From: "Robert A. Hayden" <hayden@krypton.mankato.msus.edu>
Date: Mon, 18 Dec 1995 08:22:34 +0800
To: Black Unicorn <unicorn@schloss.li>
Subject: Re: Is ths legal?...
In-Reply-To: <Pine.SUN.3.91.951217055442.19904B-100000@polaris.mindport.net>
Message-ID: <Pine.ULT.3.91.951217151620.973A-100000@krypton.mankato.msus.edu>
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On Sun, 17 Dec 1995, Black Unicorn wrote:

> I this ruling would prevent the Supreme Court from defining 
> something as a privledge or right.
> 
> It would also pose this limitation on states, as they are public 
> entities, and thus driver's licenses cannot be defined as one or the 
> other, which as we all very well know, they are.

I am appending the file from the EFF that talks about the privledge/right 
distinction.  There is a URL as part of the file.

==========
=============== ftp://ftp.eff.org/pub/CAF/faq/just-a-privilege ===============
q: If a state university calls computer or network access a
"privilege", can they remove an individual's access arbitrarily?

a: In most cases no. U.S. courts no longer recognize the wooden
distinction between privileges and rights [Board of Regents v.  Roth,
408 U.S. 564 (1972)].

One need only look at the Constitution to see that "privilege" is
often used to mean something different than its informal use. The 14th
Amendment says "No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States;". The Constitution also refers to the "privilege of the writ
of habeas corpus", "privileges and immunities of citizens in the
several States", and "privileged from arrest during their attendance
at the session of their respective houses".

In _Goss v. Lopez_, the Supreme Court said a "student's legitimate
entitlement to a public education is a property interest which is
protected by the Due Process Clause and .. may not be taken away for
misconduct without adherence to the minimum procedures required by
that Clause." The Court went on to say that "the Due Process Clause
also forbids arbitrary deprivations of liberty. 'Where a person's good
name, reputation, honor or integrity is at stake because of what the
government is doing to him,' the minimal requirements of the Clause
must be satisfied."

So what are a university student's property rights?  "The Fourteenth
Amendment requires due process before a governmental entity, such as a
public institution, may deprive one of life, liberty, or property. In
a college setting, a student's good name and reputation are considered
a 'liberty' right, and a student's right to attend college is
considered a 'property' right. Due process would be required before a
student is deprived of either at a public institution." [_A Practical
Guide to Legal Issues Affecting College Teachers_ by Partrica A.
Hollander, D. Parker Young, and Donald D. Gehring.  (College
Administration Publication, 1985).]

So is a student's computer access a property right? I'd say it
depends. On one extreme, I'm confident a student has a property right
in account financed via the student computer or engineering fee. On
the other extreme, if a professor informally gave a student an account
on that professor's personal workstation, the professor could probably
remove that access without due process.

So what about department accounts? In the departments I know of,
accounts are given to any students who meet some set of requirements.
I think this makes them an entitlement for the students who qualify
and hence some modicum of due process is necessary.

ANNOTATED REFERENCES

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

=================<a href="http://www.eff.org/CAF/faq/due-process.html">
faq/due-process
=================</a>
* Due Process
 
q: Should users be suspended from the computer pending formal discipline?
 
a: No, with one exception. Just as students should not be expelled
...

=================<a href="ftp://ftp.eff.org/pub/CAF/academic/student.freedoms.a
aup">
academic/student.freedoms.aaup
=================</a>
* Student Freedoms (AAUP)

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

=================<a href="ftp://ftp.eff.org/pub/CAF/law/goss-v-lopez.mnookin">
law/goss-v-lopez.mnookin
=================</a>
* 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.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/goss-v-lopez.fischer">
law/goss-v-lopez.fischer
=================</a>
* 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.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/constraints.constitutio
nal">
law/constraints.constitutional
=================</a>
* 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.

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

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, and then:

  cd  /pub/CAF/faq
  get due-process
  cd  /pub/CAF/academic
  get student.freedoms.aaup
  cd  /pub/CAF/law
  get goss-v-lopez.mnookin
  cd  /pub/CAF/law
  get goss-v-lopez.fischer
  cd  /pub/CAF/law
  get constraints.constitutional

To get the file(s) by email, send email to ftpmail@decwrl.dec.com
Include the line(s):

  connect ftp.eff.org
  cd  /pub/CAF/faq
  get due-process
  cd  /pub/CAF/academic
  get student.freedoms.aaup
  cd  /pub/CAF/law
  get goss-v-lopez.mnookin
  cd  /pub/CAF/law
  get goss-v-lopez.fischer
  cd  /pub/CAF/law
  get constraints.constitutional



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____           Robert A. Hayden      <=> hayden@krypton.mankato.msus.edu
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