Thoughts on Evidence: Plagiarism Accusations Against Former Harvard President Claudine Gay Speak For Themselves
Former Harvard President Claudia Gay resigned from her short presidency, on January 2, 2024, due to numerous accusations of plagiarism in her academic work, and further, because she recently testified in Congress that a call for "genocide" was not per se harassment of the students targeted, but depended on the context, reports Associated Press (AP) and The Wall Street Journal, among others. The AP story is linked here.
The former university president said in Congress, as online videos of the testimony show, a call for genocide might be harassing depending on the "context." Let's remember, a call for genocide is a call to murder people based on ethnicity. How is that not harassment? It's a threat, in fact.
What has been surprising in the controversy - but maybe too typical from a litigation perspective - is how university president's resignation letter did not admit significant missteps. As reported by the Associated Press linked above, she stated in her resignation letter, it is "distressing to have doubt cast on my commitments to confronting hate and to upholding scholarly rigor — two bedrock values that are fundamental to who I am." She resigned for the good of the institution, she reportedly explained.
Takeaways:
If you are facing a wrong and contemplating legal action, this public incident at Harvard is a good teaching moment.
In my experience as someone who practices employment and civil law in state and federal courts, and pursues employment claims before administrative agencies, the alleged wrongdoer often will deny the wrong. Let's say: if someone's hands are caught in the cookie jar, they might first say, don't look at me!
As a result of common denials, allegations of wrong must be proven. In my experience as an employment attorney representing employees, more often than not employees will (1) face denial, and (2) will need to prove their case. A plaintiff, generally speaking, has the burden of proof.
Further and third, (3) sometimes facts in the full context will not support the perception of the aggrieved. In an employment claim, a company often has greater access to documents and witnesses. A company controls the documented information in their files. So, often in a lawsuit, investigation is needed. Further, an aggrieved individual must prove their case often against denials, people looking the other way, and other routine failures of memory whether convenient or not.
Accusations of Plagiarism Here: Documents Can Speak For Themselves:
What's interesting about accusations of plagiarism against former Harvard President Claudia Gay is how her scholarly work quoted often reprints another's scholarly work, with just slight changes to phrasing or order of it, reports The Washington Free Beacon (linked here) with several examples.
In other words, the quotes appeared to be copied. Second, the slight changes evidence additional thoughtfulness to shuffle around phrases. As a result, this shuffling and copying combined indicates intent rather than whoops, an accident. If not, why else would word order be shuffled around and copied?
According to the Washington Free Beacon, Prof. Lee Jussim, a social psychologist at Rutgers University, reviewed some of the examples and said: "This is definitely plagiarism."
Let's look for ourselves at one example reprinted by The Washington Free Beacon. As reported, scholar George Reid Andrews wrote:
- "The new movement of the 1970s and 1980s was to a large degree the expression of frustration among upwardly mobile Afro-Brazilians denied admission to the middle-class status to which their education and qualifications entitled them."
- Gay is reported to have written without quoting it: "The movement became expression of frustration among upwardly mobile Afro-Brazilians denied admission to the middle-class status to which their education and qualifications entitled them."
In the Gay quote, she cut out the qualification "of the 1970s and 1980s was to a large degree." She also did not call this a "new" movement as Andrews did, just "[t]he movement." Andrews is the author of the book, Blacks & Whites in São Paulo, Brazil, 1888-1988 (Univ. of Wisconsin Press).
So, it also can be inferred that Gay might have a different opinion of this "movement," as she cut out the description of it as "new." The entire article is not covered here, and she calls it an "expression" rather than as in Andrews, mostly "an expression," that is "to a large degree." These two nuances (if they are meant to be nuances in the context of the entire article) are the lifeblood of scholarship. Scholars enhance scholarship by citing to other scholars and so underline their own research and emphasis.
The above is typical of the seven reprinted examples in the article by The Washington Free Beacon, by Aaron Sibarium (Dec. 11, 2023), online at https://freebeacon.com/campus/this-is-definitely-plagiarism-harvard-university-president-claudine-gay-copied-entire-paragraphs-from-others-academic-work-and-claimed-them-as-her-own/ (last visited Jan. 4, 2024). In fact, some of the examples reported have longer copying and more obvious swticheroos.
The Washington Free Beacon reporting also was cited by The New York Times in "What to know about the latest plagiarism accusations against Claudine Gay" (Jan. 2, 2024). As of available information by the writing of this article, Jan. 4th, 2024, Gay remains a Harvard professor.
Further Discussion (Numerosity as Evidence):
As student reporters at The Harvard Crimson summarized on Jan. 3, 2024, an institutional complaint against Gay filed in December 2023 cited "more than 40 instances of plagiarism" and "span Gay’s entire academic career." The Crimson article is linked here.
Concerning evidentiary analysis, numerosity can evidence lack of accident. How many times can a mistake occur?
Further concerning evidentiary analysis, numerosity plus span of years together can evidence a pattern. It can constitute admissible habit or pattern evidence under state and federal rules of evidence.
Federal Rule of Evidence 406 states: "Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness."
Final Thoughts:
Hopefully in this Web site article for Mosson Law, LLC, I have modeled citation of sources for the information discussed here. This article relies on these reports of the accusations and the one example cited, and others reviewed. Thus, I am not offering original reporting. Rather, I apply evidentiary analysis.
If this matter went to trial due to some sort of dispute about it, one side or both sides might seek to have an expert witness testify about what constitutes plagiarism in academia, whether intent is required to constitute plagiarism, and even whether plagiarism has occurred. Hiring experts can be an expensive proposition in court practice. This said, a lay person can look at the examples themselves based on what I have reviewed and draw conclusions.
I myself have authored two academic legal articles. In legal academia, it is common to footnote and cite almost every statement. So, the above example could have be solved simply by a citation. My articles are as follows:
- Gregg H. Mosson, Comment, Equitable Subrogration in Maryland Mortgages and the Restatement of Property: A Historical Analysis for Contemporary Solutions, 41 Balt. L. Rev. 709 (2012);
- Gregg H. Mosson, Robosigning Foreclosures: How It Violates Law, Must Be Stopped, and Why Mortgage Law Reform Is Needed to Ensure the Certainty and Values of Real Property, 40 W. St. U. L. Rev. 31 (Fall 2012).
If someone plagiarizes, they steal another's work and seek to pass it off as their own. It involves a bad intent. To prove intent despite denial can be tricky.
Proving lack of accident or mistake is a good start. Secondly, the use of habit evidence can help prove intent in a single instance. The proof of intent at court can use emails and other documents to piece together what happened. Likewise, witnesses may have heard an admission. Indeed, proving intent is complex.
Gregg H. Mosson, Esq.
Mosson Law, LLC
ABOUT: Our founder and experienced attorney, Mr. Mosson, focuses on representing employees in claims of illegal discrimination, illegal retaliation, disability rights violations, FMLA interference, wrongful terminations, and when seeking owed wages. He also serves people seeking disability benefits from Social Security. His experience and knowledge in these areas of the law are vast and helpful to the clients he represents. For more details, visit the Web site at www.mossonlaw.com. To contact us, you can click here or call 443-226-0601.