Updating the Academic Integrity Policy at Your Institution (Part III)- Standards of Review

Editors Note: Although this post is based on American law, I argue the post has international implications because the legal principles that Christian presents reflect ICAI’s own fundamental values – fairness, responsibility, trustworthiness, respect and honesty. While each institution must follow the laws and requirements of its own country when implementing their policy, ensuring that the fundamental values are reflected in Policy would generally be considered as good practice.

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In this third edition of Academic Integrity Policy, I will discuss the due process that should be afforded to students going through a violation allegation process, and then the “standards of review” that should be considered in the implementation of an appeals process.

Due process is a relatively new phenomenon in the American education world, brought about largely as a result of a 1961 judicial case – Dixon v. Alabama State Board of Education. Before that case, educational institutions operated  in loco parentis (in place of the parent), which gave sweeping discretion to institutions.  However, Dixon established that while higher education institutions have certain leeway in how we make decisions and treat students, we must do so with a consistent, documented process.  That is, of course, due process.

Due process is considered fundamental to ensuring fairness in the legal system. Due process can include such requirements as notice that a case can or will be brought against a student, that the student has the right to present witnesses at a hearing and can cross-examine witnesses against them, indication of whether they can bring an attorney to the hearing and what role that attorney may play, and ultimately what the possible sanctions can be (failure in the class, suspension, expulsion, etc.) given the context of the case.

Once an initial decision has been made by a body (e.g., the jury or judge in the legal world; an instructor or administrator in the education world), there should be an appeals process afforded to the student. This appeals process should have established “standards of review”, a legal term of art that describes the level of scrutiny that should be placed on the previous decision-maker (e.g., the jury or judge in the legal world).  In the context of plagiarism and cheating, this may mean to what degree an administrator or hearing body can override the academic decision of the instructor or a decision of another administrative body. In the legal world, this “standard of review” is intended to make certain the decisions made are not just right, but were only made after appropriate due process was granted to the impacted persons.

Below are some of the “standard of review” options used in the legal field that you may want to consider applying to the appeals process in your institutional policy:

1.) Arbitrary and capricious.  Commonly used in governmental agency decisions, this is the most deferential standard of review to the original decision-maker.  Those hearing the appeal will uphold the original decision unless the decision-maker decided in such a way that was inconsistently applied to other students or not following the prescribed process that is required.  Such examples can be failing one student completely in a class for plagiarism while only giving a zero on the assignment to other students despite committing the same illicit act, or not giving appropriate notice to a student that they did an alleged wrong and did not give them the opportunity to file an appeal.

2.) Clearly erroneous.  Used most often in reviewing the factual decisions of district courts, this standard is still relatively deferential, as it will only override the decision-maker should there be a definite showing that a mistake was made.  Such an example would be the student showed the appeal body that no possibility that they plagiarized or that no evidence exists to show that plagiarism occurred.

3.) Substantial evidence.  Considered a more beneficial standard of review for decisions of fact to the defendant (or for this discussion, the student), this requires that the appeal body evaluate all facts and evidence before them and that a reasonable person would agree on the previous conclusion given that evidence.  For academic integrity, this would ask the appeal body to uphold the instructor’s decision if they agree the evidence likely points towards alleged breaking of the rules, but overturn that decision should they feel in their own judgment that the act did not occur.

The standard most commonly applied in higher education is arbitrary and capricious, which is often the standard courts take in reviewing institutional decisions.  This means that as long as the rules are being followed consistently, in a non-discriminatory fashion, and not irrational, the instructor and the institution may make relatively sweeping discretionary decisions.  This regime protects academic freedom of the instructor by allowing them to make individual decisions on what is and is not cheating within their own academic capacities and expertise.

But with academic freedom also comes academic responsibility.  It seems that the majority of the time the arbitrary and capricious standard works.  However, this standard can preclude a student from winning an appeal when they are ostensibly correct on the merits.  As long as the instructor is consistent in punishing students in the same way for the same action, the instructor wins, whether or not the student actually plagiarized or cheated.

Due to this, there is an argument to be made that the standard of review should be raised, either to clearly erroneous or substantial evidence.  It is uncommon, but cases of instructors levying borderline plagiarism cases and winning despite a lack of considerable proof is not unheard of. This can also protect students who inadvertently commit academic integrity violations or those that are truly ignorant to the rules of citation.  However, it can also lead to true cases of plagiarism not being punished and risks students filing and winning otherwise sham appeals based on a lack of evidence or not convincing the appeals body sufficiently. Ultimately, this can risk academic freedom by second-guessing the decisions of qualified, degreed experts.

In the grand scheme of things, it is not particularly required by law that an institution pick a specific standard.  If a lawsuit is filed against the institution, the court would not second-guess the standard being used, but whether it is applied fully and fairly in every case.  If you feel your institution is appropriately equipped to handle a legalistic process, you may want to consider a higher standard, while noting the potential negative impacts on academic freedom.

About the Author
Christian Moriarty is a Professor of Ethics and Law and Academic Chair of the Applied Ethics Institute with the College of Policy, Ethics, & Legal Studies at St. Petersburg College. Professor Moriarty received his Bachelor’s degree in Psychology and Interdisciplinary Sciences at the University of South Florida, his Master’s degree in Bioethics from USF, his Juris Doctor from Stetson University College of Law, and is a licensed attorney with the Florida Bar. He teaches Applied Ethics, Medical Ethics, Business Ethics, Legal Ethics, Business Law, and Art Law. He researches and presents on such subjects as academic plagiarism, using humor and empathy in the classroom, and higher education law and ethics. Professor Moriarty also serves on the Executive Board of the International Center for Academic Integrity.
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