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John and Metad, Part II |
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A Case Study on academic integrity. By Gary Pavela This case study, written in 1993, is a sequel to the original "John and Metad," published in the College Administration Publications monograph Academic Integrity and Student Development . . . (1988). Many facts, suggestions, and citations have been added. Facts John and Metad were devoted friends and collaborators. Unfortunately, one of their professors at James Hunter college (a private liberal arts institution) suspected their collaboration extended to cheating during an examination. The professor became suspicious of John and Metad's activities at the outset of the examination, when she observed them sitting next to each other, contrary to her instructions to sit "every other seat." The professor asked John to move, but noticed a few minutes later that he had not done so. It was necessary for her to reiterate her instructions, and to point out a number of vacant seats. Later, during the first portion of the examination, John walked to the front of the room to ask the professor a question. She then observed him returning to his original seat next to Metad. Again, for a third time, she insisted that John sit in a different location. The professor decided to compare John and Metad's examination papers after the papers were submitted for grading. She discovered that both students' answers to 50 short answer questions were identical, including four wrong answers not commonly answered wrong by the rest of the class. Also, while both John and Metad had done "A" work on the short answer questions, neither did well on the essay portion of the examination, which covered the same material. Finally, the professor noted over a dozen erasures on the short answer section of the examination, which John stated had been done toward the end of the examination period. Before reporting the matter to college's all-student Honor Council, the professor met privately and individually with John and Metad. Both asserted they had not engaged in any form of cheating, and that the similarity of their short answer questions reflected the fact that they studied together. They also stated that their inferior performance on the essay portion of the test reflected the fact that neither had a history of doing well on essay examinations. Finally, John offered a number of reasons for his apparent determination to sit next to Metad during the examination. He asserted that the room was crowded, and vacant seats were not readily apparent. Furthermore, when he sat next to Metad a third time, he did so for "only two or three minutes" because he was "disoriented" and "not thinking or seeing clearly" due to "pressure of the examination." His numerous erasures, in his view, proved his innocence, since they demonstrated that he was uncertain about his answers, and was concentrating on his own work. The professor told both students she was not persuaded by their responses. She also told John she was especially disappointed to hear him tell what she regarded as obviously false and contrived story about why he persisted in sitting next to Metad. She then referred the case to the Student Honor Council for a hearing, in accordance with college policies. Pre-hearing objections John and Metad promptly hired a lawyer. The lawyer wrote a letter to the Vice-President for Student affairs, demanding that the case be dropped, because:
The campus press requests access Just after mailing her reply to John and Metad's attorney, denying his requests, the Vice-President received a call from the editor of the campus newspaper. The editor stated that a "confidential source" had told him of the upcoming Student Honor Council hearing. He demanded access to the hearing, on the ground that the state open meetings and open records law took priority over the Family Educational Rights and Privacy Act. The Vice-President rejected the newspaper editor's demand, but told him that students accused of academic integrity violations could request an "open" hearing, if they so desired. The hearing John and Metad opted for a closed hearing. They presented their own case, with the aid of a student "advocate," since James Hunter College did not permit students accused of academic dishonesty to have active legal representation in disciplinary proceedings. John told the same story to the hearing panel that he had told the professor when she confronted him. The course professor was on sabbatical when the hearing was held, but her written statement and other documentary evidence, including John and Metad's examinations, were submitted into evidence by the Honor Council "presenter" (a student appointed by the Honor Council to assist complainants in gathering and presenting facts against those accused of academic integrity violations). John and Metad objected to consideration of the professor's written statement, on the ground that they wished to question her about her allegations, as well as her and "insensitive" attitudes toward students. Their objection was denied, on the ground that hearsay is generally admissible in college administrative hearings. After considering the evidence, the hearing panel was uncertain whether to find John and Metad guilty, and adjourned for a week. During that time, the Chair of the panel was able to reach John and Metad's professor by telephone, in order to clarify several disputed points. He subsequently shared her responses with the rest of the hearing panel, which then voted to find found John and Metad "guilty." Although the hearing panel decided both students should be suspended, John received a longer suspension, since the panel believed he persisted in telling a fabricated story about his reasons for sitting next to Metad during the examination. An outraged lawyer John and Metad's lawyer was outraged! He raised the following issues in a letter to the college president:
Commentary [1] This case may provide some insight into the reluctance of faculty members to report allegations of academic dishonesty. Although the first obligation of the campus administration is to insure that the accused students are treated fairly and reasonably, it will also be important to create a climate in which faculty members believe their efforts are appreciated. Faculty members should not expect to "win" every case; nor should they take an adverse finding as a personal affront. However, it would be reasonable for faculty members to expect that honest and diligent efforts to protect academic integrity on campus will be properly recognized as a component of their "service" obligation to the institution. Relying upon circumstantial evidence [2] Circumstantial evidence may be relied upon, even in a criminal case (Richardson on Evidence, 1973, p.117). For example, a hearing panel may properly draw inferences from the totality of evidence in order to conclude that chance alone would not be a reasonable explanation for suspicious patterns of answers on an examination ( see, e.g. McDonald v Board of Trustees of the University of Illinois, 375 F. Supp. 95, 1975, aff'd 503 F. 2d 105, 1974). Care should be taken in relying exclusively upon statistical evidence. (See, e.g. Buss, W. and Novak, M., "The detection of cheating on standardized tests" Journal of Law and Education, V9, January 1980, p.14: "(a)ny limitations in the probative force of a statistical analysis to detect cheating are likely to be exacerbated if the statistical analysis provides the only evidence considered"). In the present instance, however, there are many other forms of evidence as well:
In deciding to pursue such cases, one might rely upon the aphorism, "when offered a number of different theories, start with the simplest." The facts outlined above are most simply and logically explained by a theory that would encompass a finding of academic fraud. By contrast, John and Metad offer a baroque defense, based upon coincidence, improbable differences in performance on the same examination, and John's stress-induced visual impairment (which, remarkably, did not affect his performance on the multiple choice portion of the examination). Essentially, it is reasonable to conclude that both students, having reportedly studied together beforehand, also found it necessary to collaborate during the examination. John was almost certainly determined to sit near Metad in order to give or receive unauthorized assistance. Such assistance may have been prepared in advance, reduced to writing, designed to be shared, and initially held by Metad. This suggestion must remain a hypothesis, however, since the precise nature of the collaboration probably cannot be established with certainty. It is simply not possible to know the "intentions and thoughts" of individuals in these situations, "but such unattainable evidence is not required" (Nash v. Auburn University, 621 F. Supp. 948, 959, M.D. Ala., 1985). Applying Constitutional standards at private schools [3] James Hunter College is a private institution, so it isn't bound by the constitutional due process requirements applicable to federal and state agencies. Still, since the relationship between students and a private institution is contractual, an implied term of "fair dealing" may be imposed by the courts. See, e.g., Carr v. St. John's University 231 N.Y.S. 2nd 410, 413 aff'd 12 N.Y.2nd 802 (1962): ...there is an implied contract between the student and the university that, if he complies with the terms prescribed by the university, he will obtain the degree which he sought. The university cannot take the student's money...and then arbitrarily expel him or arbitrarily refuse, when he has completed the required courses, to confer on him that which it promised, namely, the degree." In defining what might be "arbitrary" action at a private college, most courts are likely to set basic due process standards that won't be radically different from those applied at public institutions. See, generally, Ahlum v. The Administrators of the Tulane Educational Fund, 617 So. 2d 96 (La. App. 4 Cir., 1993). The Student Honor Council as "prosecutor and jury" [4] The Code of Academic Integrity at James Hunter College states that members of the Student Honor Council, chosen at random, will "present" cases against accused students at Honor Council hearings. "Presenters" are not part of the hearing panel, and have no vote. Other members of the Honor Council sit on the hearing panel, may ask questions of those who participate in the hearing, and have a vote. Most lawyers don't like proceedings that are "investigatory" in nature (i.e. members of a committee or agency gather evidence, ask questions, and ascertain facts), but the courts have specifically upheld such proceedings in the context of college and university discipline. For example, in Clayton v. Trustees of Princeton University (608 F. Supp. 413, 425, D.C. N. J., 1985) it was held that Princeton University's honor code offered accused students "a fair and impartial fact-finding process," even though Honor Committee members combined "prosecutorial and judicial functions" by investigating and hearing contested cases. Likewise, in Gorman v. University of Rhode Island (837 F.2d 7, 15, 1st Cir., 1988), the Court observed that "[i]n fostering and insuring the requirements of due process...the courts have not and should not require that a fair hearing is one that necessarily must follow the traditional common law adversary method." Specifically, the court held that the role of an Acting Dean of Student life as an advisor to a disciplinary hearing panel did not deny an accused student a fair hearing, even though the Acting Dean ruled on procedural issues prior to the hearing: Nor do the various roles of [the Acting Dean], while inappropriate in a judicial setting, necessarily violate the requirements of fairness. As Justice Blackmun noted in Richardson v. Perales, 402 U.S. 889 (1971) "the advocate-judge-multiple hat suggestion...assumes too much and would bring down too many procedures designed, and working well..." The University procedures are designed to give students an opportunity to respond and defend against the charges made, and there is no evidence to show that Gorman was denied a fair hearing because of [the Acting Dean's] multiple roles (p. 15). The Professor's "defamatory" and "abusive" comments [5] The argument the Professor "defamed" John and was "offensive" and "abusive" to him in their private conversation does not appear to be accurate, or relevant to the decision to hold an academic dishonesty hearing. First, since John and the professor were speaking privately, the teacher's verbal expression of concern about John's "false and contrived story" cannot be defamatory, since it was not directed to or overheard by a third party. Also, it was appropriate for the professor to send a written report the underlying facts of the case to campus officials responsible for academic integrity and student conduct, as provided by the institutional regulations. Even if it were subsequently determined that some or all of the facts in the professor's report were inaccurate, it is unlikely the professor could be found liable for defamation, unless the report were reckless, or motivated by malice (see, generally, Pavela, "The Law and Academic Integrity" in Kibler et. al., Academic Integrity and Student Development, pgs. 52-54, 1988; the law accords a qualified or absolute "privilege" when referring allegations of wrongdoing to those responsible for taking appropriate action). Legal issues aside, John's suggestion that the professor's comments were "offensive" and "abusive" reflects unjustified sensitivity. Complaints of this nature must not be allowed to inhibit staff members from speaking candidly with students. If the professor believed John was lying to her, it was reasonable to raise the issue with him, and to explain why such behavior is ultimately self-defeating. Engaging students in dialogue and discussion about ethical issues can generate complaints that faculty and staff members are "judgmental" and "insensitive." What is truly insensitive, however, is the aura of the benign, undifferentiated benevolence which too many educators use in their relations with students. The latter practice has become a sophisticated art of survival which often enables college and university officials to avoid confrontations and quarrels. Unfortunately, it also fails to help students define the boundaries by which they may shape their character. (See also Bok, S., Lying, 1978, p.257: "many" individuals "who might be able to change the patterns of duplicity in their own lives lack any awareness of the presence of a moral problem in the first place, and thus feel no need to examine their behavior..."). International students and academic integrity standards [6] Declining to hold international students accountable for clearly stated campus rules would be a perversion of the concept of multiculturalism. Learning to live together in a diverse world requires self-discipline, and respect for the values of a host society. Most of us would consider it presumptuous, for example, if Americans visiting Metad's country asserted they were free to ignore laws or regulations that seemed to differ from those in the United States. Furthermore, as discussed in the Spring 1993 issue of Synthesis Law and Policy in Higher Education ("Academic Integrity and Cultural Diversity," p. 345), there's considerable agreement among the peoples of the world about how basic virtues--like charity, temperance, and honesty--should be defined (see, e.g. the "Declaration of a Global Ethic," a set of common ethical values beginning with the Golden Rule, adopted on September 2, 1993 by the Parliament of the World's Religions; Washington Post, September 3, 1993, p. A3). Ethical dialogue is one way of discovering common ethical ground. Basically, Metad should be asked if he would be willing have his behavior (collaborating on an examination designed to test individual competency) become normative, even within his own society. For example, would he gladly fly on an airplane if he learned the pilot passed his written flight tests only because a friend gave him the answers? Few persons--from any culture--would answer that question honestly in affirmative. The likely predominance of "no" answers suggests the existence of at least one "cross-cultural" ethical value (personal honesty about the acquisition of knowledge or skills, especially when others are or will be depending upon those skills). Similar questions will probably elicit others. Discrimination based on handicap or disability [7] The fact that John may have a "personality disorder" would not excuse him from the obligation to adhere to reasonable college rules. The only possible exception would be if his perception of reality were grossly impaired, or he was unable to comprehend the nature of the disciplinary charges against him, or assist in his defense. If that's his condition, most physicians would want him hospitalized. Section 504 of the Rehabilitation Action of 1973, and the Americans with Disabilities Act, prohibit discrimination on the basis of handicap (or disability). It's not considered discrimination on the basis of handicap to hold individuals responsible for unlawful or prohibited behavior, even if the behavior is "caused" or influenced by a mental disorder. See, e.g., Landefeld v. Marion General Hospital ___F2d___ (6th Cir., 92-3634, 1993). Dr. Nelson Borelli, Assistant Professor of Psychiatry at Northwestern University, has written on the subject of ethical responsibility and mental disability: As a physician and a psychiatrist, I can attest to the existence of bodily or chemical disfunction called diseases. However, disease has nothing to do with bad behavior. If a person has pneumonia and spits on the floor of my office, I call it a person with disease and bad manners. Similarly, if a person has depression and kills, I call it a person with disease and bad manners--murderously bad manners...No amount of brain research...will explain why someone spits or kills. The more we look at the brain, the further away we are from the complex subject of human ethics...The road to decency, to civilized society, is a difficult one. It is a road of hard work, discipline, awareness of ethical values, education, and frustrations. Let us not delude ourselves with the opium of mental illness as an explanation (Chicago Tribune, June 17, 1988, p. B4).The lawyer's demand for pre-hearing "discovery" [8] It's usually good policy to share with accused students the names of potential witnesses and copies of documents to be introduced into evidence. Accused students will probably have access to that information anyway, since it's normally kept in files under their names, and will be considered "education records," as defined by the Family Educational Rights and Privacy Act (FERPA). However, unless a college adopts contrary rules as a matter of policy, there's no due process requirement for pre-trial (or pre-hearing) "discovery," even in a criminal case (see Weatherford v. Bursey 429 U.S. 545, 559, 1977: "There is no general constitutional right to discovery in a criminal case..."). Furthermore, the voluntary release of at least some of the information the lawyer is requesting from James Hunter College (i.e. other students' examinations) would violate student privacy rights, as protected by FERPA. To obtain the examinations, the lawyer will have to demonstrate why they are relevant to the charges against his clients, and obtain a subpoena. If a subpoena is obtained, the College is obligated under FERPA to notify the students involved. Press access to Honor Council proceedings [9] James Hunter college is a private institution, so it isn't likely the state "open records" or "open meetings" law will apply. In any event, the college newspaper editor appears to be giving an expansive reading to a recent court case that applies only in Georgia (which is not the state where James Hunter College is located). See Red and Black Publishing Company v. Board of Regents (Georgia Supreme Court, March 15, 1993, slip opinion excerpted in Synfax Weekly Report 93.65, p. 64, March 18, 1993). In the Red and Black case the Georgia Supreme Court held that both the state Open Records and Open Meetings Acts applied to disciplinary proceedings conducted by the University of Georgia. It dismissed arguments that such a policy would violate FERPA, on the ground that disciplinary records and proceedings are "not of the type [FERPA] is intended to protect, i.e. those relating to individual student academic performance, financial aid, or scholastic probation." This is a novel and questionable interpretation of the law. You should react with skepticism (and consult with counsel) if anyone asserts it applies outside of the state of Georgia. Right to counsel [10] The courts are virtually unanimous in holding there is no legal right to the full and active participation of an attorney in student disciplinary cases ( Nash, supra). See, e.g., Hart v. Ferris State University 557 F. Supp. 1379 (W.D.Mich., 1983): If plaintiff's counsel were permitted to cross-examine witnesses, the College might well find it desirable to have counsel ready to represent its own interests in insuring that its witnesses not be harassed and that plaintiff's witnesses be subjected to equally searching cross-examination. The entire character of the hearing could be escalated into a fully adversary proceeding."However, if accused students are not allowed active representation by counsel, colleges (including private colleges) must take care not to use attorneys as "prosecutors." See Ahlum, supra: Clearly, Tulane's system is designed to be non-adversarial and to allow the accused student the opportunity to present his side... If the University allows an attorney to present its case and engage in extensive or harsh cross-examination, fairness would dictate that the accused be allowed to have an attorney present to represent his interests.It's possible that a right to active legal representation for students could be triggered by "harsh cross-examination" conducted by a lay administrative officer (e.g., a dean experienced in campus administrative proceedings). Care should be taken to insure that facts are presented and questions asked in an atmosphere of civility, with the objective of discovering the truth, rather than obtaining a "conviction." Absence of the professor; right of cross examination [11] John and Metad raise an important due process argument when they assert that they were unable to question the referring faculty member at the hearing. It is true that a series of cases has held that there is no constitutional right to cross-examination in college or university disciplinary proceedings. See Dixon v. Alabama, 294 F. 2d 150, 159 (5th Cir., 1961): "This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required."); Jaska v. Regents of the University of Michigan, 597 F.Supp. 1245 (E.D. Mich., 1984): "The Constitution does not confer on plaintiff the right to cross-examine his accuser in a school disciplinary hearing."); Nash, supra, p. 955: "Neither the Fifth Circuit...nor the Supreme Court has expanded the rule in Nixon to require cross-examination and confrontation of witnesses in the context of school disciplinary hearings..." Nonetheless, in other contexts, judges recognize the value of cross-examination as an "essential and fundamental requirement for [a] fair trial" Pointer v. Texas, 380 U.S. 400, 405, (1965), and may require it if a college disciplinary case "resolved itself into a problem of credibility;" Winnick v. Manning, 460 F.2d 545, 550 (2nd Cir., 1972). Application of the "Golden Rule" would be a useful guide in this context. If a faculty member or administrator would wish to cross-examine a person who had made a serious accusation against them, it would seem prudent and reasonable to accord a similar right to students. The absence of an opportunity to cross-examine witnesses, of course, does not necessarily mean that the findings should be reversed, or a new hearing conducted. An honest assessment of the potential value of cross-examination needs to be made before making a final decision. For example, if John and Metad do not deny the basic facts set forth in an affidavit by the professor, cross-examination about unrelated issues (e.g., "insensitivity" to students) would have "no bearing on the outcome of the hearing" and it would serve "no useful purpose" (Winnick, supra, p. 549). The absence of cross-examination in this case, however, almost certainly would have served a useful purpose, and was not harmless error. This is highlighted by the fact that "private" testimony from the professor was considered by the hearing panel, and appeared to be dispositive. Considering such testimony without notice to John and Metad was a gross procedural error that violated the spirit if not the letter of the College's Code of Academic Integrity. James Hunter College, even as a private institution, is vulnerable on this issue, since both private and public institutions are obligated to follow their own regulations. See e.g., Weidemann v. State University of New York at Cortland, 592 N.Y.S. 2d 99 (A.D. 3 Dept., 1992), and citations therein pertaining to both public and private institutions of higher education. The absence of cross-examination of a referring faculty member, whose relevant "private" testimony is subsequently considered by the hearing panel, is a sufficiently serious error to justify a new hearing. A rehearing might be held by the original hearing panel (see NLRB v. Donnelly Garment Company, 330 U.S. 219, 1947, cited in Kenneth Culp Davis, Administrative Law Text, 1972, p. 248: a judge is not "disqualified from sitting in a retrial because he was reversed on earlier rulings." pp.236-237), but it would avoid unnecessary controversy to use a new panel, if possible. Inadequate hearing notice [12] It would be a serious procedural error to conduct a hearing if an accused student did not receive proper notice, as defined in campus policies. See Weidemann, supra. A new hearing may be required in John and Metad's case, if their attorney has stated the facts correctly. The hearing record in John and Metad's case should be reviewed before a final decision is made on the issue of notice. The hearing officer might have discovered that notice was deficient, and asked the students if they were willing to proceed nonetheless. An accused party may, of course, knowingly and freely waive procedural requirements (Yench v. Stockmar, 483 F. 2d 820, 10th Cir., 1973), including a notice requirement. The hearing as a "circus" [13] The simple fact that there is free-wheeling discussion during a campus hearing, or witnesses speak out of order, is not a due process violation. Indeed, such informality might be appropriate, in order to put the participants at ease, and to engender the candid exchange of views and information. This was the view of the United States Court of Appeals for the Sixth Circuit, in reversing a lower court decision in Crook v. Baker 813 F. 2d 88 (6th Cir., 1987). The lower court had overturned a University of Michigan determination to revoke the graduate degree of a student accused of fabricating data in his master's thesis. In an acerbic opinion, the lower court judge used the word "circus" to describe the University's informal hearing process. A unanimous appellate court disagreed: Though the district court in its opinion described the hearing presided over by Professor Rosberg as a 'circus-like free-for-all,' the full transcript that is in the record makes clear that it simply was an informal rather than a trial-type hearing (p. 90).On the issue of whether students could be entrusted with primary responsibility for resolving contested academic integrity cases, three judges on a panel of the United States Court of Appeals for the Fourth Circuit observed they "might" disagree with the wisdom of such a practice, but could find no constitutional defect in it. See Henson v. Honor Committee of the University of Virginia, 719 F.2d 69, 73 (4th Cir., 1983). A biased hearing panel member [14] John and Metad are entitled to an unbiased hearing panel. However the simple fact that one of the panel members was dating someone who previously had a social relationship with John does not constitute sufficient proof of bias. It will be necessary to offer specific evidence that the panel member was motivated by some sort of animosity toward either John or Metad (Davis, supra, p. 249). See also Gorman, supra, p. 15. The Court in that case observed that "in the intimate setting of a college or university, prior contact between the participants is likely, and does not per se indicate bias or partiality." Even a panelist with a superficial knowledge of the background of the case need not be disqualified, provided that he or she can "judge the case fairly and solely on the evidence presented." Keene v. Rodgers, 316 F. Supp. 217, 222 (D. Me., 1970). However, hearing panel members who know an accused student, or who may be familiar with the facts of the case, should reveal such knowledge at the outset of a hearing, rather than at the end. Generally, if the accused student objects to the panelist's participation, it would be prudent to find a replacement. A defective tape [15] Any commitment in College policies to record disciplinary hearings should be honored. However, in order to justify the time and expense of a new hearing, John and Metad's lawyer must make a timely objection, and establish that his clients were prejudiced by the absence of a complete record. For example, the initial fifteen minutes of the hearing may have been devoted to introducing hearing board members. The failure to record that portion of the proceeding would be harmless error. See Ahlum, supra, p. 101. Lost or defective hearing tapes are a surprisingly common problem in campus disciplinary cases. Special attention should be paid to obtaining reliable recording equipment, and training designated board members in it's use. As an additional safeguard, a different board member should be assigned to keep notes regarding the order of witnesses, and a summary of their basic testimony. Finally, it would be best if campus regulations did not contain a commitment to tape or transcribe hearings. For example, disciplinary regulations at the University of Maryland-College Park state that: hearings may be tape recorded or transcribed. If a recording or transcription is not made, the decision of the board must include a summary of the testimony and be sufficiently detailed to permit review by appellate bodies and by staff members in the Judicial Programs Office.An additional penalty for "perjury" [16] It would be lawful even in a criminal case to increase a penalty if the decisionmaker determined that the person found guilty of the pending charge gave false testimony (after making an oath or affirmation to tell the truth) "on a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 122 L.Ed. 2d 455 (1993). This result has special applicability in the college and university context, where part of the educational objective of a campus disciplinary hearing is to teach students they have a responsibility to tell the truth.
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