Harvey Silverglate and Zachary Bloom
At first blush, the ongoing cheating scandal at Harvard
College appears to raise serious questions about academic integrity at that
fabled institution. If the allegations that 125 students inappropriately shared
notes and answers for a take-home exam in violation of the exam’s rules prove
true, the result will be a massive blot on Harvard’s near-perfectly manicured
public image–especially now that top athletes have been implicated.
But let’s remember that because of the course’s confusing rules and guidelines concerning collaboration, no one, likely not even the
students themselves, can say right now whether their conduct was illicit. Worse
yet, we may never know the truth, much less have a just verdict on the
propriety of the students’ actions, now that the case is securely in the hands
of the spooks haunting Harvard’s notorious Administrative Board.
Sure He Was Guilty
The sad truth is that Harvard’s administrators, who have
virtually total control of the adjudicative process, since students are not
allowed representation on the Board (so much for “diversity” when it really
counts!), are notoriously poor at evaluating evidence of innocence or guilt.
The troubling case of John McCoy, a former client of co-author Harvey
Silverglate, is an object lesson in why the truth about these latest allegations
of cheating will likely never come out.
By the time he was in his mid-thirties, John McCoy, had
spent much of his adult life working at a hedge fund. But he had never finished
his undergraduate degree, so he temporarily moved to Cambridge and enrolled at
the Harvard Extension School to pursue a bachelor’s degree in Economics. From
2005 to 2008, he took classes full-time, including summers, and was set to
graduate in June of 2008.
In mid-April of his final semester, McCoy handed in a
take-home test for his pre-calculus course. The instructions on the front page
expressly forbade students to receive help from anyone, but allowed them to use
their textbook, any notes they took in class, and a calculator. McCoy took the
test at home, by himself at the kitchen table, the night before it was due and
handed it in during class the next day.
the Rabbit Hole
A week later, on April 30, the pre-calculus professor
returned the graded exams to everyone except McCoy and another student. After
class, the professor confronted McCoy and the other student, telling them that
similarities in the errors on their exams suggested that they had cheated by
working together. Additionally, the professor reported the alleged cheating to
the Extension School’s Administrative Board–a parallel entity to Harvard
College’s Administrative Board, albeit one with apparently no written rules or
procedures of its own. Thus began McCoy’s long journey down the rabbit hole of
Harvard’s student disciplinary system.
The next day, administrators informed McCoy via email
that he had just four days to complete a written statement for the board. He
complied, writing a letter protesting his innocence. In addition, he provided
informal responses via email to several questions administrators had asked
about his prior collaboration with the other student accused of cheating. He
told them that they had worked together on a couple of problem sets and
occasionally shared notes after one of them had missed class, but did not
collaborate on the exam.
Your Confession, Please
On May 9, the Administrative Board informed McCoy of its
decision. Despite the lack of a hearing in which McCoy could have testified and
presented evidence in his favor, and despite the lack of any real evidence of
wrongdoing on McCoy’s part in the written record, the Ad Board declared him
guilty, meting out a punishment that required him to withdraw from his
pre-calculus class, withdraw from the Extension School for one year, and suffer
a notation on his transcript that he had been required to withdraw. Worse yet,
administrators informed McCoy that he would have to petition for readmission
before completing his degree–a contravention of the Extension School’s open
enrollment policy. And, in a particularly Orwellian twist, the administrators
informed McCoy that he would be readmitted only on the condition that he
confess, in writing, to having cheated on the exam.
The next week, McCoy retained Silverglate and his former
law firm in an attempt to get this patently unfair verdict reversed, or at
least reexamined. After the lawyers wrote a letter to Harvard’s Office of
General Counsel urging them to give McCoy some measure of fair process, McCoy was
invited at long last to a hearing in which he could formally and personally
present new evidence, including an affidavit signed by his wife stating that he had completed the exam alone at
home, and the results of a polygraph test indicating that McCoy was not lying
when he said he didn’t cheat.
‘Good Luck Suing Harvard’
It would be an exaggeration to call the administrators’
response a fair or even rational one: Not only did they express their shock at
McCoy’s refusal to confess, but one administrator went so far as to taunt
McCoy, saying, “Good luck suing Harvard.” The
message of the meeting was clear: the administrators had made up their minds.
It seemed that John McCoy would have to live the rest of his life with an
undeserved blot on his record, or he would have to sue, a daunting task when a
student goes up against a private university that is not bound by
constitutional requirements of fairness and “due process of law.”
But later on the day of the hearing, he received a call
from the other student accused of cheating. She confessed to having copied
answers off his exam after rummaging through textbooks and papers that he had
left out on his table at a cafe while he stepped outside to make a phone call.
The other student confessed to the administrators about
what she had done. McCoy’s lawyers immediately set about writing another letter
to the Office of General Counsel, this time urging them to reverse McCoy’s
conviction and punishment by the kangaroo court of administrators that had been
so sure of his guilt. The next day, one day before graduation, McCoy received
an email from an administrator (the same administrator who had mocked his
lawyering up to sue Harvard) informing him that while his official graduation
would be delayed until November, he would be entitled to participate in the
next day’s commencement ceremonies as planned. The administrator then
unctuously ended his email by saying: “I am sorry that this matter has
prevented your official graduation tomorrow, but I am relieved, as I am sure
you are, that the disciplinary matter has been resolved”–hardly the statement
of contrition one would expect from someone who had bungled the disciplinary proceedings at every
Unfortunately, the happy (and just) result received at
the last moment by McCoy is not typical of cases that go before Harvard
College’s Administrative Board; the nature and quality of the “hearing” is,
however, quite typical. Hearings held at Harvard College’s Administrative Board
are only slightly more reasonable than the Extension School’s almost comic
tribunal. The unapologetic hauteur displayed by the administrators throughout
McCoy’s disciplinary process is not unique, but pervades the entire
disciplinary culture throughout the university.
Such Secrecy in the System?
More troubling is the fact that the Ad Board’s oppressive
secrecy rules prevent most students who have been similarly railroaded from
coming forward publicly to protest their unfair and often illogical treatment.
And despite reports of a much-delayed public database of Ad Board cases, the reality is that until the disciplinary
system is overhauled entirely–to include more transparency, a student presence,
the accused’s right to confront witnesses, rational weighing of evidence, rules
worthy of a serious fact-finding process, and guaranteed meaningful hearings before
the administrators have made up their minds–the Ad Board system will remain
incapable of separating fact from fiction and of reining in administrators’
unfettered personal proclivities. (Indeed, when a critic of the system makes an
accusation that it is a “kangaroo court,” the invariable reply by college
administrators and other apologists is that the Ad Board is not meant to replicate
a legal tribunal, but is, instead, an “educational body.” One wonders what kind
of “education” accused students are getting from a system where guilt is
determined on the basis of such evidence as would have doomed McCoy before the
intervention of the confession by the guilty student.)
Most importantly, secrecy in the system should be
abolished, because in Harvard’s Administrative
Board, as in justice systems everywhere, secrecy is there not really for the
protection of the student, but rather for the protection of the institution’s
reputation from public knowledge of how the sausages are really made in the
crimson sausage factory. There is a reason why the Sixth Amendment to the U.S.
Constitution provides that “the accused shall enjoy the right to a…public
trial, by an impartial jury…” after being “informed of the nature and cause of
the accusation,” and the right “to be confronted with the witnesses against
him.” Harvard may not be bound by the Constitution, but the Ad Board
administrators stand to learn a few things from its text.
Silverglate is a Boston civil liberties and criminal defense lawyer and writer,
and Chairman of the Board of The Foundation for Individual Rights in Education.
Zachary Bloom is currently Silverglate’s paralegal and research assistant.