Retroactive Discipline: Can Schools Punish You for AI Use After the Fact?
| | Student Rights
Students are increasingly facing this situation: they complete an assignment, turn it in, and are accused of violating the school’s policy on the use of artificial intelligence (AI). However, in many cases, the school’s policies on the use of AI were either incomplete or nonexistent when the work was assigned.
Can students be penalized for violating policies that did not yet exist at the time the violation supposedly occurred? Logically, the answer would seem to be “no,” yet courts have been known to side with schools in cases involving the seemingly retroactive application of AI policies. In these days of AI paranoia, it takes an experienced and sophisticated student defense team to protect the rights of students accused of “cheating” through violations of AI policies.
School Authority is Broad But Not Unlimited
Schools, particularly colleges and universities, as well as lower-level schools that operate independently of local government, have considerable freedom to set academic policies. They also have the freedom to establish procedures for evaluating potential policy violations and imposing penalties.
However, their ability to act is not unlimited. So if a student submits an assignment in February and the school implements a policy the following month that prohibits methods used to complete the assignment, there are legal arguments that can be used to fight the school’s actions. In some cases, it can be argued that applying the rules retroactively violated students’ due process rights. In other cases, arguments may be more likely to succeed if grounded in contract. The specific circumstances of the case will determine the most persuasive legal strategy and arguments to protect the student’s rights.
Policy vs. Reality
Trying to develop policies on the use of AI in education is like trying to shoot at a target on the back of a hummingbird. It’s never in the same place long, and you don’t know where it will go next. The technology is evolving quickly, and its uses continue to change. While educators are aghast at the potential misuse of AI, they do recognize that it can have educational value in certain applications. Those with any common sense realize that AI cannot be avoided entirely and that it is better to try to tame the beast rather than hope to banish it, when so much of the population has eagerly embraced it.
Students and teachers alike often do not understand what a school’s academic policies allow regarding AI and when the boundary of misconduct has been crossed. Schools frequently scramble to update their policies to address conduct that has already occurred. While this may be fairly applied to work submitted after adoption of the policy, it can be argued that it is not fair or legal to apply the new policy to work assigned before the policy’s adoption.
What Appears to Be Court Approval of Retroactive Application of AI Policies Can Be Quite Different
A case in Massachusetts drew considerable attention because it was one of the first to address the issue. The parents of a high school junior sought a preliminary injunction against Hingham High School after the school disciplined their son for using generative AI to complete part of an AP history assignment. The relief sought by the parents was the removal of the disciplinary consequences imposed, specifically, they wanted the student’s disciplinary record expunged, and the grade for the class raised. They argued that the penalties were unfairly harsh and that the school was arbitrary and capricious in imposing discipline, as the student handbook did not include any policies or rules regarding the use of artificial intelligence at the time of the alleged violation.
U.S. Magistrate Judge Paul G. Levenson disagreed and denied the motion for the preliminary injunction. While it might seem like the ruling could give schools the green light to apply AI policies retroactively, that is not actually what the reasoning dictates.
Due Process Arguments
The Judge addressed procedural due process arguments before determining that the allegations of harm alleged by the student were not “sufficient to support a claim cognizable under the Constitution.” He determined that the student was not in danger of losing the right to an education, and the student was provided with an appropriate opportunity to respond to allegations.
With respect to substantive due process, the judge determined that the school’s actions in penalizing the student did not “shock the conscience.” Moreover, the court noted that the school took several steps to confirm that AI was used to complete the assignment, including the use of multiple detection tools.
Lack of Express Prohibition
The parents argued that the student’s use of AI technology was not expressly prohibited when the assignment was completed. However, Judge Levenson determined that because the school handbook prohibited “cheating” and “plagiarism,” the student should have been aware that his particular use of AI was a violation. The judge found it irrelevant that the school later added rules to prohibit AI use. Instead, he determined that the existing rules should have been sufficient to put the student on notice that the conduct violated school policies.
Therefore, the judge did not approve the retroactive application of AI rules. Instead, he said that general academic conduct rules were sufficient to prohibit the use of AI as applied in this situation.
Every Detail Can Be Critical in a Student Defense Case
In the Massachusetts case, the student was disciplined for incorporating large sections of AI-generated text without citation. This would be viewed by many as simple plagiarism, regardless of whether technology was used to produce the text.
Many other uses of AI have been censured when the rule violations or inappropriateness of the use were much less clear-cut. In many cases, a skilled and knowledgeable student defense attorney can make the arguments to distinguish the case from existing precedent and persuasively demonstrate why a student should be entitled to relief from disciplinary action.
If you have concerns about an accusation of academic misconduct involving the purported use of AI or any other issue, we invite you to schedule a confidential consultation with the student defense attorneys at Nesenoff & Miltenberg to discuss the strategies that might be most effective in your case.