Choosing the Appropriate Penalty for Academic Misconduct

Interpretation of the Word “Should”

The word “should” appears several times in UVic’s the Academic Integrity policies. In the penalty section, the policy writers have indicated certain types of misconduct “should” correspond to a certain penalty. 

The meaning of “should” is debated and sometimes misunderstood. Does it mean that a specific penalty must always be imposed? Or does it mean the decision-maker has discretion?

Consider the following examples:

  • You can pay taxes.
  • You should pay taxes.
  • Normally, you will pay taxes.
  • You must pay taxes.

In which of these instances are you required to pay taxes? When is it optional or a matter of choice? When simplified through a plain example, the meaning becomes clearer: “should” means strong advice or a recommendation, but not an obligation. In the tax example, you “should” (or it is recommended that you) pay taxes, but you are not required to do so. If you did not, you would not be breaking a rule.

Treating “Should” as “Must” in Academic Integrity Settings

The Academic Integrity policies promise that decision-makers will act fairly and students will receive outcomes that are appropriate to the circumstances. The policies do not promote a one-size-fits-all approach where unintentional or minimal misconduct earns the same penalty as deliberate or severe misconduct. 

There is a specific instance where the word “should” becomes particularly contentious: when a decision-maker issues a written reprimand letter to a student who has committed academic misconduct. The policy states that a decision-maker “shall make a determination with respect to the appropriate penalty, in accordance with this policy.” As part of their administrative law obligations, decision-makers must provide reasons for their decisions. The Supreme Court of Canada has stated that administrative decision-makers have a “responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which they arrived at a particular conclusion.” (Vavilov v. Canada (Minister of Citizenship and Immigration), [2019] 4 S.C.R. 653 at para 96.)

However, some decision-makers do not do this. They may write something along the lines of: “Following the Academic Integrity policy, you will receive a zero as a penalty,” without providing any further explanation — in short, they misinterpret “should” as “must.”

Where is the rationale behind the conclusion that a zero is appropriate? Is the decision transparent and intelligible? Is it fair?

The Ombudsperson’s conclusion is no. These types of decisions are unfair and ought to warrant an opportunity for the student to appeal and have an appropriate penalty imposed with reasons provided. When this unfairness occurs, students often feel dismayed that their individual circumstances were not considered or that a one-size-fits-all approach was applied. This practice is not in keeping with the spirit of the Academic Integrity Policy, nor with the equity and fairness commitments the University has made to its students.

Next Steps for Students

Contact the Ombudsperson. The Ombudsperson is available to discuss your situation, inform you of your rights and responsibilities, and guide you toward a fair outcome.

Know your rights. If you experience an unfair process where a decision-maker did not explain the rationale behind their decision, this may constitute grounds for an appeal. Including this article may assist the appeal body in understanding the Ombudsperson’s position on this issue.

Next Steps for Faculty

Understand your duty and when you are required to make a decision. If you have determined that misconduct occurred, you must determine the appropriate penalty, and you must provide written reasons for that decision. Contact the Ombudsperson for a confidential consultation about an individual case or for general discussion. 

Consider the following:

  • Have you collected enough information to properly determine the appropriate penalty?
  • Are there reasons to depart from the recommended penalty in the policy?
  • Are there particular aggravating or mitigating factors that support a different penalty?
  • Have you communicated, in a manner that is transparent and intelligible, the basis on which you arrived at your conclusion? 
  • Consider that reasons that only justify a decision with “because the policy said so” will likely be appealed and may be overturned. This misstep causes unnecessary stress for the student, uses scant resources inappropriately, and does not discharge your duties as an administrative decision-maker.