From the issue dated December 17, 2004
Judge or Judge Not?
For universities, professional societies, and academic journals,
blurred responsibility and the threat of lawsuits are steep hurdles to
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
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
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
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.
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
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
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
"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
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
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."
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
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."
Section: Special Report
Volume 51, Issue 17, Page A16
Return to the Plagiarism
Special Report page.