Student Defense: Protecting Due Process Rights in the Digital Age
| | Student Rights
Life for students now is nothing like it was for previous generations. Technology has transformed everything, from access to information to methods of communication. Added to the basic tech changes are the complex interactions on social media and the explosion in artificial intelligence. Despite these changes, campus rules and the procedures for determining whether a student has violated them often date back decades.
How can students’ due process rights be protected in this atmosphere? How can students even understand their due process rights? It takes a focused approach to apply due process rights in a campus environment and to protect those rights in the face of complex digital evidence. While most attorneys are familiar with the general concept of due process, only experienced student defense attorneys understand how due process is applied in campus proceedings. And it requires consistent commitment to stay up to date on the most technologically effective evidence in cases involving accusations of AI cheating and other increasingly common allegations. To protect their rights, students need to work with a legal team that is experienced in this fast-changing environment.
The 24/7 Disciplinary Cycle
Students not only communicate at all hours of the day and night, but their communication is often public and preserved through social media or other channels. The things they say and do may be monitored and held against them by the school, even when those statements or actions occur off campus. Often, it is not initially clear when a post was created or where the events depicted occurred.
Students have free speech rights, and schools have an interest in regulating conduct on campus, particularly when it involves safety or the protection of others’ rights. The law attempts to balance those rights. But colleges and universities do not typically engage in that balancing act. Instead, they move to protect their own interests and further their own agenda.
Technological developments, such as social media, allow schools to monitor their students’ conduct on a near-constant basis. When they observe something that they interpret as a violation of school rules or just something that projects the wrong image, they frequently issue accusations of a violation.
The U.S. Supreme Court has held that, although schools may be permitted to regulate speech on campus and, in some situations, even off campus, the interests the school seeks to protect must be sufficient to outweigh the student’s right to freedom of expression. Schools have a substantial interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of rights of others.” Those interests may prevail even when speech occurs off campus, particularly if it involves severe bullying, harassment, or threats. However, in many cases, the student’s rights outweigh the school’s interests, so it is important for students accused of violating rules when exercising freedom of expression to have a means of effectively protecting their rights. This may require advocacy in a court of law to obtain impartiality.
AI and Academic Dishonesty
Apprehensions about plagiarism and other forms of academic dishonesty have always been a concern on campuses, but the ease of creating content using artificial intelligence has ramped up the worry level to epic proportions. Many professors adopt the attitude that most content is created through cheating and that it is up to the student to prove otherwise. Students are guilty until they can prove themselves innocent.
This is particularly true when software flags an assignment as AI-generated content. However, the software used to “detect” AI-generated content is often seriously flawed. Students with neurodivergent thought processes and those who learned English as a second language are wrongfully accused of cheating more frequently than other students because the software detects their speech patterns as artificial. Professors who trust AI detection programs more than their students’ integrity often fail to use other methods to verify an accusation of AI cheating.
The good news is that technological evidence can be used effectively to demonstrate the creative process behind the content and show how the project developed organically. Tech evidence can also reveal faults in the program used to evaluate the student’s work.
The bad news is that the evidence in these cases is complicated and challenging to prepare. It requires combined knowledge of legal theories and forensic application of code history to protect a student’s due process rights when allegations of AI cheating arise.
Digital Evidence in Title IX Cases
Some of the most common rule violations alleged in campus proceedings involve issues of Title IX rights. Title IX prohibits discrimination on the basis of sex, and that includes harassment or violent conduct such as sexual assault. Students who feel their rights were violated can file a complaint on campus, and it will be handled very differently from how police would handle criminal charges for the same conduct. The investigation will be completed very quickly; students may not be encouraged to consult an attorney, and the process used to determine whether a violation occurred does not afford the accused the same rights as the criminal process.
Consent and state of mind are important issues in many Title IX cases, and evidence from phones, cameras, and other electronic devices can often be critical for demonstrating what happened or what was communicated between the parties involved or to other individuals. Recovering digital evidence in a form usable in campus proceedings or court is a vital task that must be addressed as quickly as possible.
Work with a Legal Team That Understands How to Protect Due Process Rights in All Situations
The process and outcome of a campus disciplinary proceeding can impact a student far into the future. Whether a student is responding to allegations of wrongdoing or filing a complaint to assert rights, when the process is not handled appropriately, the damage to a student’s reputation and self-esteem can be nearly irreparable. The consequences can haunt them far into the future, interfering with future education, career goals, and even personal relationships.
For protection, it is wise to seek guidance and representation from experienced student rights attorneys who know how to use digital evidence effectively. All students deserve to have their side of the story given fair consideration, but campus proceedings often move so quickly that students are often caught unprepared, without time to fully investigate and present their evidence.
Working with legal advocates experienced in campus disciplinary proceedings can make all the difference. To learn more about how the knowledgeable team at Nesenoff & Miltenberg could protect due process rights in your specific situation, we invite you to contact us to schedule a confidential consultation.