U of T fails to communicate standards and provide procedural rights
Since the pandemic began, academic offence cases have soared at the University of Toronto. According to the Provost’s Annual Report, the number of accused students doubled in the past two years, disrupting the steady trend of decline observed since 2016. Notably, instances of cheating, formally called unauthorized aid cases, increased by more than 250 percent in the 2020-2021 academic year and, for the first time, surpassed plagiarism as the leading offence at U of T.
Despite multiple issues in The Varsity addressing the challenges and implications of academic offence cases, law students, evaluated almost exclusively through open book exams, are insulated from these administrative proceedings. Last fall, while working as a full-time Downtown Legal Services (DLS) caseworker in the Criminal Law and University Offences Division, I was stunned by the lack of transparency and procedural unfairness our academic offence system produces. My clients accused of committing crimes were often treated with more respect and deference by their prosecutors than a nineteen-year-old suspected of having an extra tab open during her online test.
1) The University failed to communicate the standards and procedure to students
Unbeknownst to most students, U of T’s Code of Behaviour on Academic Matter, contains a catch-all offence: “any form of […] academic dishonesty […] to obtain academic credit or […] advantage.” Therefore, seemingly innocent mistakes such as incorrectly citing an academic paper can lead to sanctions. In this context, ignorance is not bliss. The mens rea for an academic offence is based on what the student “ought reasonably to have known,” whereas the University’s burden of proof is only on a balance of probabilities.
The combination of a broad definition of academic offences, a counterintuitive standard of fault, and a relatively low burden of proof empowers the University to convict a student even if the latter did not have the specific intent to commit an act of academic misconduct. The burden on the University is only to show that, based on their academic experience and/or the content of the course syllabus, the student more likely than not should have known better.
During the pandemic, the University has also failed to warn and educate students on the relevant standards and procedures. During remote learning, instructors often only notify students of “alarming evidence” suggesting they committed “a serious academic infraction” via email without offering them an opportunity to discuss what the allegations are based on or may entail. Even the Dean’s meeting, initially designed to offer students an opportunity to demonstrate their innocence to an unbiased decision-maker, is sometimes reduced to an email notifying students that they can plead guilty within ten business days and accept the proposed sanctions, or the matter will be automatically referred to the Provost. This heightens student anxiety without providing them with proper disclosure.
2) The University failed to train Deans’ designates to respect students’ procedural rights
Despite the Academic Integrity website framing it as a four-step-process, the academic offence system has two stages: (1) the Decanal stage where little disclosure, meeting opportunity, or timely response is provided to students, and (2) the Tribunal stage where students are prosecuted in a quasi-criminal and formal manner by a university-hired lawyer. Disturbingly, at the Dean’s level, the strongest predictor of whether the student will be treated with respect or provided with proper disclosure is whether the Dean or their designate—a professor who volunteers to act as the Dean in academic offence cases—is nice or compassionate.
Since there are no standard guidelines across faculties, some Deans can be very adversarial and closed-minded. A DLS client, K, met with a Dean’s designate over Zoom. After showing her incomplete Quercus logs suggesting that she consulted course content during one of K’s closed-book tests, the Dean’s designate pressured K to plead guilty to two charges of unauthorized aid while austerely stating: “the truth is the truth … no point in dragging this.” K pleaded guilty to resolve the matter promptly as a pending academic offence would postpone their graduation, which would in turn affect their immigration status. A week later, Quercus support team emailed DLS to confirm that the Quercus timestamps and access logs are “generally far from accurate” and should not be relied on “for any serious matter.”
Even more disappointingly, when this email was used by another DLS caseworker to question the reliability of the same type of evidence in another case, a different Dean’s designate simply said, “Quercus is reliable” and aggressively turned down the caseworker’s attempts to show the defense evidence. This aggressive attitude adopted by some Dean’s designates reveals the University’s failure to treat students as innocent until proven guilty and entitled to proper notice, disclosure, and an objective decision-making process that can filter out frivolous charges and only consider reliable evidence.
3) The Long Wait for a Fair Hearing
Almost all of my clients in 2021 waited around six months to learn about the basis of these allegations. From April to June, eight students who eventually retained DLS learnt that their grades were withheld pending review for allegations of academic offences. Both the mean and median of their waiting time for a Dean’s meeting was six months. Moreover, it often takes over a semester for the Dean to refer matters to the Provost for review. Another DLS client, C, who maintained their innocence at the Decanal level, waited nearly 20 months for their matter to be referred to the Provost.
At the first meeting, C corrected the Dean’s mistaken assertion that a “no copy-paste” rule was featured on the exam in question. This was then followed by months of silence from the University. Upon DLS’ request, a second meeting was held during which the Dean shifted the allegations from cheating to plagiarism from group-made notes. After C asserted that they were innocent, instead of verifying the claim, the Dean indicated that she would refer this matter to the Provost. Over the next nine months, after several reminders sent by DLS, she finally sent the matter to the Provost for review. As of January 2022, C is still waiting for the Provost to confirm whether charges will be laid. If they are, C will probably wait another semester to receive formal disclosure (i.e., the University’s full evidence against them).
Fortunately, for students who can afford to wait through the delays, the Tribunal stage of the academic offence system is procedurally sound. Once a case has been referred to the Provost by the Dean, the University will hire a lawyer to prosecute each case. Unlike Deans’ designates, lawyers understand the standards and evidentiary issues required to convict a student, and, therefore, will drop frivolous charges and respect the accused students’ rights to disclosure and a fair hearing.
However, of the 3901 accused students last year, less than 30 received a Tribunal hearing. The vast majority of cases will be resolved at the arbitrary and often intimidating Decanal stage. This means that many students, without legal representation or prior knowledge of the relevant process, will be faced with a difficult decision: to plead guilty or risk jeopardizing their eligibility for a scholarship, their program’s externship, and even registration for the following academic year.
In criminal law, wrongful convictions are often indicative of a systemic failure. In my view, the pressure on students to plead guilty generates false positives that, along with some Deans’ designates’ reliance on questionable evidence or intimidation tactics, renders the academic integrity system at the University of Toronto unjust.
