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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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#NotJustDorms. The Fourth Amendment: Security, Privacy and Technology

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrant shall issue, but upon probable cause, supported by an Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

For over 200 years, the words of the Fourth Amendment have protected individual rights to privacy and provided safeguards against unreasonable governmental search and seizure.  On college campuses, Fourth Amendment discussions are largely centered on residence halls or student conduct processes. However, advances in technology and the prevalence of electronic surveillance and monitoring present new challenges for colleges and the courts as they attempt to balance the need to provide enhanced security against individual rights to privacy. Has interpretation of the Fourth Amendment kept pace with technology and life in a surveillance state?

Katz v. United States (1967) was a landmark decision that clarified several key points; it concluded that the Fourth Amendment “protects people not places,” that what a person “seeks to preserve as private, even an area accessible to the public, may be constitutionally protected” and finally, that unlawful surveillance need not physically penetrate a space. Foreshadowing FISA, Justices Douglas and Brennen, in concurring, further expressed concern that the ruling not be construed to offer a “green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels ‘national security’ matters.” 

Keeping Katz in mind, fast forward to the vast array of electronic monitoring, surveillance and modern technology available in everyday life.  These technological advances may force a reinterpretation of Fourth Amendment protections and legal process, particularly as it pertains to “plain view” and limited scope of search.  Digital media after all, may be stored in the ambiguous and amorphous “cloud” and its actual content may not be readily apparent by simply looking at a document or file name. A 2013 article in the Suffolk University Law Review provides an interesting overview of the challenges of “plain view” and digital evidence and discusses the impact of Rule 41 of the Federal Rules of Criminal Procedure. Rule 41 has become a flashpoint in the debate over law enforcement assertions that such intrusions are necessary in order to maintain security versus those who argue that they represent too great a threat to individual civil liberties.  

A specific example where law and regulation may be in conflict with the intended protections of the Fourth Amendment is the Stored Communications Act (SCA). While intended to bolster Fourth Amendment rights within the context of digital media, the language of the SCA was written before the creation of smart phones, social media and cloud computing its language does not take into account how these changes have changed the nature of digital content and privacy. Attempts to amend and update the SCA have failed in recent years.  The SCA has also been a factor in cases where search of cell phone data incident to an arrest has been at issue. Under established interpretation, potentially incriminating evidence or items found on the individual’s person may be allowed under “reasonable search.”  But what about the contents on a cell phone found incident to an arrest?  Confusion and contradictory rulings on this subject in People v. Diaz, State v. Smith and others, ultimately led the U.S. Supreme Court to weigh in on the matter.  In Riley v California, Chief Justice Roberts delivered the opinion, which perhaps hints at the Court’s leanings regarding future privacy and search and seizure cases related to digital communication:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life," Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Tensions between privacy and security also play out on campuses.  Recent high-profile incidents of student protest have exerted pressure on campuses to be more “transparent” and to show that they are “doing something” to address real and perceived threats. In response, there has been a proliferation of electronic surveillance and monitoring on campuses. Debate involving the use of CCTVs, electronic access, monitoring social media accounts, police body cameras and electronic or network use policies are entering into campus administrative policy debates. As the balance between security and privacy becomes more tenuous, it behooves administrators to be mindful of legal challenges to traditional interpretations of the Fourth Amendment and the implication they may have for policy and campus governance beyond residence halls and student conduct.

This post was co-authored by Ms. Connie Frazier and Dr. David Nguyen. Ms. Frazier is Executive Director of UND Housing & Dining and a doctoral student in the UND Higher Education program.


Congratulations! Don’t Stay Too Long: Post-Graduation Options for International Students

United States has greatly expanded enrollment of international students with their percentage of total enrollment continuing to rise. Their presence adds to campus diversity and higher tuition rates typically paid by international students is at times used to fill budget gaps. With the increase in international students on our campuses, there has been more attention on services to assist them through to degree completion. What happens to these students after graduation is a question that has not been at the forefront for higher education administrators. With events, such as recent calls for changes to the H1-B visa program, one of the few routes for international students to stay in the U.S., it is becoming more important that administrators understand the post-graduation landscape for international students. The legal realm provides direction to gain understanding. 

In the United States, there is no clear path to permanent residence after completing post-secondary education. Most international students enter the US with an F-1 visa, which requires students to declare their intention to return to their home country after earning of degree. This is opposed to other countries which have programs that offer a clearer path to applying for permanent residency. For example, in November 2016, our neighbor and competition for talent, Canada, amended their main immigration program, Express Entry. International graduates of their institutions now earn more points in the system, and it is a part of a larger strategy for innovation and prosperity for the country.

Various law reviews have taken up this question of the post-graduation situation for international students. Pia Nitzschke writes in the American University Law Review about the benefits of expanding the Optional Practical Training program which allows international student graduates to stay in the United States in most cases for 12 months post-graduation to gain practical experience related to one’s field of study. However, when the Department of Homeland Security chose to expand the OPT program for STEM field graduates, not everyone supported the decision, including a tech worker’s union. The change led to a case where the Washington Alliance of Technology Works sued the Department of Homeland Security arguing that the expanded program timeline limited their ability to obtain employment in the field.  The court agreed the procedures for rules changes were not followed appropriately, but it did not find that the expansion of the program harmed the plaintiffs’ ability to obtain employment. When the Department of Homeland Security revisited the rule change following procedural requirements more carefully they expanded the OPT program for STEM to 24 months instead of the original limit of 17 months. This would provide even more time for international students with STEM backgrounds to obtain practical training post-graduation, but in focusing on STEM is limited in scope.

Meng Lu in the Thurgood Marshall Law Review argues that student visas should have dual intent meaning students could simultaneously enter as a student with the intent for permanent residence. Currently, students who attempt to change status after their studies may find they are denied if it is determined they entered the US as a student with the intent for permanent residence. In a 1984 case, Patel vs. INS,  the decision of the Board of Immigration Appeals’ to deny the request for transition of status from a non-immigrant student to permanent resident was upheld because it was found the petitioner had upon entry misrepresented his intention to leave upon termination of study.

One way international students can prove their intent to leave is traveling home during their studies; however, other regulations about employment often limit international students’ ability to do so. The issue of non-intention and the employment regulations came together in a similarly named, but different 1987 case Patel vs. INS. In this case, one of the petitioners entered the U.S. on a non-immigrant student visa but did not follow the employment regulations, which negatively impacted a request for change of status to permanent residence. If students are limited in their ability to obtain funds, they may choose not to return home. In doing so, they risk not showing a connection back to their native land. Additionally, this may limit the student’s ability to make career connections in their home countries. This may affect post-graduation employment data, at a time when it is increasingly being pushed as a measure of accountability.

Higher education continues to rely upon international students to grow enrollment, enhance diversity on campuses, and provide financial resources. Therefore, higher education and community leaders would benefit from increased attention to the post-graduation options and experiences of our international students. It may even impact whether they join our communities at all.

This post was co-authored by Ms. Renee Nilsen and Dr. David Nguyen. Ms. Nilsen is Assistant Director of Career Development at the UND School of Law and a doctoral student in the UND Higher Education program.


The Impact of the Recent Travel Ban on International Students Studying in the U.S. 

The United States is presently engaged in a fierce debate over immigration reforms that may ultimately affect the number of student visas available to international students and enrollment of international students in higher education institutions across the country.

In the aftermath of the September 11, 2001, terrorist attack, there have been different reactions by Americans in polls and surveys conducted to review the provisions of the Immigration and Nationality Act that governs the admission of foreigners including international students into the U.S and whether U.S. immigration law  restricts the ability of higher education institutions to attract international students.

There have also been numerous court cases on immigration issues that affect foreigners including international students, with the most recent being the court rulings against President Trump’s travel ban that initially targeted seven countries then later revised to six. The travel ban has attracted condemnation from several business corporations, including the top five most capitalized IT corporations in the world all of which are U.S owned (i.e. Apple, Alphabet (Google), Microsoft, Amazon, and Facebook). Also, several higher education institutions including leading U.S research universities such as Harvard and MIT have released press statements expressing their opposition to the executive travel ban because their international students who make significant contributions to their research and teaching responsibilities were adversely affected by the ban.

In the case of Hameed Khaleed Darweesh et al and New York State v. President Trump et al at the United States District Court, Eastern District of New York, several universities argued on behalf of Mr. Darweesh as friends of court that the immigration ban adversely affects Mr. Darweesh and other international students who are studying in the U.S. In this amicus brief, Brown University, Carnegie Mellon University, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology (MIT), Northwestern University, University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University and Yale University averred that their institutions seek to educate future leaders from nearly every continent, attract the world’s best scholars, faculty and students and rely on the ability to welcome international students, faculty and scholars into their communities of which the travel ban threatened by creating significant hardships for their valued international students, faculty and scholars. The respondents’ argument that the ban was imposed for a more secured America was set aside by the court which ruled in favor of the petitioners.

Several states also opposed the travel ban because of its adverse impact on the significant contributions that international students make to their economic growth. The International Institute of Education 2016 Open Door report revealed that 1,043,839 international students studied in the US in the 2015-2016 academic year. These students contributed $35.8 billion to the U.S economy in 2015. The states argued that these positive contributions would be eliminated if the travel ban is not revoked by the court. In the case of the State of Washington et al v. President Trump et al, the presiding district judge of the U.S District Court for the Western District of Washington, James L. Robert set aside the Government’s executive order in favor of the states’ arguments.

And in the case of the State of Hawaii v. President Trump, US District Judge in Honolulu, Derrick Watson ruled against the revised travel ban because it still discriminates on the basis of nationality and speech and it prevents Hawaiian residents from receiving visits from relatives in the countries affected by the ban. Also, international students from these countries would also be adversely affected thus affecting the intake of international students in higher education institutions in Hawaii.

With the appeal by the present administration of the lower and appeal court rulings against the Government’s executive order at the Supreme Court, it remains to be seen what the final outcome of the travel ban will be and how the decision of the Supreme Court will influence U.S higher education institutions’ efforts in attracting international students.

This post was co-authored by Mr. Taiwo Soetan and Dr. David Nguyen. Mr. Soetan is a faculty member at Red River College and a doctoral student in the UND Higher Education program.


Social Media and Students’ Freedom of Expression

The average college student is constantly online and frequently using social media.  Per the Pew Research Center, the use of social media by American adults has risen from 5% in 2005 to 69% in 2017.  Eight six percent of adults in the 18 to 29 age range use some form of social media on a regular basis, making them the highest percentage of users.  A Harvard public opinion poll found that among college students Facebook, Instagram, and Twitter showed the highest usage, at 88%.  So what happens when these constantly connected students post messages or images that violate policies, a school’s code of conduct, or are out of line with professional standards, and schools become aware of these posts?  What role does freedom of speech play in these situations?

Social media companies such as Twitter, Facebook, and other platforms, have attorneys engaged as “freedom of expression” lawyers to make sure that Internet speech remains free from censorship.  While higher education has long been a proponent of freedom of speech as well, recently they are having to balance these freedoms with issues of concern raised by social media, such as what speech is considered protected, what is unprotected, and what can be prohibited and sanctioned.  The availability of social media has led to an increased awareness of students engaging in questionable activities.  The question of how to balance freedom of speech with regards to higher education and social media is a recent one that is still playing out in the courts.

When discussing freedom of speech in relation to higher education, Tinker v. Des Moines Independent Community School District, (1969) is generally considered a benchmark case.  The U.S. Supreme Court ruled that neither students or teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  This case led to the “Tinker Standard” and established students’ rights to free speech, provided it was not disruptive to the work and discipline of the institution.   Recent cases involving social media and higher education institutions have referenced Tinker and the fact that posts, whether made on-campus or off-campus, could be disruptive to the educational setting.

  • In Tatro v. University of Minnesota (2012), Amanda Tatro appealed disciplinary actions taken against her by the University of Minnesota based on posts made on her Facebook page.  Tatro asked the court to review whether a public university violated a student’s free speech rights by disciplining a student for Facebook posts.  The court upheld the school’s decision and determined that the university did not violate her freedom of speech rights by imposing sanctions for Facebook posts that violate academic program rules.
  • In Yeasin v. Durham (2016), Navid Yeasin appealed his expulsion from the University of Kansas for non-academic misconduct that violated the student code of conduct.  The expulsion was based in part on comments made on his Twitter account that were considered harassing.  Yeasin argued that he exercised his First Amendment rights by posting on Twitter.  The United States District Court dismissed the case.
  • In Keefe v. Adams (2016), Craig Keefe was removed from the nursing program and Central Lakes College for unprofessional behavior and transgression of professional boundaries based upon Facebook posts.  Keefe filed a lawsuit against the dean of the college and other administrators stating that they violated his First Amendment rights.  The U.S. District Court of Minnesota dismissed his case and the United States Court of Appeals, Eighth Circuit upheld the appeal.  The Supreme Court declined to hear the case.

In each of these cases students argued that the actions taken against them were based on evidence obtained from social media and that this was a violation of their First Amendment rights.  While these cases demonstrate that institutions have successfully defended these actions in courts, each of the decisions included lengthy discussion and cited multiple precedents in order to determine if the students’ First Amendment rights had been violated.  At this time there is no definitive legal answer as to what rights colleges and universities have to sanction students based on posts made on social media.  As freedom of speech and social media continue to collide in higher education, this is a legal area that both institutions and individuals should give more consideration. 

This post was co-authored by Ms. Sherry Lawdermilt and Dr. David Nguyen. Ms. Lawdermilt is the Director of Technology for the UND Vice-President of Finance and Operations and a doctoral student in the UND Higher Education program.


Tread on This: Developing Policy While Protecting Students' Freedom of Expression

Freedom of speech and freedom of expression have been longstanding issues on higher education campuses. However, it seems that more and more recently administrators at public institutions of higher education are faced with increasing challenges when trying to address the issue of free speech on campus. These issues stretch in every corner of a college campus, from the open spaces, and invited guests, to student protests, and more recently viral social media. Balancing the rights of students on college campuses, while still upholding missions that often include commitment to inclusion and diversity is a minefield that demands respect as college administrators build policy and practice on campuses nationwide.

While not directly related to higher education, Tinker v. Des Moines Independent Community School District, et. al. lays the legal ground work for freedom of speech and has regularly been cited in other free speech cases since its ruling in 1969. In this case, students were protesting the Vietnam War by both fasting and wearing black armbands to school. As the school board found out about the armband protest, they threatened to suspend any student who wore an armband to school. When a student did so, the school suspended the student. The Supreme Court held that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  This case makes clear that students still carry their rights with them while they are in school, with the exception that it does not cause a disruption.

Even in Healy v. James, the court held that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.” Students in this case won the right to have a recognized student organization on their campus. Administrators again failed to silence the rights of students.

Where institutions have some ability to regulate is the “when,” “where,” and (sometimes) “how” students can assemble. Institutions can require that organizations submit a request to assemble and disseminate information in locations on campus. Though this is even contested such as in Shamloo v. Mississippi Board of Trustees where students were disciplined for not following requirements in the student handbook in regards to notifying the institution of a demonstration. The courts here indicated that the students were disciplined because of an unconstitutional policy. The court held that while other cases Bayless v. Martine have upheld policy that requires prior approval of demonstrations, the “one critical distinction between the regulation examined in Bayless and the Jackson State regulation… [t]he former made no reference to the content of the speech that would be allowed in the ‘Student Expression Area” (Shamloo v Mississippi Board of Trustees; 620 F. 2d 516, at 523). The policy at Jackson State required that demonstrations be “wholesome in nature,” thus the court argued that this was over vague, and a regulation of “content” not time, place, or manner. Further, Jackson State failed to provide any evidence that the demonstration caused a material disruption of classwork, or that the demonstration had substantial disorder or infringed on the rights of others.

Consistently, the courts have ruled in favor of students’ freedom of expression leaving institutions challenged to effectively combat discourse amongst a melting pot of beliefs and ideas. Where bringing a speaker to campus is recently resulting in violence, and those wanting to hear the speaker are left unheard. While the students causing unrest are being held accountable, institutions are left wondering what to do when bringing in an “unpopular” opinion turns to violence.

While the divide in opinion in this generation is more heated now than it has been in sometime, it is important for institutions to protect students freedom of speech and be involved with advancing the dialogue. Administrators at public institutions must recognize that the right to freedom of expression is a vital right for all students’, faculty, and staff, and that these rights can be protected while still upholding the mission and vision of the institution. However, navigating the policy minefield is more a challenge now than it has ever been with the emergence of social media and the 24 hour news cycle, like in 2015 when a fraternity’s “racist chant” was caught on camera and quickly went viral through social media, local and national news outlets. Where to draw the line on what is free speech and what is not, continues to be blurry. However for college administrators it is important to reflect on the rich lessons learned from history as they move into a challenging future.

This post was co-authored by Mr. Devin McCall and Dr. David Nguyen. Mr. McCall is Residence Life Director at Minot State University, Minot, North Dakota, and a doctoral student in the UND Higher Education program.