.french
send acad-freedom/law due-process.weckstein
--
Carl Kadie -- I do not represent EFF; this is just me.
 =kadie@eff.org, kadie@cs.uiuc.edu =
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU