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  • Writer's pictureKane Murdoch

"That's why you're the 'judge' and I'm the law talking guy."

Updated: Jan 24

New year everyone, I would say happy but I haven't won lotto and so here I remain. Apologies also for the paucity of insane rants on the site, I've been dealing with *cough* workload stressors, and associated physical things. Stupid lousy work. However, much like a Terminator a zombie, I'm launching out of the proverbial grave to go again in 2024. We have some interesting things happening this year, including guest posts on the site coming soon. If you'd like to add your voice, drop me a line and I'll happily throw you a guernsey.

Some of you may recognise the title of this post from one of the world's great legal minds, Lionel Hutz, a.k.a. Miguel Sanchez.

I increasingly find myself, admittedly (and often more often proudly) a non-lawyer, having to make decisions, adjudicate, and provide advice on what amount to questions of administration law. This may involve me having one of my numerous hats on, being an Appeals panel chair, deciding complaints, managing investigations of serious business, or providing advice to the academic integrity officers who handle and decide cases of plagiarism, collusion, and the like. I wanted to talk through a couple of things that have come up in recent cases that I think many in this space could benefit from. I think this post will essentially be a two parter, so expect the second part in a couple of days.

Mitigating circumstances

It's been my experience that many decision makers, and nearly all students, do not understand what mitigating circumstances actually mean (in the student conduct space), and are often confused about how to handle them in practice. So I wanted to break this down for y'all.

In any student conduct matter there are two major elements: determination (did someone do the thing they are believed to have done, or not?), and penalties (what do we do as a result if the thing happened?). It is extremely common for students, in explaining what happened, to conflate the two and to provide a lot of reasoning that doesn't directly speak to what happened, but rather why it happened. For example, a student is believed to have plagiarised something online and submitted it as their own. When this is raised with them, they explain that they were suffering from various physical maladies. Now of course, ideally a student would be clear about the vagaries of responding to conduct concerns, but of course they're not! So we have to help them by laying this out. Although common, I prefer to think that this is not a deliberate strategy on student's part, but rather a result of stress and anxiety about conduct processes, something of a "throw enough mud and hope for the best" strategy. However, the real error is not on the part of the students doing this. It's when decision makers fail to separate the "what happened?" from the "why did it happen?" These need to be very clearly demarcated. In effect, it's a case of investigators, decision makers either managing conversations in a way that doesn't allow the two to conflate, or to clearly separate the two strands of thinking (say, in summarising a written submission.)

So now that we've got a clear gap between what, and why, how do we deal with that? It's struck me that in practice many decision makers either automatically reduce a penalty because of mitigation, or they ignore mitigation entirely! In my view both of these approaches are an error. In my view, just as we balance evidence in order to reach a determination that a thing happened, we also need to balance information in reaching a penalty outcome decision. I was on a committee panel for a decision recently in which a student had some ongoing, demonstrable, and impactful health issues. These were sufficiently severe that they would ordinarily have entitled the student to some mitigation, in my book. However, they also had a fairly extensive record of academic integrity issues. So, any mitigation we could have given for the health issues was cancelled out by the previous breaches. And while there are other forms of mitigating circumstances, this decision hung on only one- Honesty. This student failed to be honest until the last moment, perhaps seeing writing on the wall. However, if a student denies and deflects and lies, the point of being honest and reclaiming their integrity has clearly not been learned.

Basically my brain in the moment of decision looked like this, and I chose to go right regarding honesty:

And so, honesty or lack thereof became the element that led to a more severe penalty, rather than the lesser penalty that I personally would have voted for otherwise.

The final aspect to highlight here is that when decision makers fail to show their working on questions like this in their written decisions, that's appealable. And in writing out our reasoning, it actually makes things fairer. When a student reads a decision that shows that we heard and considered what they said, even if they disagree with our decision at least our reasoning is clear. When we simply say "I have decided that you did x, and here is the punishment" you can see why that is grossly unfair, right? Anyhow, that's verging on the topic of the second part of this week's post, so I'll leave it there for now.

Adios amigues,


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