Plagiarism Accusations & International Students, A Growing Injustice

Whilst all my cases are different, certain sets of facts repeat themselves. One of the more worrying trends I’ve noticed lately involves plagiarism accusations against overseas students, particularly those whose first language is not English. It goes something like this:

– A student submits a piece of coursework.

– A couple of weeks later, a lecturer or tutor, “invites” him/her to attend a meeting in order to “discuss concerns about misconduct” or something similarly vague.

– Once at the meeting, the student is ambushed and grilled by university staff, who accuse him/her of having submitted work which is “not his/her own.” Given the stressful situation and the additional difficulty of having to communicate in their second or third language, the student understandably struggles to answer questions about the content of the coursework and the way in which it has been produced.

– In the days that follow, the student is notified that he/she has been found guilty of an academic offence. Importantly, this finding is based not on a high similarity index on Turnitin or any objective evidence such as emails or statements, but on the “academic judgement” of the lecturer or tutor concerned, whose opinion is that the student could not have and did not produce the coursework.

– Usually, there is a right of appeal. But with members of the appeal panel reluctant to go against the opinion of the tutor/lecturer, the chances of success are slim.

A finding of academic misconduct has serious repercussions. Even if the student avoids expulsion from the course (which in turn is likely to lead to them having to leave the UK), the module in question will usually be scored zero or subject to a very low capped mark, making it extremely difficult to obtain a respectable overall degree classification.

It is also likely to be clear from the student’s official transcript that there has been a finding of academic misconduct, which can jeopardise future academic prospects, and even employment. And let’s not forget that with hiked up tuition fees and high living costs, overseas students routinely find themselves investing tens of thousands of pounds in their education, which will often have gone to waste in the event of a plagiarism finding.

Academic Misconduct allegations based on academic judgement are problematic for all sorts of reasons. Quite often the academic in question will be a junior member of staff with only a few years’ teaching experience and typically, they will have had relatively little contact with the student whom they are accusing (in spite of the high tuition fees) and will be making a decision based on a very superficial knowledge of their academic profile, including any special educational needs, disabilities or medical conditions.

It is easy to overlook the fact that a student’s written English will often be a good deal better than their spoken, particularly where a lot of effort has gone into producing written coursework and software has been used to check spelling, grammar and punctuation.

Of most concern, however, is the enormous power that the academic misconduct process puts in the hands of university staff and the associated potential for arbitrariness. Prejudice, both conscious and subconscious, may well end up playing a part, and, with various national newspapers reporting that sexual relationships between teaching staff and students remain common, it is surely wrong for academics to hold such power over students.

As for the legal position, judges have recognised that “the question of whether plagiarism has been committed often (and perhaps usually) will require an exercise of academic judgment” and that matters of academic judgement are non-justiciable i.e. they cannot be interfered with by the courts. To this extent, case law supports universities.

However, the above is not the whole story, for case law also states that while a decision about plagiarism will often require academic judgement, ‘it need not necessarily do so’ and that factual evidence may also have a role to play. (An example would be where a student is accused of buying an essay online: either the essay has been bought or it has not, making this a factual issue to be determined in accordance with evidence.)

Equally, the courts have found that, where an exercise of academic judgment is wholly unreasonable or is tainted by bias (the legal definition of which includes risk of bias) or bad faith, or it will not be afforded the usual deference and protection.

It should also be remembered that universities are under a duty to act fairly and follow the rules of natural justice, which includes ensuring that the procedures followed are fair and that any student accused of academic misconduct is given a proper chance to respond.

With the above in mind, any student who finds themselves invited to a meeting to discuss concerns about plagiarism would be advised to do as follows:

– Prior to any meeting, insist on details of: what is being alleged; the reasons for the allegation, including any supporting evidence or paperwork; and what will happen at the meeting. Point out that the rules of natural justice require this.

– Consider producing a detailed statement responding to the allegations and explaining how the work was produced, if possible with supporting evidence such as drafts, sources etc. Point out that the question of whether a piece of work is plagiarised is ultimately a factual one: either the student wrote it or they did not and where the evidence suggests he or she did the accusation must be dismissed.

– Be prepared to question the member of staff making the allegation, including about how well he or she actually knows the student and their academic abilities.

– In more complex cases, insist on being allowed to bring a legal representative (regardless of what the University’s procedures say) on the basis that, with the amount at stake, there is a right to have a lawyer present under Article 6 of the European Convention on Human Rights. (I shall be considering this issue on more detail in a future article to be published this autumn).

More generally, student unions need to be campaigning for fairer policies and procedures on plagiarism. Amongst other things, such policies and procedures should:

– require any allegations of plagiarism to be fully particularised and given to the student in advance of any meeting or panel hearing;

– state that the student has the right to legal representation from the outset;

– provide a prescriptive definition of plagiarism and list the factors that will be relevant in deciding whether an offence has been committed;

– record that the question of whether a piece of work is a student’s own is ultimately a factual one and that as much weight, if not more, needs to be attached to any factual evidence – including the student’s own account of how the piece of work was produced – as to the opinion of any academic who distrusts the student; and

– be expressly incorporated into the contract between student and university.

Robin Jacobs
Barrister

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