Newsgroups: alt.comp.acad-freedom.talk From: greeny@top.cis.syr.edu (J. S. Greenfield) Subject: Re: How to annoy Rush! Message-ID: <1993Apr1.014728.10395@newstand.syr.edu> Date: Thu, 1 Apr 93 01:47:27 EST In article resnick@cogsci.uiuc.edu (Pete Resnick) writes: > >>I believe that some "privileges" are subject to due process >>requirements because I believe that is what the Supreme Court said in >>_Goss v. Lopez_ (see refs). > >At least according to the references you cite below which I downloaded, >no such thing is said. Goss v. Lopez said that the state could not >suspend children from school without due process *specifically because >education was guaranteed by state law*. Is there something in the >original text of the decision that sheds more light on this? As far as >I can tell, privileges are not subject to due process requirements >according to this case. Well, I have now had a chance to read the files in the archive, and to look up the case. I think you have misinterpreted what you read (though, there isn't a whole lot there). The majority opinion states: "At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as state statutes or rules entitling the citizen to certain benefits." and "Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education." In other words, a state law *happened* to be what established the property interest in this case. It is clear from the holding, however, that many other things (for example, a state university's rules and regulations) could also establish property interests. The majority opinion continues [I'm going to use "$" as the section symbol]: "Ohio Rev. Code Ann. $$ 3313.48 and 3313.64 (1972 and Supp. 1973) direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory-attendance law requires attendance for a school year of not less than 32 weeks. It is true that $ 3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on the grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred." In other words, when a property interest is created, the state can *not* also create a loophole by which it can arbitrarily revoke that interest. (The court doesn't speak in terms of "rights" versus "privileges" here. They speak only of property "interests." It is clear to me however, that the meaning of this is to say, in essence, that the state can't simply declare a property interest to be a "privilege," and then use that declaration to revoke the "privilege" without due process.) My conclusion is that Goss v. Lopez is definitely applicable to computer access issues (at a public institution). Clearly, making computer accounts available to students (via university policies, rules, etc.) establishes a property interest on the part of the student. According to Goss, even if the university had a regulation stating that sysadmins have absolute power to immediately revoke access in response to (alleged) misconduct, that regulation would be invalid, and a student would still have due process rights. As for the question as to what constitutes a "modicum" of due process, I can't say for sure. The court did state, however (and recall that this is all in reference to short-term suspensions): "Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence that authorities have and an opportunity tp present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school." For the case at hand (which as I stated in an earlier post, I presume does not qualify as either an emergency or a trivial sanction--I'm also assuming that we're talking about a public school, though I don't recall), I take this to mean that the school cannot suspend the accused student's access without *first* having a hearing, if the student denies the allegations against him. (If the student does not deny the allegations, then presumably, no hearing is required.) -- J. S. Greenfield greeny@top.cis.syr.edu (I like to put 'greeny' here, but my d*mn system wants a *real* name!) "What's the difference between an orange?" ------------------------------------------- Newsgroups: alt.comp.acad-freedom.talk From: greeny@top.cis.syr.edu (J. S. Greenfield) Subject: Re: How to annoy Rush! Message-ID: <1993Apr1.142431.452@newstand.syr.edu> Date: Thu, 1 Apr 93 14:24:31 EST In article lemson@uiuc.edu writes: > >>It is a matter under debate whether the suspension of an account counts >>as student discipline, and it is CERTAINLY suspect to mention it >>in the same breath as suspension from school. > >No doubt. Suspending a student's free e-mail account is FAR from >suspending them from classes. I doubt anyone would agree with that, >and yet Carl continues to base his entire argument on the fact that >a student should not be suspended from classes without such and >such. >I repeat.. if it was a class account, required to complete homework >in a certain class, I would object to such suspension. Assuming it >has the relative status of a uxa/ux4 account, I would say that such >suspension probably is OK. (But, of course, who among us knows 100% >of the details...) > >(my opinions, not CCSO's...) Your opinions are apparently based upon some false assumptions. First of all, for many of us, there is no clear distinction between a "class account" and other accounts. I have never used a "class account" to do any work. (Years ago, I once had a "class account" automatically assigned to me, though I didn't need it, and didn't use it. Otherwise, I have not had "class accounts.") I use my "regular" accounts to do all of my work, as well as handle email, read news, etc. Cutting off my access to a "regular" account would be as serious an infringement to me as suspension from a class would be to others. (Actually, I don't take classes anymore.) More importantly, you have a basic misunderstanding of the law regarding such matters. You seem to think that, if the interest infringed is relatively "small," then not as much protection is due, as compared to when the interest infringed is relative "large." (i.e., you think that suspendion of non-class accounts is not comparable to suspension from classes.) In fact, the only way that this could be the case would be if the interest infringed were *trivial* in the first place. In Goss v. Lopez, the school tried to use a similar argument. The court's response was: "The Court's view has been that as long as a property deprivation is not de minimus, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause." I do not believe that, in general, access to computing facilities is a trivial interest. As such, your argument that suspension of a computer account is less severe than suspension from a class is totally irrelevant. Clearly, there is justification for Carl's analogy to suspension from a class. -- J. S. Greenfield greeny@top.cis.syr.edu (I like to put 'greeny' here, but my d*mn system wants a *real* name!) "What's the difference between an orange?"