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October 3, 2012

Harvard Botches a 'Cheating' Scandal

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By Harvey Silverglate and Zachary Bloom

At first blush, the ongoing cheating scandal at Harvard College appears to raise serious questions about academic integrity at that fabled institution. If the allegations that 125 students inappropriately shared notes and answers for a take-home exam in violation of the exam's rules prove true, the result will be a massive blot on Harvard's near-perfectly manicured public  image--especially now that top athletes have been implicated.

But let's remember that because of the course's confusing rules and guidelines concerning collaboration, no one, likely not even the students themselves, can say right now whether their conduct was illicit. Worse yet, we may never know the truth, much less have a just verdict on the propriety of the students' actions, now that the case is securely in the hands of the spooks haunting Harvard's notorious Administrative Board.

So Sure He Was Guilty

The sad truth is that Harvard's administrators, who have virtually total control of the adjudicative process, since students are not allowed representation on the Board (so much for "diversity" when it really counts!), are notoriously poor at evaluating evidence of innocence or guilt. The troubling case of John McCoy, a former client of co-author Harvey Silverglate, is an object lesson in why the truth about these latest allegations of cheating will likely never come out.

By the time he was in his mid-thirties, John McCoy, had spent much of his adult life working at a hedge fund. But he had never finished his undergraduate degree, so he temporarily moved to Cambridge and enrolled at the Harvard Extension School to pursue a bachelor's degree in Economics. From 2005 to 2008, he took classes full-time, including summers, and was set to graduate in June of 2008.

In mid-April of his final semester, McCoy handed in a take-home test for his pre-calculus course. The instructions on the front page expressly forbade students to receive help from anyone, but allowed them to use their textbook, any notes they took in class, and a calculator. McCoy took the test at home, by himself at the kitchen table, the night before it was due and handed it in during class the next day.

Down the Rabbit Hole

A week later, on April 30, the pre-calculus professor returned the graded exams to everyone except McCoy and another student. After class, the professor confronted McCoy and the other student, telling them that similarities in the errors on their exams suggested that they had cheated by working together. Additionally, the professor reported the alleged cheating to the Extension School's Administrative Board--a parallel entity to Harvard College's Administrative Board, albeit one with apparently no written rules or procedures of its own. Thus began McCoy's long journey down the rabbit hole of Harvard's student disciplinary system.

The next day, administrators informed McCoy via email that he had just four days to complete a written statement for the board. He complied, writing a letter protesting his innocence. In addition, he provided informal responses via email to several questions administrators had asked about his prior collaboration with the other student accused of cheating. He told them that they had worked together on a couple of problem sets and occasionally shared notes after one of them had missed class, but did not collaborate on the exam.

                                                                         Your Confession, Please

On May 9, the Administrative Board informed McCoy of its decision. Despite the lack of a hearing in which McCoy could have testified and presented evidence in his favor, and despite the lack of any real evidence of wrongdoing on McCoy's part in the written record, the Ad Board declared him guilty, meting out a punishment that required him to withdraw from his pre-calculus class, withdraw from the Extension School for one year, and suffer a notation on his transcript that he had been required to withdraw. Worse yet, administrators informed McCoy that he would have to petition for readmission before completing his degree--a contravention of the Extension School's open enrollment policy. And, in a particularly Orwellian twist, the administrators informed McCoy that he would be readmitted only on the condition that he confess, in writing, to having cheated on the exam.

The next week, McCoy retained Silverglate and his former law firm in an attempt to get this patently unfair verdict reversed, or at least reexamined. After the lawyers wrote a letter to Harvard's Office of General Counsel urging them to give McCoy some measure of fair process, McCoy was invited at long last to a hearing in which he could formally and personally present new evidence, including an affidavit signed by his wife stating that he had completed the exam alone at home, and the results of a polygraph test indicating that McCoy was not lying when he said he didn't cheat.

                                                                        'Good Luck Suing Harvard'

It would be an exaggeration to call the administrators' response a fair or even rational one: Not only did they express their shock at McCoy's refusal to confess, but one administrator went so far as to taunt McCoy, saying, "Good luck suing Harvard." The message of the meeting was clear: the administrators had made up their minds. It seemed that John McCoy would have to live the rest of his life with an undeserved blot on his record, or he would have to sue, a daunting task when a student goes up against a private university that is not bound by constitutional requirements of fairness and "due process of law."

But later on the day of the hearing, he received a call from the other student accused of cheating. She confessed to having copied answers off his exam after rummaging through textbooks and papers that he had left out on his table at a cafe while he stepped outside to make a phone call.

The other student confessed to the administrators about what she had done. McCoy's lawyers immediately set about writing another letter to the Office of General Counsel, this time urging them to reverse McCoy's conviction and punishment by the kangaroo court of administrators that had been so sure of his guilt. The next day, one day before graduation, McCoy received an email from an administrator (the same administrator who had mocked his lawyering up to sue Harvard) informing him that while his official graduation would be delayed until November, he would be entitled to participate in the next day's commencement ceremonies as planned. The administrator then unctuously ended his email by saying: "I am sorry that this matter has prevented your official graduation tomorrow, but I am relieved, as I am sure you are, that the disciplinary matter has been resolved"--hardly the statement of contrition one would expect from someone who had  bungled the disciplinary proceedings at every step.

Unfortunately, the happy (and just) result received at the last moment by McCoy is not typical of cases that go before Harvard College's Administrative Board; the nature and quality of the "hearing" is, however, quite typical. Hearings held at Harvard College's Administrative Board are only slightly more reasonable than the Extension School's almost comic tribunal. The unapologetic hauteur displayed by the administrators throughout McCoy's disciplinary process is not unique, but pervades the entire disciplinary culture throughout the university.

Why Such Secrecy in the System?

More troubling is the fact that the Ad Board's oppressive secrecy rules prevent most students who have been similarly railroaded from coming forward publicly to protest their unfair and often illogical treatment. And despite reports of a much-delayed public database of Ad Board cases, the reality is that until the disciplinary system is overhauled entirely--to include more transparency, a student presence, the accused's right to confront witnesses, rational weighing of evidence, rules worthy of a serious fact-finding process, and guaranteed meaningful hearings before the administrators have made up their minds--the Ad Board system will remain incapable of separating fact from fiction and of reining in administrators' unfettered personal proclivities. (Indeed, when a critic of the system makes an accusation that it is a "kangaroo court," the invariable reply by college administrators and other apologists is that the Ad Board is not meant to replicate a legal tribunal, but is, instead, an "educational body." One wonders what kind of "education" accused students are getting from a system where guilt is determined on the basis of such evidence as would have doomed McCoy before the intervention of the confession by the guilty student.)

Most importantly, secrecy in the system should be abolished, because in Harvard's Administrative Board, as in justice systems everywhere, secrecy is there not really for the protection of the student, but rather for the protection of the institution's reputation from public knowledge of how the sausages are really made in the crimson sausage factory. There is a reason why the Sixth Amendment to the U.S. Constitution provides that "the accused shall enjoy the right to a...public trial, by an impartial jury..." after being "informed of the nature and cause of the accusation," and the right "to be confronted with the witnesses against him." Harvard may not be bound by the Constitution, but the Ad Board administrators stand to learn a few things from its text.

All of this is why we must watch with a skeptical eye the unfolding events in the Harvard cheating scandal. Some of the students may well have copied one another's answers wholesale and deserve to be punished for cheating. More students probably collaborated in ways that the course's vague rules made to seem kosher. Some of them almost certainly didn't do anything wrong, and are just caught up in a wave of hysteria. But we shouldn't expect much in the way of honest and rational fact-finding from the denizens of Harvard's Administrative Board. Once a case is in their hands, evidence too often becomes irrelevant, and truth inconsequential.

Harvey Silverglate is a Boston civil liberties and criminal defense lawyer and writer, and Chairman of the Board of The Foundation for Individual Rights in Education. Zachary Bloom is currently Silverglate's paralegal and research assistant.



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