In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

Part one: Turnitin and the perils of entering the evil house of cheat at cheathouse.com

Abstract

Plagiarism is one of the most serious offences in the academic world. It has occurred as long as there have been teachers and students, but the recent growth of the Internet has made the problem much worse. Recent studies indicate that approximately 30% of all students may be plagiarising on every written assignment they complete. The “information technology revolution” is almost always presented as having cataclysmic consequences for education. In post‐secondary circles, perhaps the most commonly apprehended cataclysm is “Internet plagiarism”. Academics at all British universities and colleges can now test students’ work for cheating using the anti‐plagiarism program Turnitin. The program, run by the Joint Information Systems Committee and thought to be the first national system of its kind, offers free advice and a plagiarism detection service to all further education institutions in the UK. This article will try to: first, define exactly what plagiarism is; second, give examples and reports on samples of the new plagiarism detection software; and finally suggest strategies that lecturers can use before turning to the new software.     

Paying the piper

The results of our assessments, apart from providing us with an assurance of the quality of our own provision, make representations to employers and other organisations that rely on our results. If universities are to continue to use essay-based coursework as a basis of assessment, we have to have confidence in it. The ease with which students can compile essays from Internet-based sources is a known and probably growing problem. Knowing of its existence, as professionals we are surely under an obligation to employ the best available techniques to counter it. In any event, it would send an unfortunate message to the world if, being aware of plagiarism possibilities, we have methods to counter them but choose not to use them. The only reasonable interpretation would be that we were condoning it. In principle, at least, the Internet can be used to conquer plagiarism, at least as successfully as, up to now, it has facilitated it. But using the Internet to fight a problem exacerbated by the Internet raises issues of both a legal and pedagogical nature. It is these issues which are examined in this article.     

Vicarious Liability and the Private University Student Press

The lack of a First Amendment prohibition against administrative interference with the student press leaves a private university open to legal liability from the content of student publications through the doctrine of vicarious liability. To insulate a private university from such a lawsuit, commentators have encouraged the adoption of formal policy statements that give student journalists the right to make all content decisions. But given the trend in vicarious liability law, such policy statements are unlikely to protect a private university from liability for torts committed by its dependent student press. Instead, decisions of the Supreme Court of the United States suggest, and this article argues, that the adoption of policies and procedures designed to prevent and correct foreseeable misconduct associated with the dissemination of student-produced content will help protect a private university from vicarious liability arising from the operation of its student press.     

论侦查讯问中的暗示方法

暗示法在侦查讯问中的运用有助于讯问目的的实现。常见的暗示方法有语言暗示、行为暗示、情境暗示。从心理与法律的角度,侦查讯问中运用暗示法有其必要性和可能性。暗示法虽然没有被我国及其它国家法律明文禁止,但其一方面有隐瞒真实的一面,即隐瞒讯问意图及掌握证据的真实情况,与欺骗的方法有相似之处;另一方面具有诱导被暗示者按照侦查人员的推测与想象回答问题的功能,与引诱方法有相似之处。如果暗示法运用不当,极易产生欺骗、引诱之嫌疑。因此,正确区分暗示与欺骗、暗示与引诱,解决暗示法的合法性十分必要。     

Some models of academic corruption

The paper notes that while much work has been done in the past on corruption in government and business, relatively little attention has been devoted to corruption in academic institutions. The principal forms of academic corruption are plagiarism and various forms of cheating, research fraud and financial fraud. Two simple mathematical models are proposed for exploring the motivations for (1) plagiarism, which is essentially a solitary crime, and (2) bribery. The responsiveness of the demand for the first of these, and the demand for and supply of the second to changes in underlying parameters are explored.     

诉讼欺诈的侵权责任

诉讼欺诈的侵权责任问题已引起学界的关注,研究的焦点在于诉讼欺诈的界定以及侵权责任的法律构成等问题。诉讼欺诈的侵权责任在构成上的独特性为,行为人通过取得法院的生效判决书或调解书,侵害案外第三人的合法权利。为规制诉讼欺诈行为,在立法上应赋予案外第三人一种申请撤销已生效判决书或调解书的权利。     

The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change

Early neoinstitutional theory tended to assume institutional reproduction, while recent accounts privilege situations in which alternative models from outside an organizational environment or delegitimizing criticism from within precipitate institutional change. We know little about institutions that persist despite such change conditions. Recent advances in sociological field theory suggest that interfield ties contribute to institutional change but under‐theorize how such ties may reinforce institutions. Extending both approaches, I incorporate self‐reinforcing mechanisms from path‐dependence scholarship. I elucidate my framework by analyzing the student‐edited, student‐reviewed law review. Despite its anomalous position relative to the dominant peer‐reviewed journal model of other disciplines, and despite sustained criticisms from those who publish in them, the law review remains a bedrock institution of law schools and legal scholarship. I combine qualitative historical analyses of legal scholarship and law schools with quantitative analyses of law‐review structures and field contestation. The analysis covers law review's entire historical trajectory—its emergence, its institutionalization and coherence of a field around it, and its current state as a contested but persistent institution. I argue that self‐reinforcing mechanisms evident in law review's ties to related fields‐legal practice, law schools, the university, and legal periodicals—both enabled its emergence and have buffered it against change.     

Permissible plagiarism? Navigating normative expectations in the pre- and post-admission landscape

Plagiarism in the context of the law is a highly nuanced and complex concept, involving consideration of academic integrity and disciplinary rules and assessments of intent, which colour the responses of both universities and courts when confronted by the misuse of others’ words and ideas without appropriate referencing. Within academia, plagiarism is treated as ‘a capital offence’. In the context of admission as a lawyer, professional admissions boards in Australia use findings of major plagiarism at university as a reason for denying or delaying admission to practice on two grounds: firstly, if it amounts to cheating per se, as being indicative of a character flaw inconsistent with the character requirements of officers of the court; and secondly on the related basis that it is (or is assumed to be) a reliable predictor of future professional misconduct. Given this, Australian universities must educate students about academic integrity and referencing (particularly in the digital age, where sources and opportunities for misconduct are escalating), provide law students with training and practice in appropriate use of others’ material, and provide relevant information to students about the implications of findings of misconduct being made against them. This is important because, while there is a widespread perception that plagiarism ceases to be a consideration after admission as a lawyer, this is not supported by the decided cases.     

Plagiarism litigation trends in the USA and Australia

In this article we explore the increasing complexity of plagiarism litigation in the USA and Australia. Plagiarism has always been a serious academic issue and academic staff and students have wrestled with its definition and appropriate penalties for some time. However, the advent of the Internet and more freely accessible information resources, along with busy lives and pressures to succeed, may be leading to more frequent incidents of plagiarism. Alternatively, the same information resources and software packages may mean that we are now more able to identify when plagiarism occurs. The following discussion explores not just the traditional issues that have arisen with respect to plagiarism, but also the extended contexts in which plagiarism discussion is taking place in courtrooms, not university staffrooms. We consider issues in common in the two nations, as well as the wider academic community, and distinctive areas of litigation that have arisen in the USA and Australia.     

Legal liability of universities for students

This article involves analysis of the nature of the legal relationship between universities and their students. The development of a general perception that students are consumers of services provided by the university or their clients responsible for paying their own fees has led to an increased likelihood of students seeking legal redress for inadequacies in their educational experience. Recognition of the contractual basis of the arrangement and the resultant legal remedy for breach of the contractual terms has provided the means by which rights can be enforced. However, there are also a number of areas of law (under statute and the common law) which can be utilised for this purpose. These areas are summarised and the difficulties associated with their utilisation identified. The need to reform the system of student complaints in universities and the legal framework for enforcing their legal rights is discussed and recommendations put forward.     

论高教行政案件中的判断余地之司法审查

法学对那些模糊而容易产生歧义的法律用语称为"不确定法律概念"。它们经常出现,并为适法者在具体个案中将其内涵加以明确。如果与他的专业知识联系起来,便可以将不确定法律概念分为涉及判断余地和不涉及判断余地两部分。前者应得到司法的尊重,后者应进行高密度的审查。在高教行政案件中也如此,另外,如果这类案件出现作答余地的问题,判断余地应该为其让路。     

"良法"治校与大学生合法权利保障--高校校规之上位法违宪检讨

高校校规是高等学校自主管理权的重要外化形式,其内容关乎大学生切身利益的方方面面,合法、合宪是法治对之所提的基本要求.然而实践表明,高校校规中不乏与大学生合法权利相背离的条款,其中某些规定甚至已悄无声息地侵入到大学生的宪法权利领域.对此,我们除了审视校规本身的瑕疵与缺陷外,更应当对作为校规制定依据的有关教育的法律、法规、规章等上位法规范进行全面的合法性与合宪性检讨,并以之为突破口寻求权利救济的最优机制,实现"良法"治校与大学生权利保障的和谐互动.     

Advancing institutional anomie theory: a microlevel examination connecting culture, institutions, and deviance

Institutional anomie theory (IAT) contends that crime can be explained by an examination of American society, particularly the exaggerated emphasis on economic success inherent in American culture, which has created a "cheating orientation" that permeates structural institutions, including academia. Consistent with its macrosocial perspective, previous tests of IAT have examined IAT variables at the structural level only. The current study tests the robustness of IAT by operationalizing IAT variables at the individual level and looking at a minor form of deviance, student cheating. The author also examines the role statistical modeling has in testing the theory at the microlevel. Undergraduates, 122 American born and 48 international, were surveyed about their cheating behaviors and adherence to economic goal orientations. Results related to the hypothesis that American students, relative to foreign-born students, will have an increased adherence to economic goal orientations that increase cheating behaviors are presented, as are suggestions for future studies.     

Low self-control, rational choice, and student test cheating

Using scenario-based survey data from a sample of 330 university students, this study examined the effects of low self-control, rational choice variables, and control measures on intentions to cheat on a college exam. A moderate bivariate association was observed between low self-control and cheating intentions. However, a series of multivariate regression equations showed that low selfcontrol did not have a significant effect on intentions to cheat once the influence of other variables, especially anticipated shame, were controlled. Furthermore, findings supported the rational choice framework in explaining student decisions to cheat. Implications regarding these findings are discussed.     

Advancing justice interests and human rights of vulnerable groups through clinical legal education

Access to justice rights of vulnerable groups in the Maldives is significantly affected due to lack of information, awareness, accessibility, and legal representation. The provision of State-funded legal aid is only available in serious criminal cases, and free legal services provided by individual lawyers and civil society organisations are limited and scattered. Out of 20, only a handful of atolls in the Maldives have resident lawyers offering legal services. Thus, as a country with over 200 inhabited islands, key vulnerable groups such as women and children face serious challenges in attaining legal services and access to the system. This article emphasises the broader objectives of legal education and argues that by pursuing social justice goals and advancing the human rights of vulnerable groups in the Maldives, university law clinics can benefit legal education and the society at large.

     

高校学生管理法制化刍议

学生管理法制化是法治社会高校管理现代化的必然选择。这就要求从健全立法体系、规范管理行为、强化司法监督等方面做好学生管理法制化建设。然而,当前的学生管理还存在着法律观念淡漠、法律关系不明确、制约机制软弱等问题,不但有悖于法制精神,并且严重影响学生受教育权以及其他合法权利的实现。因此,必须确立学生的权利主体地位,建立尊重学生权益的学生管理机制。     

高校毕业生就业立法歧视研究

中国高等学校实施自主择业的毕业生就业制度的几年中,恰逢国有企业职工下岗与再就业工程,国家机关精简行政编制和事业单位裁员的人事制度改革.各地为了缓解应届高等院校毕业生进入本地就业市场的压力,制定规范性文件设置毕业院校、学习专业、英语和计算机合格证书和入学前生源地等条件的方式来限制这部分就业群体.然而,这些限制措施与宪法劳动权和劳动法规定的劳动者享有平等就业和自由选择职业权利相抵触.分析和研究这些地方规范性文件,有助于我们认识目前劳动就业中普遍存在的歧视劳动者的现象,并从立法、执法和司法上加以解决与完善.     

集资诈骗罪的司法困境与罪群立法完善

集资诈骗罪一方面被认定为特殊诈骗罪,与诈骗罪表现为一般与特殊的关系,另一方面又被当作“加重型”非法吸收公众存款罪。因此在刑事司法过程中出现了“骗”与“被骗”的构成要件缺失却依然构成集资诈骗罪、非法吸收公众存款罪中的“欺骗”与集资诈骗罪中的“诈骗”混淆不清、两罪以“非法占有目的”为区分标准的主观化趋势的问题,从而导致“非法占有目的”在被扩大化的同时又被弱化,进而造成集资诈骗罪被矮化、限缩。应从金融秩序法益的立场,回归集资诈骗罪的金融犯罪属性,重塑诈骗罪与集资诈骗罪的关系,明确“欺骗”“诈骗”的同质性,增设“骗取集资款罪”,调整非法吸收公众存款罪的规制范围,构建体系化的集资诈骗罪罪名群,化解集资诈骗罪刑罚供应过度与不足并存的尴尬。