chernoff reported plagiarism and her subsequent dismissal without appeal as well as his grant for summary judgment on the issue of damages for tuition and living expenses as well as the orders granting defendants motions  a student attending a private college or university has an entitlement not to see suspended without could cause a breach of contract will be found where the school acted in an arbitrary and capricious manner where the student can show that there was no exercise of academic judgment or that the adverse action was taken on a rational basis mr burnet peels her central argument on appeal is that there are material facts that are in dispute in this case that precluded summary judgment primarily whether she plagiarized report of mr part of her plagiarism and the following dismissal were without rational basis in response defendant's initial motion for summary judgment mr turner raised both of these questions she noted that the evidence did not show that she plagiarized there was simply the turning dot com report and explained in our brief here to this court all the turnitin dot com guys this flag material is similar to each aerial found in other sources other papers on the reported it to dr my and several other faculty dr mike claimed to have done some independent investigation but he was unable to specify what he looked at when he looked at it how he looked at it in short was able to produce no to comply with protocol because only a few pages skewed the results and the number that came out but i would also point out that that raises some of the other questions and arguments that we made that dr davis and explanation of why she therefore suspect players of similarly that's the want to academic section where is the rest of the paper is about the students clinical experience an internship and it's more personal in what he says so one would expect the writing styles to differ between the two again dr day's explanation of her report is that she suspected plagiarism because mr koenig did exactly what she said he ought to have done and that sufficient for a jury to conclude that between that and the absolute com i don't know that i can speak on that generally i think that it's used in other universities certainly other professors in the chicago school have used it dr davis and not for quite some time she didn't even have a lot going for it so she pulled it out especially mr perna but it's clear and defendants actually even agree in their briefs and motions in the record that turning back home you can't just take that number declare plagiarism and pass it on that's really not what the program is used for it simply flags text it's that you based on other material which expect in academics that there's going to be citation or reference to other ideas who does that mean and you see that distinguish it doesn't evaluate whether the citations she included were correct it simply says there is some similar material in this source over here and so without doing that investigation that further evaluation one can't conclude anything from the number if you will i don't know you and i don't know anything about this when we talk about something that's original that would be confined to what a person experiences and some other things as opposed to a reference to expert somewhere else which we learn from them i guess that would imply that somebody copied something word for word as opposed to again it has the same meaning or lack thereof as the ninety two percent with respect to a plagiarism conclusion and in fact i think that the report for the entire paper makes clear what turning dot com can't do it flagged the title of the running title of her paper is plagiarized it flagged a seventeen years old as a plagiarized phrase it flagged the chicago school as a plagiarized phrase or at least as a similar flurries and so i think those examples make clear that you can accept a simple flag i turn it in dot com as evidence of plagiarism it's going to flag as as defendant's own witnesses agreed similar phrasing phrasing that you can't say any other way much like legal four five six there are only so many ways that one can say that one is not stealing somebodies idea to list the same six words in a row in many cases if there's a citation there that sufficient for you know whether there need to be quotes or not may be debatable that they the point is that turnitin dot com has a program can't can't make those judgments can't make those decisions and so in relying on it without any further investigation that's an absolute abdication of any academic judgment which is by definition i think it also is important that what the policy of the chicago school is with respect to plagiarism is dispute it defendants here assert that any amount of plagiarism by which they seem to mean any similarity index and turn it in dot com over zero annie machon text is conclusive evidence of plagiarism the problem is there are witnesses testified that that's not actually accurate at all nonetheless the chicago school agrees that they rely on the turn in your dot com similarity index in making their determinations of plagiarism which raises the question of what is that threshold what number is a problem if it's not one for anything over zero when do we hit a concert what numbers h this turnitin dot com selected is sort of what's that's not the record you know i'm sorry i don't know that is usually but they have agreed that they use it and that's the that is at least the basis that they use for mr perna certainly it was used in i believe dr perry of his class it's noted in the diversity seminar syllabus which notably is provided in drafted by the program not by a specific professor and with respect to that syllabus that syllabus is one that very clearly outlines the threshold similarity index of twenty percent for the whole paper is when you get referred for plagiarism and that policy is side by side with the academic to solve dishonesty policy of the school so it's a reasonable assumption that those are not in conflict that those complement each other so it was her whole paper so the ninety two percent based on a single section i think is approximately a page and a half the section that was it where the students were required to review the research of the academic theories in the field that they were attributed one percent or last each individual source i think there were more than twenty sources that noted some ip addresses and it wasn't even clear that they were actual sources but there is testimony in the record by  witnesses that it is very common for any student paper to come up with results like that than any student paper is going to have similarities of about one percent with a number of sources and again they may very well have cited properly they may have cited inappropriately they may have cited to a different source nonetheless appropriately but one that turned it in didn't select as evidence with respect to what the policy is really the only evidence in the record when it becomes clear that any similar tax is not the policy that any turnitin dot com index over zero isn't automatically plagiarism some possibility in there that she was treated differently than others similar school mr parnham makes that assertion and i think the evidence that she presents in this record with respect to that that twenty percent was the threshold so mr parnham elites that she was treated differently but the evidence that she presented as centered around the policy use every student have presentation run through it was only have to be some kind of suspicion before you do that to us you school so i don't know what the answer is with respect to dr davis and other than we know that she didn't run and the other students paper through the program she hadn't used it in so long that she no longer had a password she had to go get it the password especially from i t to utilize it and that all she offered with respect to suspicions is that mr koenig did cite in that section and that her sort of writing argument is that these material facts preclude summary judgment very least they entitle mr pearn to proceed to trial because of the evidence in the record there is sufficient evidence for a jury to conclude that she did not plagiarize that she was not referred because she violated the policy in fact she was referred despite the fact that she think lucidly didn't violate the policy because again any disputes must be resolved in her favor and that would be sufficient to show that these actions were without rational without further explanation and then she appealed the decision so she during her appeal discussed dr davis and targeting of her the fact that she was singled out for  answering her paper in to turnitin dot com dr davidson had not followed protocol in that respect she had typed a section in she had to be instructed to do the entire paper and then she referred her despite the fact that she didn't meet the threshold as well as pointed out some other irregularities with respect to the student affairs committee evidence they were willing to acknowledge or take under consideration as well as as defendants pointed out the number of  professors or faculty on the student affairs committee the policy for the chicago school requires that students be notified of who will be sitting on the committee in advance mr parnell was notified and the ultimate committee differed from the people that she was given  incident with respect to bullying harassment and a referral to a disciplinary committee on the basis of improperly on the basis of race as she had that was a pending lawsuit at the time that these events occurred was a law see the doctor gave some was aware of certainly that d mudd and the other faculty were aware of because they were intimately involved in the original incidents that spurred the lawsuit dr david to be clear dr hasan was not involved in the original incident that's for the lawsuit as far as i can tell the problem of the earlier problem she had with respect to the instagram it's sure just iraq had dismissed her claims for tuition and living expenses finding that she which isn't actually accurate she testified her deposition that she took out student loans which would be of course her obligation for some of those expenses so we contend as a first point the judge struck really was not proper to grant summary judgment on grounds not raised by defendant nonetheless mr printed did not concede those claims what she conceded was that the academic development plan after it was selected as a sanction wasn't developed properly according to policy that's an independent claim for whether she ever should have been referred or sanctioned for the instagram post in the first place that's the same with the delay of internship she continues to challenge that she should never have been referred or sanctioned for the instagram posting and if she's never going to hurt or sanctioned she wouldn't have had any delay in her education she wouldn't have had any additional expenses and so the fact that she conceded that the sanctions as chosen that she can't challenge whether those sanctions were implemented appropriately doesn't mean that she doesn't still have a claim for damages i'm getting quite close to the end of my time if the court doesn't have any question that the two reserve quotation marks we've heard there's a case in the news recently about a comma this case is about quotation marks and what the plagiarism policy of the chicago school is and counseled and share that with you it's in  judge perry's decision plagiarism is intentionally or unintentionally representing words ideas or data it goals than examples of plagiarism clue but are not limiting to limited to capping the work of another verbatim without using quotation marks and also it says further further a single example of failing to use quotation marks appropriately may be considered plagiarism so they ask the school policy and that's our starting point for where we are today so mr perner it was a student in the master's of clinical psychology program she wanted to be a therapist and when you attend graduate school you have certain obligations to meet their academic standards that you have to meet and the schools obligations to put it with all due respect it's not the obligation the council outlined i'm aware of no case law that's been cited either disc district court or here that a student cannot be suspended without good cause we're in a private setting here we're not talking about misconduct we're talking about academic discipline and what the supreme court has so i can't speak to the suspension without good cause because it doesn't go to the standard that we have here you have to look as to whether the decision goes beyond the pale of reasoned academic decision making and that's to united states supreme court as well there again if you were given the statement right and that that's what the states you know rates is which is one of the state's case one of the state cases actually cites the supreme court in the amish and that's the case that counsel our other counsel in this case decided as well so i think that until what i just heard i was going to say my argument was going to be i don't think there's any disagreement as to what the and i think the state and i want to make sure that i'm not confusing what you mean my state i mean there may be a different standard for public schools if that's we're talking about by state in for private schools the state cases kerner is a resident of ohio we never had a dispute their choice of law is a real marla right and before we get to the record one of the other things that i want to mention is i think what's really important is this is a case about what's aris bill in france because when i look at the arguments that mr berners counsel has made throughout the case she's talking about every conceivable and friends that could be made with a lot of speculation involved and that's not the standard for summary judgment so the first thing that i want to talk about is whether judge dear was correct in finding that the decision to dismiss mr proner for plagiarism was nat made in an arbitrary  no quotation marks there it looked different it didn't look like her writing she didn't run it through turn it in right away and that's a rarity dr davidson as an adjunct in and i think that's important to the extent that she only knew about mr printers lawsuit generally and i and i'm i'm not internet was with google's the one that i use and what she did is she took let's say the sentence that the lazy brown fox jumped over the ground dog she typed it in and this says if you're using a paper and you're using references you the student must turn you started in first before you submit it to me the professor that's completely different from anything that we've heard about generally they're required to use it before they turn a paper on it depends on the class and specifically in the diversity silvis which was doctor present syllabus where it talks about it's an automatic referral if there's a twenty percent similarity index if you're if you read that paragraph it says if you the student are using any references you must turn you must use turnitin answer that with a paper you can submit the paper to turn it in as many times as you want but i'm going to consider the first thing you send me your regional work and if what you give me comes to a similarity index of at least twenty percent it's an automatic referral to the a safety so she's talking about  specific programs but what's also important dr present specifically testified yet that's not the policy of the school she said you look at the similarity and x and you always have to look at context and dr davidson said that and dr much that there and that's where this ninety two percent comes in and i think we have an understanding this paper that we're talking about is that the clinical competency exam and i think is judge you would said everything else is about your experience with the client and then you've got this one section the case conceptualisation section where you apply the theories ok and that's where the ninety two percent came in and that was the concern not the ten percent because most of that other put the rest of the paper was the students reflection and the students reporting on what she learned from her client and the client's family so i don't see that as an issue so and i don't see anything suspicious or wrong with  saying now run the whole paper through turnitin dot com i think it's good practice i mean let's look at the whole paper due to caution and if i i don't know i believe the school probably pays because because it is a software program i mean i know that i just can't go on my computer and bring up turn it in because i don't have access to it because i've not purchased that software so that's my guess like if you were to go back and read my  turn it on i don't think you could access it unless the court for example that may be why dr davison used google first because there was a free service movement and so she couldn't go on to turn it and if you didn't have access to it and yes because you know jim it could be that i don't know ok but again i don't think there's any nefarious in dr mudd saying run the entire thing through ok dr mudd said said he did do some independent verification so he may not have remembered you know this was a long time ago this was in two thousand and fifteen and he was opposed in two thousand and sixteen or two thousand and seventeen but he you know but he but he remembers doing it and remember it's a mandated referral in the handbook for plagiarism and that's right because you know it's it's it's integrity it's academic dishonesty and the school the school policy is strict i mean i'll admit that i mean it says you know plagiarism is intentional in the words of the expert this is an impossibly strict policy this is the school's policy and that's not been changed you know there's i mean get that's not that's not being attacked here there's nothing in the handbook th talks about a percentage we look at what turn it in comes back with and you look at context and the referral was made counsel didn't nat to the polls anybody sitting on the f c c so there is nothing in the record that played to show was discussed was discussed in improperly that they didn't discuss context and that was their reiss but without their at they can't raise an issue of material fact as to why the decision was arbitrary  and made a bad thing she hasn't even submitted the dismissal letter she quotes to it at one point but it talks about her being dismissed for academic dishonesty which is the plagiarism and i think i think all this about the turnitin similarity index i mean is a smokescreen this is the standard the school used they looked at context mr pearl went to the f c c hearing she admits that she was there she admits that the she had the opportunity to present ok even if judge gerald is right on the plagiarism that there wasn't a genuine issue material fact there's a genuine issue of material fact as to whether they considered my prior discipline my a t p in my internship i've been trying not to use your culture here when i talk about some of this again and that's what what's important is because we have nothing on the record whatsoever that suggests that any member of the f c c he had knowledge of  if they had any knowledge of the lawsuit and again it is a conceivable inference that they did it sure but is it a reasonable inference no it's not so i think that next up the plagiarism claus from the extra year of school which is for the internship really that's out there are no other damages available to plaintive with respect to this referral to the generally a department decision the department discusses it so it's not you know and then for certain things there's a mandated referral but for example dr davidson could not have made the s a c referral she was required to different people in generally if actually if you've got any involvement in the matter you're off so you don't generally there's not somebody from the department you know for your own department sitting on the us and that's in the materials but i believe and again it's not in the record i'm sure and you what i know for representing them and the usually they may sit for two year terms some people stay longer so again i can't really i don't i can't tell you which itself cited in illinois case between a student at a private college and it very much noted that that was based on the contractual relationship so it was not related to say a constitutional issue and also i'd like to address the statement that this is about a single example of a single example of failing to use quotation marks all know that that's the first that we've heard that quotation marks plays a role in this that was not something raised in the record or prior but i'll also note that the syllabus for the two classes that the chicago school presents itself leaves off quotation marks when it quotes the a p a code of ethics there's a single quotation mark missing so if that is indeed the chicago school's policy then they're committing plagiarism in their i suspect that that's not actually their policy council also noted that dr davis in re and some sentences what exactly through google there is no evidence of what she found she didn't indicate that there were same exact quotation from other locations prior to going to turn in dot com so you don't believe that that contravenes what mr parnham has presented and we do have testimony with respect to the referral and what was said during the hearing from mr parnell herself and she was given notice of the referral and involved of course in the hearing and lastly i think counsel confuses here again the similarity index with plagiarism and proceeds in her argument under the assumption that mr perna did conclusively