An accusation of breach of academic integrity is an emotionally disabling and potentially life-changing event. The legal rights and protections that apply when students face formal allegations of improper or unethical academic conduct are a weak and inadequate arsenal, as measured by contemporary principles and standards for fact-finding and fundamental fairness and due process. There is no necessity for such an uneven playing field or in leaving students unprotected and ill-equipped in these high-stakes circumstances, but there are no signs of reform on the American legal horizon.
There is a significant difference in the legal lot of students attending public colleges and universities as compared to the legal rights of students enrolled at private schools. Students at private schools have virtually no legal rights or recourse for defending against or challenging university process or administrative action. Students at public schools have some limited rights and abilities to enforce their scant legal rights.
The potential consequences for the student found culpable of academic misconduct can include: dismissal and forfeiture of current term tuition; ineligibility for admission to other accredited colleges and universities; forfeiture of earned credits toward degree; freezing of official academic transcripts; ineligibility for scholarships and grants, externships, internships, study abroad programs, athletic participation; 2-year shut-out for federal student financial aid; early repayment obligations for some existing student indebtedness;; ineligibility for military service, government employment, and state professional/occupational licenses.
For many students, especially those falsely accused, the most painful and damaging of the potential consequences is the stain to the student's reputation for honesty and good character.
Origins of Accusations of Breach of Academic Integrity :
The most common origin of an accusation of cheating or plagiarism is the instructor, and the accusation is often based on a “gut feeling," based on the faculty member's assessment of the questioned work as higher quality than prior work in the course by the student. Some professors and university staff rely on sophisticated software that compares exemplars of the questioned work against samples of prior work of stipulated authorship, and reports a statistical correlation or numerically-expressed likelihood that the questioned work is not original.
Other accusations are based on reports of proctors and Teaching Assistants and complaints by classmates.
The Investigative Process:
The school's investigative process is a minefield for the accused student. All statements made during the investigation will be used against the student, but there is no “right" to refuse to answer.
Typically, the school will not allow the student to utilize legal counsel in any interview, nor to record the statements by the student.
The school will invoke FERPA re principles of confidentiality with respect to the fact and results of the investigation, but the process of interviewing classmates and faculty will quickly result in wide-spread gossip about the accusation throughout the student community. Inevitably, the student's “support circle" will begin to narrow and withdraw as friends, classmates, other students, and even faculty worry about the potential consequences to themselves if they fail to acquiesce in the perceived objectives and conclusions of the investigation. Investigating faculty or staff commonly advise other students and potential witnesses to refuse to make any statements after the school has conducted its interview, effectively foreclosing the accused student's ability to collect and present evidence in rebuttal to the accusation.
Most typically the accused student takes no protective action during the investigative process, relying on a belief that the process is a formality and that the truth will quickly be discerned and the accusation dismissed on that basis. Student faith in the inherent integrity of the process, and the good will and honorable character of those implementing the process, can be a profound miscalculation.
The Administrative Adjudicative Process:
Most colleges and universities publish the applicable rules, standards, and procedures in a Student Handbook. The published rules and regulations ordinarily define the actions and conduct that are violations of “academic integrity," the “Honor Code," or other specific dishonest or improper conduct involving student performance of student assignments.
Every school's administrative process differs in some details, but the broad principles are common. Every school acknowledges the student's right to obtain legal counsel. That need almost always requires the student to request a delay in the proceedings which otherwise may go forward in a matter of just a few days.
Almost all schools prohibit the student's lawyer from participation in the hearing of the adjudicative panel; many schools will not allow the student's attorney even to attend as a silent witness. Some schools will allow a parent or other “support person" to attend. In all events, a student with the economic means should obtain counsel for assistance in defining the issues and identifying and collecting the evidence, and for critical advice as to navigating the process effectively.
The Student Court or similar Committee may be chartered only to determine the truth of the accusation or may also determine the appropriate penalty. The initial factual finding by the school is sometimes “appealable."
The fairness and “due process" provided by the school's formal rules will usually include a statement of the charges, an operating principle of presumed innocence until guilt is established by evidence, and an applicable standard of proof such as preponderance of the evidence. Rights to present witnesses, or to question or cross-examine witnesses, are uncommon. Hearsay evidence, even double and triple, is almost always allowed.
There is often a significant disparity in the procedural rights and opportunities provided by the school's rules and the procedures actually followed or allowed in the procedures pertaining to a specific accused student. Students are often shocked when the school does not follow the rules or honor the “mandatory" provisions of the process, but schools often freely revise and disregard the process on the ground that only “substantial" fairness is required. In fact, ad hoc and results-driven departures from the formal process are enabled by school's confidence in the traditional “hands-off" attitudes of the courts as to all matters of school governance and academic affairs.
The variations and extent of abuses of fundamental principles of fairness and good faith can be staggering and almost paralyzing to the affected student. But notwithstanding shock and a disabling sense of victimization, the student must rally and make the best possible effort at a successful defense. The stakes are simply too high to allow forbearance: the student's investment of time, effort, and indebtedness; the limited options for accomplishing educational or career goals by other paths; the degree of consequence and burden that limits the student's opportunities and options for years after the school administrative action.
But even in the face of these unacceptable consequences, it may be prudent to consider the limited options alternative to defending.
Alternatives to the Administrative Adjudication Process:
It is very uncommon for the college or university to engage in pre-hearing or preliminary settlement discussions or to make any stipulations for an agreed-upon outcome, such as a lesser accusation. But where the evidence can be expected to support the accusation, the student should consider engaging an attorney to attempt to negotiate a stipulated confidential withdrawal from the school in order to preserve eligibility for future educational opportunities at other schools and to minimize other consequences of the accusation and findings.
In the wake of a disciplinary charge and administrative action, students are sometimes emotionally wedded to an intention to sue the school and the complainant (accusing person). But options for successful recourse in the courts are very limited and, of course, very expensive. Courts have long honored the perceived wisdom of declining to second-guess universities and colleges in their management of academic affairs. This is, at least in part, self-protective as courts are committed to preventing legal actions in matters such as grades and disputes about satisfaction of degree requirements.
Over the past 20 years or so, there have been a handful of lawsuits against U.S. colleges and universities based on claims of unfair procedures and improper conclusions in adjudicating allegations of breaches of academic integrity. None of these cases have delivered to the litigants a fully satisfactory result. In all of those few cases where the student claimant obtained a judgment, the recovery was substantially less than the cost of the lawsuit. Still, claims of breach of contract, intentional or negligent infliction of emotional distress, defamation, and other torts may bear evaluation against the facts of a specific administrative process and action, and claims for deprivation of civil rights should be considered in matters involving public colleges (including community colleges) and universities.
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