12/11/2014 04:32 pm ET Updated Feb 10, 2015

Put the Intent Back into Plagiarism!

In our college student defense legal practice, we frequently defend students charged with plagiarism for having turned in incompletely cited drafts or the wrong drafts as final drafts. These cases almost always arise under student honor codes that treat the element of intent as irrelevant to their definition of plagiarism.

Although these papers may otherwise deserve low or even failing grades, they clearly are not attempts to pass off someone else's work as their own and should not be treated as though they were. The mistakes are unintentional and most often the product of carelessness. Punishing unintentional mistakes by applying the harsh label of plagiarism is unjust and contrary to the purpose of academic honor codes.

Colleges and universities need to put the element of intent back into their definitions of plagiarism. Too many academic honor codes have eliminated the element of intent from their definitions of plagiarism. An honor code that ignores intent is an honor code that doesn't care about honor and one that serves no true educational purpose.

Why do we have academic honor codes? It's not to teach honesty. Presumably, that trait was learned long ago at home and/or perhaps covered in the curriculum during pre-school and kindergarten.

No, we have academic honor codes to educate students about the standards expected of them as scholars learning to research and write. Scholars, like artists, stand on the shoulders of those who came before them. Proper citation is a means of showing the path to your conclusions so that others may someday stand on your shoulders. But citation is not some innate morality code that "good" people are born knowing. Rather it is something that needs to be taught.

Some teachers recognize the need for instruction versus pure enforcement. Jodi Daynard, an English teacher at Newton South High School in Massachusetts, says that "students need to be taught integrity and the responsible use of sources." Daynard, a novelist and former lecturer at Harvard and MIT adds that "one can't assume that students come to college knowing what plagiarism is or even fully understanding why it's' wrong." Daynard is developing an honesty curriculum geared to both high school and college students.

Honor codes should punish those who intentionally seek to cheat and wrongly take credit for the work of others. Intent is often hard to determine after the fact. But to ignore it perverts the purpose of teaching.

Instead of doing the hard work of teaching proper citation in the age of internet research and the equally hard work of getting to know their students' minds, schools instead rely upon the blunt instrument of big data in the form of and other anti-plagiarism services. According to a recent NPR broadcast by Cory Turner, nearly one-half of higher education and high schools now use

The mandatory requirement of submission of student writing to Turnitin's giant database also raises grave concerns over the loss of privacy rights and copyright for those students. But the biggest loss is the loss of educational purpose.

By relying on raw aggregation of the number of questionable cites to determine academic integrity, colleges and universities turn their back on teaching students how to research and write. Anti-plagiarism applications by themselves can no more determine guilt or innocence than a polygraph can discern conclusively determine truth from lie. Both are tools. And tools are meant to be wielded by humans.

Turnitin, itself, recognizes that assessing plagiarism requires distinguishing between intentional and non-intentional cases and recommends using the software as an instructional support. The Turnitin FAQs section states:

"Incidents range from blatant to subtle and from unintentional to intentional. Many cases result from a lack of awareness on the part of students as to the nature and seriousness of plagiarism. For this reason, the problem calls not only for detection and enforcement but also education and training. We encourage educators to use a tool like Turnitin to help sensitize students to issues of academic integrity and proper citation. Turnitin can be used as an instructional support tool...."

As plagiarism defense lawyers, we find that our student clients do not seek to evade any consequences for turning in poorly cited papers or the wrong drafts. Almost all of them would be willing to take lower grades (even an "F") and have to re-do a paper or course. What they object to is being labelled a plagiarist for unintentional mistakes.

A mistake in citation is not the same as a failure to cite. And turning in a draft of a paper that is filled with incomplete citations and unfinished writing should not automatically be treated as an attempt to pass off someone else's work as one's own. Mistakes such as these should be penalized academically through grading and credits, not prosecuted as violations of an honor code. Treating unintentional mistakes identically to intentional violations of an honor code makes the honor code meaningless.

Colleges and universities fail their students when they define plagiarism as an all-encompassing term that relieves faculty and administrators of the duty to teach and assess. Plagiarists seek to fool people. That requires intent.