JUAN CARLOS FERNANDEZ

v.

MIAMI DADE COUNTY

Respondent, Florida International University.

Before: TRAWICK, WALSH and SANTOVENIA. [*1] WALSH, J.

Shenee Murray is a graduate nursing student at Florida International University ("FIU"). She petitions this Court to issue a writ of certiorari quashing FIU's written reprimand on a finding of academic misconduct. For the following reasons, we grant the writ and order FIU to quash its decision and written reprimand of Ms. Murray.

We review orders of final disciplinary action by a Florida university by certiorari. Decker v. Univ. of W. Fla., 85 So. 3d 571, 574 (Fla. 1st DCA 2012). Accordingly, our standard of review is limited to whether the university provided due process of law, whether it observed the essential requirements of law and whether its findings are supported by competent, substantial evidence. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Background

The FIU Student Honor Code prohibits the following:

1. DEFINITIONS

a. Academic Misconduct: Any act or omission by a Student, which violates the concept of academic integrity and undermines the academic mission of the University in violation of the Code. ***

6. ACADEMIC MISCONDUCT VIOLATIONS

a. Academic Dishonesty 1. In general, by any act or omission not specifically mentioned in the Code and which is outside the customary scope of preparing and completing academic assignments and/or contrary to the above stated policies concerning academic integrity. [*2] *** g. Plagiarism 1. The deliberate use and appropriation of another's work without any indication of the source and the representation of such work as the Student's own.

Professor Sandra Lobar issued a syllabus to the students at the beginning of the class. In it, she defined misconduct as follows:

Misconduct includes: Cheating: The unauthorized use of books, notes, aids, electronic sources; or assistance from another person with respect to examinations, course assignments, field service reports, class recitations; or the unauthorized possession of examination papers or course materials, whether originally authorized or not. Plagiarism: The use and appropriation of another's work without any indication and the representation of such work as the student's own. Any student, who fails to give credit for ideas, expressions or materials taken from another source, including internet sources, is guilty of plagiarism.

As a student taking this class: • I will not represent someone else's work as my own. • I will not cheat, nor will I aid in another's cheating. • I will be honest in my academic endeavors.

Professor Lobar's class also distributed an academic dishonesty video which instructed the students against cheating or plagiarizing other students' work.

The students in Professor Lobar's Translational Research class were required to use an application called "Turnitin" to submit their assignments. Turnitin analyzes their work to determine whether there is a quantifiable similarity between the students' work and any other work previously submitted to the University or accessible on the internet. In other words, Turnitin flags unoriginal work. [*3] Professor Lobar's syllabus set the threshold for acceptable similarity to other sources through Turnitin at 25%. This percentage would account for an author's appropriate citation to or quoting other research authorities.

Ms. Murray submitted a research paper to Professor Lobar through Turnitin. Turnitin returned a "Similarity Index" of 80%. 79% of the similarity was attributed to a student paper "submitted to Florida International University." When Ms. Murray received this similarity report from Turnitin, she emailed her professor:

Hello Dr. Lobar, I turned in my assignment #1 and saw the turn it in results originality report. Just FYI, last semester I did an annotated bibliography that asked a very similar question as your assignment #1, basically towards the DNP project. Therefore, I expanded on the research I did for the annotated bibliography and answered whatever was different in your question from last semester. The work is my original work, from my hard work researching material. Any information I got from the research papers I read and analyzed I cited in the body of my paper and in the reference. I worked very hard for in all my subjects and also this assignment #1.

Thank you Shenee Dr. Lobar later accepted an amended assignment from Ms. Murray that fell within acceptable Turnitin similarity limits, for which Ms. Murray received a grade deduction for late-submitted work. Dr. Lobar referred Ms. Murray to the Office of Student Conduct and Conflict Resolution on charges of Academic Misconduct. The Office of Student Conduct and Conflict Resolution formally charged Ms. Murray with academic misconduct, specifically, plagiarism and academic dishonesty. [*4] Ms. Murray requested a formal hearing, where she expected to cross-examine Dr. Lobar on the charges. However, Dr. Lobar did not attend the hearing. Ms. Murray was the only live witness who testified at the hearing.¹ Ms. Murray testified that she obtained both her bachelor's and master's degrees in nursing from FIU and is now pursuing her doctorate degree in nursing. She is employed as a surgical ICU nurse at a major public hospital. She obtained straight A's in all her classes for her master's degree and completed her first year in the doctorate program, also with straight A's. Never in her academic career had Ms. Murray been accused of academic dishonesty.

During her first semester, Ms. Murray took Nursing Science and Theories of the APN where she was asked to write a paper about one of her clinical problems, the significance of the problem, and provide literature searches about the problem. Dr. Lobar's project asked many of the same questions as were asked in her firstsemester class:

Dr. Lobar's class asked the same thing, the clinical problem, the significance of the problem and literature searches. The difference is the first subject focused on the theories that guided the studies of the literature whereas Dr. Lobar's class focused on the solution. In her, which is what I did. (sic) N 1 Ms. Murray also complains that she was deprived of due process for the failure of FIU to call Professor Lobar as a witness. We decline to find that FIU was required to procure a specific witness where nothing in the Code obligated FIU to call witnesses, and Ms. Murray was free to call any witnesses on her own behalf and chose not to call Professor Lobar. [*5] Ms. Murray testified that she completed her work as instructed in the syllabus:

Yes, her syllabus, under the course objectives on the first page, number three it said, "students will be able to synthesize evidence-based literature to address a clinical problem and provide a rationale for the intervention." That is what I did in her paper. So, the papers were not the same. They were different. Where the focus was different, I addressed that. Just as she said here, that even though students may have similar papers in other classes about areas of interest, this assignment was created to help students refine the problem and the significance. I did exactly that.

Ms. Murray further explained that some of the questions from the first semester's paper were the same as the paper for Dr. Lobar's class, which explains much of the similarity:

They both asked about the significance of the problem. And I was never told that I could not use a previous paper when the question is the same. I was never even told not to use a previous paper in total. By definition, I cannot be guilty of plagiarism because there's nobody else's work I used. And the fact that I reported the similarity score to her, I am the one who said it to her indicates that there's no dishonesty.

Further, Ms. Murray testified that she was the one who noted the 80% similarity and brought it to Dr. Lobar's attention. The fact that she alerted her professor evinced lack of dishonesty.

The Committee found Ms. Murray culpable for both plagiarism and academic dishonesty. The formal letter served as a written reprimand. The Committee also required that she complete a reflection paper and receive a grade sanction. Her [*6] reduced grade on the substituted paper was accepted. Her administrative appeal was denied, and she timely filed this petition.

Analysis

Two of the issues raised by the Petitioner merit reversal of this academic sanction.

First, Ms. Murray argues that there was a dearth of competent, substantial evidence to support academic dishonesty or plagiarism. Second, she argues that she was denied due process of law where the mens rea of academic dishonesty was unsupported by the facts. We find that FIU failed to present sufficient competent, substantial evidence to prove either charge. We further find that finding Ms. Murray culpable for plagiarism and academic misconduct for use of her own prior work violated her due process rights, because she was not put on reasonable notice that her conduct was prohibited.

Academic Dishonesty

The Code defines academic dishonesty as follows:

a. Academic Dishonesty
1. In general, by any act or omission not specifically mentioned in the Code and which is outside the customary scope of preparing and completing academic assignments and/or contrary to the above stated policies concerning academic integrity.

The syllabus expounded on the prohibition against academic dishonesty or cheating:

Misconduct includes: [*7] Cheating: The unauthorized use of books, notes, aids, electronic sources; or assistance from another person with respect to examinations, course assignments, field service reports, class recitations; or the unauthorized possession of examination papers or course materials, whether originally authorized or not. Plagiarism: The use and appropriation of another's work without any indication and the representation of such work as the student's own. Any student, who fails to give credit for ideas, expressions or materials taken from another source, including internet sources, is guilty of plagiarism.

As a student taking this class: • I will not represent someone else's work as my own. • I will not cheat, nor will I aid in another's cheating. • I will be honest in my academic endeavors.

Dr. Lobar also furnished the students with a video, which also focused upon the unauthorized use or representation of another person or source's work.

FIU proved that Ms. Murray used portions of her own prior work concerning the same subject matter in her paper submitted to Dr. Lobar's class. Nothing more. Some of the questions she answered for Dr. Lobar were identical to questions answered in her prior work. Ms. Murray explained further that she worked as a nurse in the ICU at a public hospital on transplant patients and that transplant issues were an area of interest for her. There was no proof through the reports or emails (Ms. Murray was the only live witness because Dr. Lobar chose not to attend the hearing), nor through her testimony that she intended to commit an act of academic dishonesty. In fact, in her email to her professor prompted by the Turnitin report, [*8] she alerted Dr. Lobar to the issue with the same explanation she gave at her formal hearing.

We find that the plain language of the code provision on academic dishonesty coupled with the syllabus prohibitions on academic dishonesty and cheating did not clearly proscribe Ms. Murray's conduct and thus, FIU violated her due process rights in sanctioning her for this conduct. A fundamental tenet of due process in proceedings on a charge of misconduct is that the accused have reasonable notice of the improper or unlawful act. In order to comply with due process, the terms of an act or ordinance must be sufficiently explicit to give fair notice to an accused that the conduct is unlawful. For example, in quashing a municipal ordinance which did not adequately describe prohibited conduct, the court in City of W. Palm Beach v. Chatman, 112 So. 3d 723 (Fla. 4th DCA 2013) quoted with approval the following language in Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926):

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.... The dividing line between what is lawful and unlawful cannot be left to conjecture. *** [*9] The court in State v. Llopis, 257 So. 2d 17, 18-19 (Fla. 1971) likewise rejected a penal provision so vague and uncertain that no reasonable person would be put on notice of what conduct is prohibited:

'. . . Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in Cline v. Frink Dairy Co., 274 U.S. 445, (47 S.Ct. 681, 71 L.Ed. 1146), 1927 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' (quoting Brock v. Hardie, 154 So. 690 (Fla. 1934)).

Here, nothing in the rather vague, catch-all language in the FIU Code of Student Conduct's definition of "academic dishonesty" would put a student like Ms. Murray on reasonable notice that it is unlawful to use one's own prior work product when answering the same questions on a paper in a subsequent class. Nor did the professor's syllabus and video apprise her of anything more than that she must not appropriate the work of others. To uphold this sanction would allow the university to subjectively determine -- after the fact -- whether or not a student's acts constitute dishonesty or are instead permitted. Such arbitrary and subjective enforcement violates the students' due process rights under the Code.

We also find that the evidence presented here fails to satisfy the standard of competent, substantial evidence to support the charge of academic dishonesty, where [*10] the only evidence - that Ms. Murray used portions of a prior paper in her current paper - did not establish the charge of academic dishonesty.

Plagiarism

FIU takes the position that using one's own work prior work constitutes plagiarism. Under the plain language of the FIU Code, Ms. Murray's conduct did not constitute plagiarism. The Code defines plagiarism as:

g. Plagiarism
1. The deliberate use and appropriation of another's work without any indication of the source and the representation of such work as the Student's own.

This student did not use "another's work." If FIU intends to punish use of one's own work as plagiarism, it must amend its code. Under the current definition, use of one's own work is not plagiarism.

Thus, the evidence introduced at the hearing – the complaint, emails and Ms. Murray's own testimony do not constitute competent substantial evidence to sustain the charge. Neither was Ms. Murray afforded due process, because she was never placed on notice of prohibited conduct under the plain language of the Code's term. [*11] Accordingly, we quash the final decision of academic misconduct imposed upon the Petitioner and remand with directions to remove the sanction from her academic transcript, and the grade penalty for the assignment.

TRAWICK and SANTOVENIA, JJ., CONCUR. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*12] Copies Furnished to: [email protected] [email protected] [email protected] [email protected]