1. 1 TACKLING PLAGIARISM AND ACADEMIC MISCONDUCT ‘GETTING THE BALANCE RIGHT’ ROB BEHRENS INDEPENDENT ADJUDICATOR FOR HIGHER EDUCATION robert.behrens@oiahe.org.uk Woburn House Conference Centre, London November 19 2008 “And if I have often omitted to acknowledge the source of my arguments, it is for the double reason that in most cases I have forgotten it and that, since there are no ‘authorities’ in philosophy, references of this kind would promote a groundless trust in books and a false attitude of mind.” Michael Oakeshott, Experience and its Modes, 1933.

2. 2 Getting the Balance Right OIA Mandate and disposition Plagiarism Cases brought to OIA since 2005 Features of Not Justified Cases Features of Justified or Justified in Part Cases Emerging Issues for discussion

3. 3 Mandate and disposition Under 2004 Higher Education Act, wide remit to examine ‘acts and omissions of HEIs and the making of recommendations’ [Rules,1.] But OIA engagement only when HEI procedures exhausted [HE Act 2004,Sch.2, 5.13, 3(2)(b)] ; and No remit to examine ‘Academic Judgments’, a term ultimately for interpretation by the Courts. In OIA view, it is not the same as ‘any judgment made by an academic’. The fairness of procedures, facts, misrepresentation, the manner of communication, bias, an opinion expressed outside the area of competence, the way evidence is considered and maladministration in relation to these matters are all issues where we have advised universities that academic judgment is not involved. Decisions on whether HEI has abided by own procedures or acted reasonably ‘in all the circumstances’ [Rules, 7.4.4]. Disposition. Evidence-based review, using regulatory principles to be fair, proportionate and not slavishly bureaucratic in approach. Appreciation for difficult calls HEIs have to make.

4. 4 OIA Plagiarism cases since 2005 2062 cases reviewed and closed under Scheme 68 Plagiarism cases (3.3 per cent of all cases) 4 cases Justified (5.8 per cent of Plagiarism cases) 51 cases Not Justified (75 per cent) 8 cases Justified in Part (11.76 per cent) 5 cases withdrawn or settled (7.3 per cent)

5. 5 OIA Plagiarism cases since 2005

6. 6 Not Justified Widespread complainant allegations of: Procedural irregularities [eg at variance from the usual, prescribed steps]; Unreasonable, harsh or disproportionate penalties (including expulsion, charging fees for re-submission of plagiarised coursework); Comprehensive information about plagiarism not available in handbooks, literature or on-line Appeal did not take into account either new information or exceptional circumstances

7. 7 Justified or Partially Justified (1) CASE STUDY 1. Finding of Plagiarism in dissertation of student sponsored by NHS Trust. OIA recommended appointment of Appeal Committee with access to record of hearing. And review of procedures of Appeals committees Premature disclosure. HEI wrote to Trust announcing charge before hearing took place. No response when complainant objected. Burden of Proof. At Misconduct hearing student required to ‘prove’ innocence when the burden of proof was on the HEI. Failure of due process. In deciding whether to allow Appeal HEI did not consider record of the Misconduct hearing. Delay. 3 month delay in HEI investigation. Then Appeal request not responded to for 5 months (regs state ‘normal’ period of 28 days).

8. 8 Justified or Partially Justified (2) CASE STUDY 2 M.Sc student given zero for coursework following Academic Misconduct Panel. Student appealed this was disproportionate given he had had no intention to gain improper advantage. Appeal Panel found no irregularity in the process, and student appealed to Academic Registrar. OIA found the decision and penalty not unreasonable. Financial compensation for poor handling and delay. But: Inappropriate Panel Membership. Overlap of staff members of Misconduct and Appeal Panels was contravention of natural justice. Inappropriate Behaviour of Appeal Panel Chair and members. HEI accepted Chair’s behaviour could be perceived as ‘dismissive, sarcastic and mocking’. Delay. No apology for delay in the reconstitution of Appeal Panel.

9. 9 Justified or Partially Justified (3) CASE STUDY 3. HEI found student embellished answers when asked to record his ‘illegible’ script. Exam Board reduced mark to zero which lowered his degree classification, and recorded ‘dishonesty’ on his file. Appeal body recommended reconsideration of zero mark, degree award, and dishonesty marking notwithstanding the serious offence. Only the dishonesty marking was changed. OIA recommended reconsideration by Exam Board to effect a more proportionate penalty, financial compensation for irregularities and creation of relevant rules. Procedural Errors. Student’s friend not allowed to speak at hearing. Lack of Notice. Student required to cross country to dictate script on the same day. No written notice, only a 45 minute warning to attend subsequent hearing. Delay. Process took 15 months to complete. Disproportionate Penalty in light of absence of rules for dictating scripts, no invigilation or treatment of occasion as being under exam conditions.

10. 10 Emerging Issues for discussion Variety of definitions of Plagiarism. Variable practice within individual HEIs. Issue of ‘intent’. Burden of Proof – ‘on the balance of probabilities’ (a low standard for a serious charge) or ‘beyond reasonable doubt’ ? Proportionality. HEIs very often justified to find that failure to reference properly is academic misconduct. But the student’s intention and extent of the affected material should be taken into account when determining the penalty. Dealing with expectations: the international dimension, the availability of Internet sources. Resisting moral panic. “And if I have often omitted to acknowledge the source of my arguments, it is for the …reason that in most cases I have forgotten it …”