From: kadie@herodotus.cs.uiuc.edu (Carl M. Kadie)
Subject: Re: Banned Computer Material 1992
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Sat, 3 Oct 1992 16:07:05 GMT

bud@mtek.com (Bud Hovell),

In one article I thought you where comparing the Banned Computer
Material list to an academic blacklist, in a second you compared it to
Krystalnacht. But your third note suggested that you meant a Nazi
blacklist, not an academic blacklist. Can you clarify (and perhaps
detail) for me which comparison(s) you are making?

Also, are you against all critical lists? To take an extreme, are you
against Amnesty International's lists? If not, what makes one list
good and other bad?

If you are arguing that academic freedom is against all lists, and
therefore the List is hypocritical, can you detail why you think
academic freedom is against all list?>

You questioned the *legal* the authority of "academic freedom" itself.
I'll get to that in a second. But first let me confess, a premise of
the List was that academic freedom is *morally* good. To those who
don't accept that premise, I understand that the List would be seen as
irrelevant or, if you believe that that academic freedom is morally
bad, the List seen as bad (but as bad as Krystalnacht?). And, of
course, even if you believe that academic freedom is morally good, you
may think that my application of it to computer media is mistaken.

I, of course, can't prove that academic freedom is morally good. I can
report, however, that an important academic freedom statement, the
Joint Statement on Rights and Freedoms of Students, has been endorsed
by virtually every academic group in the U.S. starting with:

   American Association of University Professors
   U. S. National Student Association
   Association of American Colleges
   National Association of Student Personnel Administrators
   National Association of Woman Deans and Counselors

Now as to the legal authority of "academic freedom", I'm enclosing a
list of on-line references.  The most recent Supreme Court decision
that I can think of is _Rust v. Sullivan_. The Court wrote:

"Similarly, we have recognized that the university is a traditional
sphere of free expression so fundamental to the functioning of our
society that the Government's ability to control speech within that
sphere by means of conditions attached to the expenditure of
Government funds is restricted by the vagueness and overbreadth
doctrines of the First Amendment, Keyishian v. Board of Regents, 385
U. S. 589, 603, 605-606 (1967)."

Also, most school also guarantee academic freedom via legal contract.
For example, my student contract with the University of Illinois,
says, in part:

 "STATEMENT ON INDIVIDUAL RIGHTS
 I. Preamble
 A student at the University of Illinois at the Urbana-Champaign campus
 is a member of the University community of which all members have at
 least the rights and responsibilities common to all citizens, free from
 institutional censorship;"
   ...
"VI. Student Affairs 
 [...]
 B. Freedom of Inquiry and Expression
 1. Students and student organizations should be free to examine and to
 discuss all questions of interest to them, and to express opinions
 publicly and privately. [...]

- Carl

ANNOTATED REFERENCES

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

=================
law/constraints.constitutional
=================
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
=================
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/keyishian-v-board-of-regents
=================
In this Supreme Court case, the Court said that public universities
can not infringe on the Constitutionally protected rights of their
students and employees (specially with regard to loyalty oaths).

=================
law/uwm-post-v-u-of-wisconsin
=================
The full text of UWM POST v. U. of Wisconsin. This recent district
court ruling goes into detail about the difference between protected
offensive expression and illegal harassment. It even mentions email.

It concludes: "The founding fathers of this nation produced a
remarkable document in the Constitution but it was ratified only with
the promise of the Bill of Rights.  The First Amendment is central to
our concept of freedom.  The God-given "unalienable rights" that the
infant nation rallied to in the Declaration of Independence can be
preserved only if their application is rigorously analyzed.

The problems of bigotry and discrimination sought to be addressed here
are real and truly corrosive of the educational environment.  But
freedom of speech is almost absolute in our land and the only
restriction the fighting words doctrine can abide is that based on the
fear of violent reaction.  Content-based prohibitions such as that in
the UW Rule, however well intended, simply cannot survive the
screening which our Constitution demands."


=================
law/doe-v-u-of-michigan
=================
This is Doe v. University of Michigan. In this widely referenced
decision, the district judge down struck the University's rules
against discriminatory harassment because the rules were found to be too
broad and too vague.

=================
law/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/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/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/perry-v-perry
=================
Comments from the ACLU Handbook _The Rights of _Teachers_. It says
that campus mail systems (and other school facilities) can be limited
public forums. (Perry v. Perry was about an interschool mail system.
It was one of the cases that defined the Public Forum Doctrine.)

Also, a paraphrase from an ACLU handbook _The Rights of Teachers_. It
says that generally, speech, if otherwise shielded from punishment by
the First Amendment, does not lose that protection because its tone is
sharp.

Also, from p. 92, it says that there are legal limits to the oaths a
(public) school can ask its teachers to sign. [Some of these same
limits might apply to what a school can ask a user to sign as a
condition of getting (or keeping) a computer account.]

=================
law/rust-v-sullivan
=================
The decision and decent for the so-called abortion information gag
rule case. The decision explicitly mentions universities as a place
where free expression is so important that gag rules would not be
allowed.

=================
law/stanley-v-magrath
=================
Comments from _Public Schools Law: Teachers' and Students' Rights_ 2nd
Ed. by Martha M. McCarthy and Nelda H. Cambron-McCabe, published in
1987 by Allyn and Bacon, Inc. It says, in part, "[a]lthough school
boards are not obligated to support student papers, if a given
publication was originally created as a free speech forum, removal of
financial or other school board support can be construed as an
unlawful effort to stifle free expression." Also, "school
authorities cannot withdraw support from a student publication simply
because of displeasure with the content" and "the content of a
school-sponsored paper that is established as a medium for student
expression cannot be regulated more closely than a nonsponsored
paper". Also, it tells what to do about libel in student
publications.

=================
law/student-publications.misc
=================
Quotes from the book _Law of the Student Press_ by the Student Press
Law Center (1985,1988). They say that four-letter words are protected
speech, that public universities are not likely to be liable for
publications that they for which they do not control the contents, and
that the _Hazelwood_ decision does not apply to universities.

=================
law/tinker_v_des_moines.2
=================
A few excerpts from the majority decision in _Tinker v. Des Moines
Independent Community School District_ (1969). It concerned
non-disruptive political expression in schools. The Supreme Court held
that two students had the right to wear black armbands to school as a
protest against the Vietnam War.

=================
law/tinker_v_des_moines
=================
Excerpt from the ACLU Handbook _The Rights of Students_ (3rd edition)
by Janet R. Price, Alan H. Levine, and Eve Cary. It says that school
cannot prohibit students from handing literature such as underground
newspapers on school property.

=================
law/young-conservatives-v-sau
=================
A UPI story that tells how Stephen F. Austin University originally
banned a groups "sexist" flyers, but when challenged, the ban was
lifted and a cash settlement was given to the students whose
free-speech was violated by the ban.

=================
academic/student.code.uiuc
=================
Excerpts from the University of Illinois at Urbana-Champaign's Code on
Campus Affairs and Regulations Applying to All Students (Aug. 1985)

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

=================
faq/media.control
=================
q: Since freedom of the press belongs to those who own presses, a
public university can do anything it wants with the media that it
owns, right?

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

These document(s) are 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/law/constraints.constitutional
  pub/academic/law/constraints.contractual
  pub/academic/law/keyishian-v-board-of-regents
  pub/academic/law/uwm-post-v-u-of-wisconsin
  pub/academic/law/doe-v-u-of-michigan
  pub/academic/law/goss-v-lopez.fischer
  pub/academic/law/goss-v-lopez.mnookin
  pub/academic/law/mills-v-bd-of-ed
  pub/academic/law/perry-v-perry
  pub/academic/law/rust-v-sullivan
  pub/academic/law/stanley-v-magrath
  pub/academic/law/student-publications.misc
  pub/academic/law/tinker_v_des_moines.2
  pub/academic/law/tinker_v_des_moines
  pub/academic/law/young-conservatives-v-sau
  pub/academic/academic/student.code.uiuc
  pub/academic/academic/student.freedoms.aaup
  pub/academic/faq/media.control

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/law constraints.constitutional
send acad-freedom/law constraints.contractual
send acad-freedom/law keyishian-v-board-of-regents
send acad-freedom/law uwm-post-v-u-of-wisconsin
send acad-freedom/law doe-v-u-of-michigan
send acad-freedom/law goss-v-lopez.fischer
send acad-freedom/law goss-v-lopez.mnookin
send acad-freedom/law mills-v-bd-of-ed
send acad-freedom/law perry-v-perry
send acad-freedom/law rust-v-sullivan
send acad-freedom/law stanley-v-magrath
send acad-freedom/law student-publications.misc
send acad-freedom/law tinker_v_des_moines.2
send acad-freedom/law tinker_v_des_moines
send acad-freedom/law young-conservatives-v-sau
send acad-freedom/academic student.code.uiuc
send acad-freedom/academic student.freedoms.aaup
send acad-freedom/faq media.control
--
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign
Newsgroups: comp.admin.policy,alt.comp.acad-freedom.talk