Michael Sanderson v. University of Tennessee - Concurring

• Court: Court of Appeals of Tennessee
• Decided: November 19, 1997
• Docket: 01A01-9607-CH-00289
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE FILED MICHAEL SANDERSON, ) ) Plaintiff/Appellant, ) Davidson Equity No. 94-3806-III 1997 November 19, ) vs. ) ) UNIVERSITY OF TENNESSEE, ) Appeal No. 01A01-9607-CH-00289 Cecil W. Crowson ) Defendant/Appellee. ) Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

Marilyn L. Hudson Beauchamp E. Brogan Knoxville, Tennessee Ronald C. Leadbetter Knoxville, Tennessee

AFFIRMED

HOLLY KIRBY LILLARD, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J. OPINION

In this case, a student at the University of Tennessee was charged with plagiarism. After a

hearing, an administrative law judge found that the student had not committed plagiarism. The

University Chancellor reversed the ALJ’s decision, issuing a final order finding the student guilty

of plagiarism. The student appealed this decision to the chancery court, pursuant to the Tennessee

Uniform Administrative Procedures Act, which affirmed the finding of plagiarism. We affirm the

decision of the chancery court.

In the spring of 1994, Plaintiff/Appellant Michael Sanderson (“Sanderson”) was a senior

undergraduate student at The University of Tennessee at Knoxville. He was enrolled in a class

taught by Professor Robert Glenn. Professor Glenn distributed the class syllabus electronically at

the beginning of the semester. The syllabus stated that a term paper would account for 30% of the

course grade. The syllabus further provided:

All assignments are to be the original work of the student presenting the work. Sources used in preparation are to be cited, and direct quotations are to be identified as such. Presentation of materials prepared by another person as your own work is cause for failure in the course.

The class discussed the subject of plagiarism during two separate class meetings, and Sanderson

attended class on both of these occasions. One of the course textbooks assigned as reading for each

class member defined plagiarism as follows:

Plagiarism means using an author’s words or ideas without giving credit. Credit for ideas usually is in the form of citing the author and year of publication in the text and reference list. Credit for actual words goes beyond this to giving the page number in the text and using quotation marks around the quoted material.

The course syllabus provided that the first draft of the term paper was due on April 20, 1994.

It did not state that the first draft would be graded, but stated that the draft counted for 15% of the

final grade. Sanderson submitted his first draft by E-mail to Professor Glenn and received an initial

grade of 84, one of the three highest grades in the class. After Glenn’s review, Sanderson decided

to enter his paper in the university-sponsored McClung Research Paper Contest. Sanderson was ill

the day the contest entries were due, and his girlfriend took his computer disk to the speech

department and entered the paper in the contest for him.

One of the faculty members who reviewed the contest entries contacted Glenn and told him

that some of the material in Sanderson’s paper was not original. Glenn then compared Sanderson’s

first draft and the paper entered in the contest with the original sources. He concluded that much of

the first half of Sanderson’s paper had come from Persuasion: Theory and Research, a book written by Daniel J. O’Keefe. This book was a textbook in another speech class that Sanderson had taken

previously. After the comparisons, Glenn sent Sanderson an E-mail message asking to meet with

him to discuss his term paper.

On May 4, 1994, Glenn met with Sanderson in the presence of Dr. Faye Julian, the head of

the speech department. Glenn told Sanderson that he believed portions of the term paper had been

plagiarized. Sanderson denied the charge and claimed that he had not cited meticulously in his first

draft because he believed such exhaustive citation was not required in a rough draft. He divulged

that he used an unpublished master’s thesis as a source but that he failed to cite that source anywhere

in the paper. All of the other sources were cited somewhere in the body of the paper and in the

bibliography. Sanderson also claimed that his girlfriend had mistakenly taken the wrong computer

disk to submit his paper in the contest. He then produced a third version of the paper, printed from

a different disk, which he claimed was supposed to have been submitted in the contest.

Following the meeting, Glenn compared Sanderson’s first draft, the contest paper, and the

paper that Sanderson gave him at the May 4th meeting with a number of the source documents.

After comparing all three versions to the sources, Glenn concluded that Sanderson had committed

plagiarism. Glenn notified Sanderson that he would receive an “F” in Speech 499. Glenn then

forwarded the matter to the University administration for disciplinary action, and the University

formally charged Sanderson with plagiarizing in the first draft of his term paper.

A hearing on the charge of plagiarism was held before an Administrative Law Judge (“ALJ”).

Noting that the University did not have an established definition of plagiarism, the ALJ used the

definition in Black’s Law Dictionary: “The act of appropriating the literary composition of another,

or parts of passages of his writings, or the ideas or language of the same, and passing them off as the

product of one’s own mind.” Black’s Law Dictionary 1308 (4th ed. 1968). Based on this definition

and the testimony of Sanderson and his girlfriend, the ALJ found that Sanderson did not intend to

commit plagiarism and therefore was not guilty of the charge.

Pursuant to Tennessee Code Annotated § 4-5-315, the University appealed the ALJ’s initial

order to the University Chancellor, William Snyder. Chancellor Snyder did not hold a hearing, but

reviewed the record. Chancellor Snyder compared all three drafts of Sanderson’s paper to the

original source materials and, citing the definitions of plagiarism utilized in the class, concluded that

Sanderson was guilty of plagiarism. He issued a final order, reversing the ALJ’s decision, affirming

2 the penalty of a final grade of “F” for the course and suspending Sanderson for one year. Sanderson

then appealed Chancellor Snyder’s final order to the chancery court under Tennessee Code

Annotated § 4-5-322.

The chancery court reviewed the entire record, including Exhibit 15 to the hearing before the

ALJ, in which all three versions of Sanderson’s paper were directly compared to the source

materials, both cited and uncited. After doing so, the chancery court found as follows:

A review of the record shows that there is ample evidence that petitioner did plagiarize. This is especially evident from an examination of exhibit 15 to the hearing transcript, a comparison of the petitioner’s three versions of his paper and his original sources. There are numerous examples in which the petitioner took verbatim from a source and did not enclose the quotation within quotation marks or cite the source and page. There are numerous examples where he took an idea from a source and failed to credit the source. There are also numerous places where the petitioner paraphrased the source by simply changing a word or two of a sentence, yet he did not cite his source. Finally, the petitioner used a great deal of material from a master’s thesis by John Hutchinson, but nowhere cites the source. These all support Chancellor Snyder’s finding of plagiarism.

The chancery court found that there was substantial and material evidence to support the University’s

final order, and therefore affirmed the determination of the plagiarism. Sanderson now appeals the

chancery court’s decision.

On appeal, Sanderson contends that the University’s final decision was not supported by

substantial and material evidence because Chancellor Snyder failed to take the ALJ’s determinations

of credibility into account. Sanderson claims that plagiarism requires intent and notes that only the

ALJ had the opportunity to observe the witnesses and assess credibility. Because the ALJ found

credible Sanderson’s testimony that he did not intend to commit plagiarism, Sanderson argues that

Chancellor Snyder’s final order finding him guilty of plagiarism is not supported by substantial and

material evidence.

The University argues that Chancellor Snyder was not required to take the ALJ’s findings

of fact into account when he reviewed the initial order. The University maintains that the chancery

court correctly limited itself to reviewing only the final agency decision that was issued by

Chancellor Snyder, rather than the initial decision rendered by the ALJ. It also contends that there

was substantial and material evidence to support the University’s final decision.

Judicial review of the final decision of an administrative agency is governed by the Tennessee

Uniform Administrative Procedures Act, Tennessee Code Annotated §§ 4-5-101 to 4-5-325 (1991

& Supp. 1996). The chancery court may reverse or modify the decision if the rights of the petitioner

3 have been prejudiced because the administrative findings, inferences, conclusions, or decisions are

unsupported by “substantial and material evidence in light of the entire record.” Id. § 4-5-322(h)(5).

This Court reviews a final agency decision under the same standard. Humana of Tennessee v.

Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 667-68 (Tenn. 1977). Although not defined

by statute, courts have held that substantial and material evidence requires “something less than a

preponderance of the evidence, but more than a scintilla or glimmer.” Wayne County v. Tennessee

Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. App. 1988) (citations omitted).

Under this narrow standard, this Court does not review the fact issues on a de novo basis and cannot

displace the agency’s judgment as to the weight of the evidence even when there is evidence that

could lead to a different decision. Id. at 279 (citations omitted).

This case involves appellate review of an administrative agency’s final decision. Under the

Tennessee Uniform Administrative Procedures Act, an initial order becomes a final order only when

the initial order is not appealed in accordance with § 4-5-315 of the Tennessee Code Annotated.

Tenn. Code Ann. § 4-5-314(b) (1991 & Supp. 1996). The standard governing an agency’s review

of an initial order entered by an administrative officer or hearing officer is set forth in § 4-5-315(d):

The person reviewing an initial order shall exercise all the decision-making power that the agency would have had to render a final order had the agency presided over the hearing, except to the extent that the issues subject to review are limited by rule or statute or by the agency upon notice to all parties.

Id. § 4-5-315(d). Likewise, the University’s rules provide the following standard for review of an

initial order:

The Chancellor, in reviewing an initial order, shall exercise all the decision making power that he would have had he presided over the hearing himself, except to the extent that the issues subject to review are limited by law or rule of the University or by the Chancellor upon notice to all parties.

Tenn. Admin. Reg. 1720-1-.01(13)(d) (October 1996).

Sanderson argues that the ALJ, as the trier of fact, is to be afforded great deference as to his

determinations of the credibility of witnesses and the weight to be given their testimony. In support

of this argument, Sanderson cites Lettner v. Plummer, 559 S.W.2d 785 (Tenn. 1977). In Lettner,

alleged drug dealers challenged the police’s seizure of large amounts of cash from their home. Id.

at 786. An administrative hearing officer held that the cash was subject to forfeiture under the drug

control laws. Id. The chancery court affirmed this decision. Id. On appeal, the Tennessee

Supreme Court noted that the credibility of witnesses “is primarily a matter for determination by the

4 hearing officer.” Id. at 787. Because there was ample evidence to support the administrative

agency’s decision, the Court affirmed. Id. Sanderson also cites Landers v. Fireman’s Fund

Insurance Co., 775 S.W.2d 355 (Tenn. 1989), in which the Tennessee Supreme Court reiterated the

general principle that deference should be given to a trial judge’s determinations as to the credibility

of witnesses. Id. at 356 (citing Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn.

1987)).

The University argues that Chancellor Snyder was not required to defer to the determinations

of credibility of the ALJ in this case because Chancellor Snyder had the authority to conduct a de

novo review of the initial order. See Tenn. Code Ann. § 4-5-315(d) (1991); Tenn. Admin. Reg.

1720-1-.01(13)(d) (October 1996). See also Patterson v. Hunt, 682 S.W.2d 508, 515 (Tenn. App.

1984) (noting that a university chancellor had de novo review in issuing a final decision) (citations

omitted).

The University relies on United States v. Raddatz, 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed.

2d 424 (1980), in which the United States Supreme Court considered whether due process requires

a decision maker to personally observe witnesses testify. Id. Raddatz involved a district court’s

review of a magistrate’s proposed findings. However, the Court analogized those facts to

administrative agency cases and noted that the person or entity making the final agency decision

may, but is not required to, defer to a hearing officer’s findings. Id. at 680, 100 S. Ct. at 2414-15.

The Court concluded that due process does not require the decision maker to observe the witnesses

testify and that there is “broad discretion to accept, reject, or modify the [fact finder’s] findings.”

Id. at 680, 100 S. Ct. at 2415.

In addition, the University cites Gilbert v. University of Tennessee, No. 3 (Tenn. App. Jan.

31, 1983), perm. to appeal denied (Tenn. April 4, 1983), cert. denied, 471 U.S. 1050, 105 S. Ct.

2108, 85 L. Ed. 2d 474 (1985). In Gilbert, the University appealed the initial order of a hearing

examiner finding the accused innocent of a disciplinary charge. Id. at 1-2. The university chancellor

entered a final order reversing the findings of the hearing examiner and finding the accused guilty

as charged. Id. at 2. On appeal, Gilbert challenged the constitutionality of the university’s rule

permitting the chancellor to substitute his decision for that of the hearing examiner’s. Id. at 3. The

Court stated that “the law on this topic is crystal clear that administrative agencies are not bound to

accept the findings and recommendations of hearing examiners.” Id. at 5. Following Raddatz, the

5 Court held that due process does not require the decision maker to observe the witnesses testify. Id.

at 5-6.

In Lettner, cited by Sanderson, the decision of the administrative hearing officer was the

agency’s final decision, and the chancellor reviewed it under the standard set forth in Tennessee

Code Annotated § 4-5-322(h)(5). Lettner, 559 S.W.2d at 786. In this case, however, the ALJ’s

decision was only an initial order, and was appealed to the University Chancellor. Chancellor

Snyder reviewed the matter under the correct standard, exercising the same “decision making power

that he would have had had he presided over the hearing himself.” Tenn. Admin. Reg. 1720-1-.01

(13)(d) (October 1996). See also Tenn. Code Ann. § 4-5-315(d). Chancellor Snyder appropriately

utilized the definition of plagiarism given to the class by Professor Glenn, that is, “using an author’s

words or ideas without giving credit,” instead of the definition of plagiarism utilized by the ALJ,

which required an intent to pass off the works of another as one’s own. After reviewing the entire

record, including a comparison of all three versions of Sanderson’s paper with the source materials,

Chancellor Snyder issued the agency’s final order, finding Sanderson guilty of plagiarism and

affirming the penalty. As noted in Raddatz, supra and Gilbert, supra, Chancellor Snyder was not

required to observe the witnesses and was not bound by the determination of the ALJ.

Therefore, Chancellor Snyder’s order was the final order, subject to review by the chancery

court, and this Court, by the standard set forth in Tennessee Code Annotated § 4-5-322(h)(5), that

is, a determination of whether Chancellor Snyder’s final order was supported by “substantial and

material evidence in light of the entire record.” Tenn. Code Annotated § 4-5-322(h)(5) (1991).

After reviewing the record, the chancery court concluded that there was “ample evidence”

that Sanderson plagiarized. We agree. After reviewing the entire record, and comparing all three

versions of Sanderson’s paper to the source materials, regardless of whether intent is required, there

is clearly “substantial and material evidence” to support Chancellor Snyder’s finding of plagiarism.

Therefore, we affirm the decision of the chancery court.

6 The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution

may issue if necessary.

W. FRANK CRAWFORD, P. J., W.S.

DAVID R. FARMER, J.