Universities are wrongly interpreting student publishing as 'contract cheating'

Posted on Aug 10, 2019

When Academic Integrity Policies cross the line

In an attempt to penalise students that cheat by getting their assignments written for them, many universities have interpreted their misconduct policies to prohibit student publishing altogether. This can be seen as a ‘catch all’ approach where broad university policies are being interpreted in a way that not only restricts contract cheating but also prohibits legitimate learning practices such as publishing past work and past research, labelling it all as ‘contract cheating’.

It is entirely reasonable to expect that universities should have the ability to restrict publishing of answers or work to prevent collusion or plagiarism whilst they are being assessed, however universities are also enforcing these restrictions even after a subject is complete. We have seen an unreasonable application of policy where students are told they cannot publish work at any point in time under the guise of “providing an unfair advantage to other students”. 

Examples of broad university policies that are being interpreted incorrectly

La Trobe University Academic Integrity Policy:

Cheating, plagiarism or any other conduct engaged in by a student with a view to gaining for himself, herself or another person an unfair or unjustified advantage in an examination or assessment, or in relation to or for a formal examination or assessment, whether such advantage occurs or not.

QUT Academic Integrity Policy:

Collusion involves unauthorised collaboration on assessment items with any other person/s. Collusion includes:

(a.)working with others to produce an assessment item where such collaboration is not specifically authorised in the assessment requirements (b.)sharing completed answers to summative assessment items, where it is reasonable to expect that the material will be submitted for assessment by others (c.)sharing detailed examples of work related to assessment items, where it is reasonable to expect that the material will be submitted for assessment by others

The issue with these policies

Whilst these policies seem appropriate when read in the context of students completing an exam or assessment in a current semester, these policies can be interpreted quite broadly. When interpreted by individuals that wish to prohibit student publishing, it can be suggested that that students who make any work they create at university public may somehow give other future students an “unfair advantage”.

A conventional interpretation of the phrases ‘gaining an unfair advantage’ and ‘collusion’ brings to mind situations such as a student writing another student’s assignment or a student somehow getting the answers to a future exam, however this is not as clear cut as it may seem. An unfair advantage can be interpreted in a wide variety of ways, as was evidenced in the debate on introducing legislation to prohibit contract cheating in the UK.

“What is an “unfair advantage”? On one view, a student who is able to afford a tutor when others cannot obtains an unfair advantage. That is surely not what this amendment is trying to catch. But can we be sure that it does not, and where do we draw the line instead? These are not things that can, or should, be rushed when the result is a criminal record.”

- Baroness Goldie, UK House of Lords Hansard, 25th of January 2017

At its highest, what needs to be considered when reading these poilicies, is that interpreting clauses which prohibit an unfair advantage must also be read in conjunction with what is considered legal or acceptable in society. Using broad catch-all policies allow university discipline committees broad powers to rule inconsistently and without regard for the rights of students or without concern for justice as a whole.

Where university policies do not consider the rights granted to students under the law

Legislation is essentially hierarchical in nature as any given piece of legislation derives its legal force from a hierarchically superior piece of legislation. For present purposes, this hierarchy can be thought of in the following terms:

  1. Acts of Parliament (Copyright Act);

  2. University Statutes (subordinate to Acts);

  3. University Regulations (subordinate to Acts and Statutes);

  4. University Policies (Academic Misconduct Policy)

Of most concern is that universities have interpreted their misconduct policies in a way which is inconsistent with IP policies (that grant students ownership to their work) and the Copyright Act (that affords students the right to publish this work and earn money from it).

Subordinate legislation must always be interpreted consistently with the legislation under which it was made and this means it must not be interpreted in a way which alters the scope or objectives of the superior legislation. If a policy is inconsistent with an Act, Statute or set of Regulations, the policy is overridden by the Act, Statute or Regulations to the extent of the inconsistency. In this case, university interpretation of policy is inconsistent with the Copyright Act and the interpretation should be overridden by the law laid out in the Act.

All organisations and businesses must observe superior legislation when drafting their internal policies. Discrimination laws are considered when drafting HR policies in the workplace and disability laws are considered when completing new construction works. These entities observe these laws because they are superior acts of legislation that operate above any internal policy they may implement. It is in this way that universities must formulate their policies without infringing upon the superior rights granted to student publishers under the Copyright Act.

Universities should explicitly state in their policies that publishing past work is encouraged to the extent that a student can only publish their work after the completion of a unit. Such an approach would strike a reasonable balance between observing the publishing rights of students whilst also limiting risks of misinterpreting broad academic misconduct policy.

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