Stacking the Deck?

A superior court judge will decide in August whether the University of California, San Diego, can schedule a new disciplinary hearing for a student accused of cheating five years ago. Last year, a state appeals court ruled that UCSD officials violated the student's right to due process when they concealed the identity of a critical witness in the case.

That witness is the person the student allegedly copied from during a midterm exam.

The accused student and the appellate court argue that if the student knew who the other exam taker was, he could prove he did not cheat. The university argues that revealing witness identities is against university policy and that doing so could open them to retaliation. Witness concealment policies are common at many colleges and universities. But student conduct experts said using such a policy in this particular case was unusual.

“I think it’s reasonable for universities to have protective policies and to be concerned about retaliation, but if the court is saying no there’s evidence of threats to a witness, I would just reveal the name of that student,” said Gary Pavela, editor of the Association of Student Conduct Administration's Law and Policy Report and former president of the International Center for Academic Integrity. “I’m concerned about enforcing a policy without thinking through the reasons for the policy.”

In May 2011, according to court documents, the accused student’s chemistry instructor handed out four versions of a midterm exam, each assigned with a different letter: A, B, C and D. The students were also given corresponding Scantron sheets, and the instructor told them to make sure the answer sheets matched the exam they were given. If there was a discrepancy, students were told to notify the instructor and not to alter the letter on the sheets.

The accused student said he arrived late to the exam and missed those instructions. Noticing that his Scantron did not match the exam he was given, the student claims he erased the D marking on his answer sheet and replaced it with an A, so that the two would now match. The instructor collected the answer sheets at the end of class but did not collect the test booklets.

While grading the exams, the instructor noticed that the student had altered the letter on his answer sheet.

In July, the university notified the student that he was suspected of cheating on the midterm. As the student was already under probation for a previous academic infraction, he would be expelled if he violated any other rules. Upon receiving the notice, the student requested a hearing to dispute the charge and asked for any relevant documents supporting the allegation. He was given a copy of his altered answer sheet and a statement from the instructor.

After consulting with a lawyer, the student asked for additional information, including the seating chart and the test forms of students who sat near him during the exam. The student did not receive those documents (and the instructor did not keep a seating chart), but five days before the hearing he received a larger report about the allegations.

In that report, the instructor detailed how 24 of the student’s 26 answers matched that of another exam in the class. The instructor said he consulted a statistics professor who told him that the odds of such an event were “a billion to one.”

The student asked the instructor to reveal the identity of the other exam taker so that he could try to determine if the two were seated near each other. The university denied the request, according to court documents, saying that because the other student was not aware of the allegations, he or she was not a relevant witness.

The university ruled that the student had violated UCSD’s Policy on Integrity of Scholarship and expelled him.

The student soon appealed the decision to the university’s Council of Provosts, arguing that altering a letter on a test form was not itself a violation of UCSD’s policies and that there was not enough evidence to support the finding that he had copied from another student. The student also argued that it was improper for the instructor to consult an outside expert on the statistical possibilities of the case. The Council of Provosts agreed with him on the latter point and granted a second hearing.

Prior to the next hearing, according to court documents, the student again asked for the identity of the other exam taker and was again denied. Using the preponderance of evidence standard of proof, the university ruled that it was still more likely than not that the student had cheated. He was expelled the following day.

In 2012, the student asked a state court to review the case. The court found that “the university had failed to provide any evidence to show the matching exams were more than a statistical anomaly,” and ordered a university to hold another hearing. At the same time, it rejected the student’s claim that he had not been afforded a fair process, however.

The student appealed, and in September 2015 a state appellate court ruled that the university violated its own policies that mandate “certain minimum procedural protections in disciplinary proceedings,” when it refused to identify the other student, known in the lawsuit as Student X. The university, the court said, must reverse its ruling.

The university’s policies state that students must be given reasonable opportunity to present documents and witnesses to confront charges brought against them. Certain exceptions can be made if revealing a witness’ identity could open that person to retaliation, but as the witness in the case was not the accuser, the court stated, there was no reason to expect that identifying him or her would have that result.

“Without this information, [the accused student] could not adequately defend himself against the charge of copying,” the court wrote in its decision. “No eyewitness evidence showed [the student] copied from another student. [He] may have been able to exonerate himself completely by showing Student X was not seated near him. Where Student X sat during the exam was, therefore, ‘knowledge relevant to the charge.’”

Because instructor did not keep a seating chart, the court said, “the only avenue available to [the student] to obtain this information was through Student X.” According to a transcript of the university’s oral argument, a lawyer representing the university's Board of Regents agreed with this assessment.

“Was Student X not relevant?” a judge asked the lawyer. “Did Student X not have relevant information?”

“Yes,” the attorney said. “Student X had relevant information.”

“OK,” the judge continued. “Extremely relevant information, arguably.”

“Extremely relevant,” the attorney said.

“Dispositive, arguably.”

“Potentially dispositive information.”

The attorney also said the university did not try to determine whether the two students sat near each other, nor did it ask the proctor of the exam if he or she had noticed anyone cheating.

“I think there’s a word for that,” a judge said, according to the transcript. “It’s called stacking the deck.”

In July, a California trial court judge made a similar argument about UCSD’s suspension of a student accused of sexual assault. In that case, the judge ruled that the university violated the due process rights of the student by presuming his guilt ahead of a hearing and not allowing him access to witnesses and evidence.

The cheating case now returns to a state superior court, which will rule whether the university can schedule a third hearing to retry the student again, more than five years after the original allegations. A spokeswoman for UC San Diego declined to comment, saying that the university could not discuss pending litigation.

Laura Bennett, president of the Association of Student Conduct Administration, said that “treating every student fairly is at the heart of the student conduct process.” While she declined to comment on the specifics of this case, Bennett said colleges should evaluate each case on an individual basis and take into account the rights of all parties.

“This includes allowing accused students to see the case information that is being used to make a decision and providing them with an opportunity to respond, as well as taking into consideration reasons to conceal a witness's identity, such as safety concerns,” she said. “In terms of best practices, institutions need to ensure a holistic and balanced approach to resolving student conduct cases.”