From the issue dated December 17, 2004

http://chronicle.com/free/v51/i17/17a01601.htm

Judge or Judge Not?

For universities, professional societies, and academic journals, blurred responsibility and the threat of lawsuits are steep hurdles to disciplining plagiarists

By DAVID GLENN

In an ideal world, academe would respond to plagiarism allegations with a sure and swift machinery of justice.

Universities, journals, presses, and scholarly associations would cooperate in every investigation, freely sharing evidence and expertise. Proceedings would be kept strictly confidential unless and until a formal finding of guilt was made. Scholars' reputations would never be stained by unfounded gossip. Faculty plagiarists would be punished at least as severely as students who commit similar transgressions. Honest whistle-blowers would never face retaliation. And matters would never be dragged into the courts.

Once in a while, real-world plagiarism investigations do approach that ideal. Recently enacted federal regulations have prodded some large universities to adopt fairer and more-uniform policies on scholarly misconduct.

In general, however, plagiarism inquests are a dense thicket of tangled jurisdictions, misunderstandings, rumors, and lawsuits. The result is that people who believe they are victims of plagiarism are often left wondering where -- or whether -- to bring their complaints. Serial plagiarists occasionally drift serenely through their scholarly careers, even years after colleagues have begun to whisper about their work.

Most fundamentally, there is no basic agreement about who should take the lead in investigating plagiarism allegations. Some people insist that scholarly associations play a role -- in part, they say, because universities cannot be trusted to be disinterested when scrutinizing their own faculty. Others believe, equally strongly, that scholarly associations lack the resources and the clout to police their own members effectively. For just those reasons, the American Historical Association decided last year that it would no longer investigate charges of scholarly misconduct.

Hovering near the top of these jurisdictional quarrels is the fear of litigation. Independent journals and cash-poor scholarly associations fear sticking their necks out. And even colleges and universities, which have deeper pockets and in-house counsel, dread the headaches and publicity associated with lawsuits.

Veterans of plagiarism disputes insist that the fear of lawsuits is wildly overblown. Unwarranted anxieties have led to a disgraceful "you go first" timidity. If basic principles of fairness and confidentiality are followed, these reformers say, no one will successfully sue associations, universities, or academic presses for investigating plagiarism.

The key word, however, might be "successfully." Even though they rarely prevail, scholars can and do file lawsuits after being found guilty of plagiarism. And lawyers are not shy about finding grounds for such suits. In 1999 a materials scientist fired for plagiarism by the University of Dayton sued the institution on grounds of libel, slander, violation of contract, tortious interference with contract, tortious interference with a beneficial relationship, tortious interference with a prospective business relationship, malicious interference with a prospective employment relationship, promissory estoppel, violation of the right to privacy, intentional infliction of emotional distress, civil conspiracy, and violation of copyright.

None of the plaintiff's 12 claims held up in court. But defending against such lawsuits, however groundless they might be, takes time, money, and emotional energy. Dayton officials estimate that their plagiarism case cost the university $168,000 in outside legal fees and $30,000 in internal administrative time.

Critics say the result is a system that fails to take consistent and effective action against scholarly plagiarists.

"We've put in place certain policies and procedures to work a case up through the ranks," says Marcel C. LaFollette, an independent scholar in Washington and author of Stealing Into Print: Fraud, Plagiarism, and Misconduct in Scientific Publishing (University of California Press, 1992). "But we continue to do a very poor job of holding people accountable for their actions." Ms. LaFollette says that, for someone with a genuine accusation, it is still difficult to know where to turn.

Scared Silent

Suppose you are a scholar in Maine, and you discover a journal article by a historian at a Kansas liberal-arts college that contains several sentences stolen verbatim from your work. You contact the apparent perpetrator, seeking some kind of explanation, but get no reply. What should you do next?

Your first instinct might be to contact the editors of the journal in which your stolen words appear. At this stage, you are likely to get at least some satisfaction. In an informal Chronicle survey of editors affiliated with the Council of Editors of Learned Journals, all 12 respondents said they would remove such an article from electronic databases, and four said they would also publish a note of explanation in the journal's next issue. Most journals will also make it clear to a confirmed plagiarist that his submissions are no longer welcome.

Suppose, however, that you want the perpetrator to face more-serious consequences from his employer or his scholarly association. In that case, you will probably have to take further action yourself. In a survey of economics-journal editors conducted last year by Walter Enders and Gary A. Hoover of the University of Alabama at Tuscaloosa, only 47 percent of respondents said they would be likely to contact a plagiarist's department chair or dean.

"For someone like an editor or an associate editor or a peer reviewer," says Nereu F. (Ned) Kock, an associate professor of information systems at Texas A&M International University, "there is really very little to be gained, perhaps other than putting out of business someone who is unethical."

Now you are at the threshold of the most contentious debate in plagiarism enforcement: Should scholarly associations or universities take the lead? In our hypothetical case, the perpetrator is a historian -- and the American Historical Association is no longer in the business of punishing misconduct. William J. Cronon, a professor of history at the University of Wisconsin at Madison and a vice president of the association, says it made sense for the association to stop handling such cases. A majority of scholarly societies in the humanities and social sciences have made the same choice, he points out.

The most associations can do, Mr. Cronon says, is kick a perpetrator out of the organization. Other entities, by contrast, can impose meaningful sanctions. "Aside from those organizations like the American Psychological Association, which license practitioners, ... there really are no teeth in these professional organizations," he says.

Barbara F. Mishkin, a partner with Hogan & Hartson, a Washington law firm, agrees with Mr. Cronon that university committees should play the primary role in plagiarism investigations. Universities, she points out, generally have stronger powers, if need be, to force faculty members to turn over their drafts and notes. "It's not at all clear that a journal office or an association has the right to any of those data," she says. Universities also have more power to compel testimony: "Witnesses are typically required by their faculty bylaws to provide information and to participate in a proceeding like this," she says. In the 1999 case at Dayton, for example, the university formed its own investigative committee within weeks after discovering the apparent plagiarism. The perpetrator testified before the committee. He was fired three months later. No scholarly association was ever involved.

Mr. Kock, however, remains skeptical of relying exclusively on universities. In 1997, he says, he discovered that some of his own work had been plagiarized in a journal article. He says neither the journal editors nor the perpetrator's university conducted a formal investigation, although he asked both to do so. (According to Mr. Kock, the perpetrator -- whom he declines to name -- eventually left academe because of informal peer pressure from the national network of information-systems researchers.) Frustrated at the journal and university levels, Mr. Kock successfully pressured his own scholarly society, the Association for Information Systems, to establish a new ethics committee to investigate and adjudicate claims of misconduct.

"I don't see a university taking very strong action against an individual because of a plagiarism allegation," Mr. Kock says. "I know that some universities have done this in the past, but I think there are some barriers there, some obstacles." In particular, Mr. Kock and others say, when there are serious differences of power -- when the victim of plagiarism is a graduate student or junior faculty member, and the perpetrator is a beloved senior scholar at the same institution -- whistle-blowers might be too timid to file an in-house complaint.

That line of argument is mistaken, says Mr. Cronon. If you are too afraid to accuse a senior scholar before a dean, he says, you will probably be anxious about accusing him before a scholarly association. "I think it's actually naïve about power and risk to imagine that somehow that makes it easier," Mr. Cronon says.

Mark S. Frankel, the director of the scientific freedom, responsibility, and law program at the American Association for the Advancement of Science, has thought about associations' roles in misconduct cases for decades, "I have come to a profound conclusion: It depends," he quips. Associations should investigate misconduct cases, Mr. Frankel says, only if they have broad membership support and the resources to investigate and defend themselves in subsequent lawsuits.

Associations should not walk away from this task, Mr. Frankel says. Most scholarly societies, he points out, define their central mission as defending the public interest. "If you want to claim that position," he says, "then it seems incumbent on the society to make clear what the ethical standards of the discipline are."

Ms. LaFollette, the plagiarism scholar, believes that the historians' association is abandoning an important duty. "If the professional societies throw up their hands and fail to take up the responsibility of adjudicating cases," she says, "investigating them and helping to analyze what's happening, in a way that's sometimes freed from the partisan affiliations of the accused and the accuser, then who's going to?"

As for our hypothetical case, Ms. LaFollette says, why shouldn't an aggrieved scholar simultaneously contact the Kansas college, the journal editors, and the historians' association? "If our goal is integrity in research," she says, "then what's wrong with a redundant system? It shouldn't matter in what order you contact people. ... Certainly at the beginning of cases, when you're trying to shake the system to pay attention, people have sometimes had to have several avenues for complaint."

Legally Bound

In the eyes of certain critics, lawsuits are the reason for colleges' and other investigators' skittishness.

Drummond Rennie, a deputy editor of The Journal of the American Medical Association and a professor of medicine at the University of California at San Francisco, helped to uncover several notorious cases of research misconduct in the 1970s and 1980s. He argues that university lawyers are exceedingly cautious: "A lawyer is there to warn you that if you walk across Death Valley at midday in summer, you could catch cold. You could die of frostbite. And you'd better get that in writing, in case the sun is blotted out by a meteor or something."

But are lawsuits really as rare as all that? Consider a few cases from the past decade.

In September Roger Shepherd, a fine-arts professor at New School University's Parsons School of Design, left the institution after it was publicly revealed that his 2002 book, Structures of Our Time: 31 Buildings That Changed Modern Life (McGraw-Hill), contained several extended passages of verbatim plagiarism. (He told a Chronicle reporter at the time that the episode was "a tragedy, probably the worst thing I've ever done.") Six weeks later Mr. Shepherd sued the university, charging that he was wrongly terminated. Parsons has moved to dismiss the lawsuit but no action has been taken.

In 2001 two professors of mathematics at Columbia College Chicago won a $250,000 defamation judgment after asserting that two of their colleagues had falsely accused them of plagiarism. Although the college was not a party to the lawsuit, its insurance policy covered the cost of the award.

In 1994 Ithaca College conducted a formal investigation that found that Peter Klinge, a professor of communication, had plagiarized material in his 1983 book Evolution of Film Styles. The college demoted Mr. Klinge to associate professor and reduced his salary. Mr. Klinge sued, charging that the college had failed to abide by its official policies. The court allowed the suit to proceed because the college's faculty handbook (which New York, like most other states, treats as a de facto employment contract) did not say anything about the possibility of demotion as a punishment for misconduct. The college would have been within its rights to fire Mr. Klinge, the court said, because that prospect was spelled out in the handbook. Demotion, however, represented a violation of contract. (The college eventually prevailed at the appellate level.)

None of those lawsuits was or likely will be catastrophic for the institutions involved. And no faculty-plagiarism lawsuit has been nearly as convoluted or expensive as certain notorious cases involving other kinds of alleged misconduct -- falsification or fabrication of research data, for example. But all of these suits are serious nuisances, which may explain why universities tread carefully around plagiarism allegations.

Camille A. McWhirter, associate director of the office of research compliance at the University of South Florida, says universities are not at all timid about such lawsuits. "We would be totally ineffective if we worried about whether we were going to get sued every time we take an action," Ms. McWhirter says. "Some of these cases of faculty misconduct demand a response by the university. We have very good internal investigations. We have complete reports, a grievance process, appeal mechanisms." Ms. McWhirter also points out that whenever federal funds are involved, universities are required to conduct an inquiry if they receive an allegation of misconduct. And as federal agencies strengthen their guidelines -- a new governmentwide definition of plagiarism was adopted in 2000, and regulations putting that change into place are now being drawn up -- more scholarship will be brought under the regulatory umbrella. Universities might be required under federal law, for example, to conduct formal inquiries when historians supported by the National Endowment for the Humanities are accused of plagiarism.

Those federal definitions and regulations might (and should) also shape the cultures of smaller colleges whose faculty members rarely receive federal grants, says Steven Olswang, interim chancellor of the University of Washington at Tacoma. "Every institution ought to adopt a common definition of plagiarism," he says.

Mr. Olswang believes that most institutions' systems are improving, but he shares the anxiety that plagiarism allegations too often hover in the air without a proper investigation.

"Institutions," Mr. Olswang continues, "don't always take the strong step of saying, 'We own this.' ... Institutions are very cognizant of the costs of getting involved in these things."

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Volume 51, Issue 17, Page A16

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