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Farrer & Co | New guidance on contract cheating

In October 2017 the Quality Assurance Agency for Higher Education (QAA) published its guidance on how to address contract cheating and the use by students of third party services and essay mills. The full paper can be found here. In this article, Will Charrington considers the most helpful pointers given in the guidance and discusses what institutions should be doing to prevent and confront the use of these online services for dishonest purposes.

The commissioning by students of custom written essays through online "essay mills" has attracted a great deal of media attention in recent years. Opponents of this practice refer to it as "contract cheating" and allege that these online businesses exist purely to enable students to pay others to complete course assessments which they will then submit as their own work. Opponents argue that the industry should be stamped out for a number of reasons; these range from the undermining of standards in our Higher Education Institutions (HEIs), to risk to the public on the basis that graduates who have used these services may go on to practise professional roles with inadequate skills.

The argument from the essay writing industry, on the other hand, is that HE providers are failing to equip their students with the necessary skills to produce written work on their own. The essay mills say that they fill that gap, supporting students who are struggling by providing "model answers" which are not intended to be submitted as part of a student's assessment but which can be used as a learning tool to aid study.

Whatever your view on the true intentions of the third parties who provide these services and the students who purchase them, there is little doubt that custom essay plagiarism represents a huge challenge to the HE sector. The recent guidance from the QAA is therefore a helpful reminder of what HEIs should be doing to prevent contract cheating and of how to manage allegations when they arise.

Key recommendations from the new guidance

The QAA recommendations cover four principal areas: education, prevention, detection and regulation.

Education

The guidance suggests increased education of both students and staff. In broad terms it recommends that HEIs place a positive emphasis on academic integrity, as well as a negative focus on misconduct.

Students should be given written information about the dangers of contract cheating and offered support to enable the development of their academic writing skills. In particular, students who are studying programmes which lead to professional qualifications should be told that a finding of plagiarism or other cheating will be reported to the relevant professional body.

Staff should receive training on how to design assessments which can resist contract cheating and on the procedures to be followed when cheating is suspected.

Prevention

As well as making assessment methods more resilient, the QAA advocates blocking access to essay mill websites from Wi-Fi systems and computers on their campuses.

The guidance also refers to anecdotal evidence which suggests that some academic staff and PhD students are complicit in contract cheating services. Such conduct may take the form of turning a blind eye when cheating is suspected, but could also extend to academics supplementing their income by providing written work to students who go on to submit it as their own. In order to reduce the risk of such collusion, the QAA suggests that staff contracts explicitly state that assisting a student to commit an academic offence or ignoring evidence of misconduct would be a cause for a staff disciplinary investigation. The guidance also proposes the alternative of making "the act of 'supply' an explicit offence within the staff disciplinary procedures."

Detection

Departments and individual staff will have different methods for detecting instances of cheating. The QAA therefore encourages the production of written procedures in relation to detection in order to help foster a consistent approach across the HE provider.

It is thought that students are more likely to cheat if they feel that their providers do not know them well. Staff are therefore encouraged to improve their familiarity with their students and their students' work.

HE providers are also encouraged to consider whether their policies and procedures enable students to report suspected instances of cheating, including by way of appropriate safeguards when false allegations are raised and measures to protect whistleblowers.

Regulation

This section of the paper may be of particular interest to HEIs which are concerned that they do not have appropriate written regulations and procedures in place. Providers are encouraged to look strategically at their academic policies and consider how their decisions in this area are made. Again, consistency across all parts of the HE provider is thought to be an obvious benefit. Furthermore, those policies and regulations need to be communicated clearly to the entire academic community so that students, academic staff and management all understand what is acceptable and unacceptable academic practice.

The guidance highlights the importance of having a procedure for any member of the academic community (not just staff) to follow when reporting a suspicion of academic misconduct. It also suggests that academic regulations should set out explicitly circumstances in which they can apply different assessment processes (such as a requirement for an additional oral assessment) to a particular student suspected of cheating. This should help avoid grounds for appeal on the basis of unfair treatment.

The guidance notes that it "is crucial to ensure fairness, starting with the independence and impartiality of those involved in the academic misconduct process". Once again, consistency across the HEI is thought to be key when managing allegations, adjudication and sanctions. Clear procedures need to be laid down in respect of the formation of independent panels, timescales and notification methods.

HEIs may want to review this section of the guidance and use that review as an opportunity to look again at their own regulations and written procedures. Such an exercise may highlight regulations in need of improvement or indeed the need to create policy where it does not already exist.

Guidance on sanctions and standard of proof

The brief section on the sanctions to be applied to a student who is found to have engaged in contract cheating offers an interesting insight into the QAA's current thinking. The guidance states that "contract cheating might normally be considered an extremely serious matter because the deliberate, intentional decision of a student to engage a third party to complete work for them elevates the seriousness of contract cheating above what would normally apply to a case of plagiarism". The QAA concludes that the "recommended sanction for extremely serious academic misconduct should be suspension or expulsion."

In particular, HEI in-house lawyers may be interested to see what the guidance says about the standard of proof to be applied in instances of suspected cheating. The QAA recommends the "balance of probabilities", i.e. for a finding of cheating, it must be more probable than not that the alleged cheating occurred. This is the usual standard of proof in civil proceedings. The more onerous standard applied in criminal cases is of course "beyond reasonable doubt". The QAA acknowledges that the higher criminal standard may appear to be proportionate given the seriousness of the potential sanctions, but concludes that it "may be too strict to enable effective decision making".

The guidance does acknowledge that when a student is found to have cheated, there may be mitigating circumstances in which some leniency in the sanction to be applied may be justified. It also notes the importance of articulating a clear policy on what amounts to mitigating circumstances. However, the prevailing impression is that exclusion is an appropriate sanction.

Conclusion

The October guidance is another reminder that HE providers need to take the issue of contract cheating seriously. A previous report by the QAA published in 2016 highlighted the QAA's own ability to "investigate some higher education providers where there are concerns about academic standards and quality... and where [the QAA thinks] that such concerns indicate serious or procedural problems." That report referred in particular to the QAA's power to investigate the failure of an HE provider to follow its own plagiarism procedures.

If the media reports are true and contract cheating is on the rise, then now might be a sensible moment for HEIs to invest time in forming and implementing strategies to combat these dishonest practices. Some HEIs will already have robust procedures in place to deal with cheating. Those which are less prepared could benefit from a wholesale review of their regulations and policies to establish whether they are fit for purpose and, if so, whether they are properly implemented.

If you require further information on anything covered in this briefing please contact William Charrington or your usual contact at the firm on 020 3375 7000.

This publication is a general summary. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2017

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