So holds Swenson v. Bender (Minn. Ct. App. Apr. 28):
[A] fiduciary relationship cannot arise even out of a long, close, and trusting relationship when the purportedly trusting party “should have known the [other party] was representing adverse interests.” Given Bender’s roles as adjunct instructor at Capella and as member of the committee assigned to assess Swenson’s academic paper, Swenson should have known that Bender had an independent obligation to Capella that at least paralleled, if not superseded, her obligation to Swenson as it regards the dissertation’s subject matter. Bender’s role prevented her from being bound to act only for Swenson’s benefit on all matters.
This sounds exactly right. Bender might not have been without fault; according to a Capella University committee, she "acted unethically in her student-advisor role by developing a personal relationship with Swenson, and [the committee] found it impossible to discern which parts of Swenson's dissertation were her own work and which were Bender's." Swenson also alleged that Bender had misappropriated Swenson's intellectual property, but the trial court rejected that claim.
But that hardly says that there should be a special level of fiduciary obligation imposed on faculty members, besides the standard obligations imposed on everyone (e.g., don't steal others' stuff, don't defame them, and so on). It would be bad to conclude that dissertation advisors are primarily supposed to act in their students' interests, as opposed to the interests of maintaining scholarly standards.
And it would be especially bad to conclude, as the trial court apparently did, "that Bender's accusation of plagiarism" -- Bender had accused Swenson of committing plagiarism within Swenson's dissertation -- was itself a legally actionable breach of fiduciary duty that Bender owed to Swenson. As the court of appeals pointed out, the accusation "had merit," and is precisely the sort of thing that professors should allege when there are grounds for the allegation. And even if such an accusation were groundless, any legal remedy should be the standard defamation claim available without regard to the relationship between the parties, not some special fiduciary duty claim.
UPDATE: Whoops! I initially wrote "Swenson might not have been without fault," where I meant to say "Bender might not have been without fault"; and, on reflection, was less than clear in the rest of the discussion, too. I've revised and expanded on the material above; hope it's clearer now.
"[Benson] might not have been without fault; according to a Capella University committee, she "acted unethically in her student-advisor role by developing a personal relationship with Swenson." Developing "a personal relationship" with an advisee is "unethical," when it is not a sexual one or otherwise clearly improper? Was it "unethical" or "improper," especially on the advisor's part, that they were discussing joint business undertakings, in particular exploitation of the thesis work, while the thesis was still being written?
What can be expected of for profit "universities," and what value their degrees? Is their an inherent conflict when a school purporting to be a "university," not a trade or vocational school, operates as a for-profit? Does the fact that it is an internet operation make it more suspect, or is that just my prejudice?
What are a student's property rights in their dissertation work?
Perhaps I just don't understand the legal definition of fiduciary duty. But plagiarizing a student's work seems to me to be a violation of the trust between a student and a professor, as well as a professor and her university. Is the idea that because BOTH the university AND the student trust the professor to not plagiarize, NEITHER the university OR the student can have legally actionable breach-of-duty claims against a professor who does?
My Ph.D. dissertation is copyrighted to me, and that's according to uni8versity guidelines. I was under the impression that this was generally true.
What are a student's property rights in their
dissertation work?
IP in thesis work belongs to the student, assuming that the thesis properly lays out which other work (including that of his advisor) the student's work builds on. However, when the student's work is supported by a grant to the institution, the grant's contractual provisions apply. With Federal grants, e.g., the university keeps the IP, & the student typically signs over IP rights to the university as part of his or her employment contract as a research assistant. Research contracts between companies and universities sometimes give the company any IP resulting from work supported by the contract. If a student's thesis research is supported by such a grant, the IP then goes to the company.
The Noble Prize for the discovery of insulin was bestowed on Banting and MacLeod, but MacLeod, head of the lab, played a minor role. Best, not MacLeod, should have been the one to share the prize with Banting.
Why exactly does EV think the trial court should have steered clear of the plagirism claim? Because it wasn't a matter of fiduciary duty, but might have grounded in some other legal theory? (I once found myself embroiled in a nasty fight with someone I had thought a friend over authorship and publication of a manuscript. When he maligned me in a letter to the journal letter to stop me from publishing my effort, I sued him for libel and he gave it up.)
Pretty much the same thing as at any other university, I'd expect. "Not-for-profit" is a tax designation, not a business plan. Every university works to maximize its revenue streams. That's why schools with multi-billion endowments still charge students $45,000 a year, knowing that the students' futures will be crippled by the debt they accumulate. No payday lawyer on earth makes as much off its customers as our most expensive universities.
At for-profit firms, shareholders get the profits. At non-profit universities, administrators and faculty (the managers) get them. If the goal is to provide generous amounts of money to fund faculty scholarship to make the world better, the nonprofit model is better. If the goal is to give students the best possible education at a reasonable price, it's likely that for-profit institutions would do a much better job.
Well, of course, and every case needs to be decided on its facts. My comment was more an expression of general frustration towards the way modern practitioners seem to want to convert EVERYTHING into a fiduciary relationship.
Common fact pattern: some stockbroker calls you out of the blue to try and talk you into buying a stock. If you agree, and the investment turns out poorly, can you argue that the broker had a fiduciary duty towards you? This comes up a lot, even though the argument is little more than "I trusted him!"
Anyway, the most brutal exploitation of doctoral students has zip to do with stealing their brilliant ideas, of which there are of order zero anyway. It's the fact that they work fiercely long hours for absurdly miserly wages -- of order 25% of open-market rates for people with their skill-sets -- not to mention the substantial opportunity cost of five to eight years of real-world working experience, all under false pretenses: that they are obtaining some kind of union card that will guarantee them glamorous future employment. It is basically the 21st century equivalent of the contract labor deals that US railroads did with immigrants in the 19th century Come work for a pittance for X years, we'll pay your passage, and when you get out you'll be in the Land Of Opportunity!
If for-profit educational enterprises give more value, then why don't they eat the "non-profits" lunch and occupy a much greater part of the higher education firmament? It's just prejudice that favors "non-profits" over "for-profit" institutions of higher education? I don't think so.
EV, thanks for the clarification regarding the calling the student out for plagiarism and the alleged breach of fiduciary duty. Will have to read through the decision to see who was accusing whom of exactly what. Might it be a breach of fiduciary duty or some other actionable claim if the advisor was appropriating the student's work, claiming it as her own? Would that one be difficult to sort out given the back and forth between an advisor and advisee as the work progressed?
But now that I think of it, I'm not sure I wouldn't argue that there should be some sort of duty. Your parade of horribles is baseless. Traditional fiduciaries like lawyers, trustees, and guardians have no obligation to lie or to cater to every whim. They are entitled to exercise their professional judgment, even when the beneficiary disagrees. But what they must do is put the beneficiary's interest ahead of their own personal interests. This doesn't strike me as a particularly onerous standard for a faculty member. A faculty member who takes deliberate advantage of a grad student whose work she is supervising, for the personal benefit of the faculty member, is doing something wrong. I'd probably agree with you that it shouldn't be turned into a legal claim. But it's a much closer question than I think you suggest.
They are, in fact, growing rapidly; the University of Phoenix now has about 400,000 students, and there are four or five for-profit law schools. And this is in spite of generations of legal roadblocks and the disadvantages of competing with government-owned and nonprofit competitors.
For-profits, unlike their government-owned and nonprofit competitors, must pay property tax on their campuses and income tax (35%) on the revenues they take in above costs and on their investment income. They must build buildings with private capital not raised by tax-free bonds or tax-deductible gifts. They do not qualify for the tax-free grants from the government, private business, and nonprofit foundations.
They operate at a vast cost disadvantage. Yet they're growing much faster than nonprofits. Which leads me to believe that students who aren't interested in prestige or football are finding them a better value.
As a lawyer, I have a fiduciary duty to my clients, but that doesn't mean I need to waive my fees! Having a fiduciary duty in certain respects does not foreclose the notion of dealing at arm's-length, albeit fairly, in other respects.
If someone's CV listed a doctorate from Capella University, I would be inclined to dismiss it as a not very meaningful credential, most likely a high school teacher's way of getting paid by their public school employer, who doesn't know from one degree-granting institution to another. Just uninformed prejudice on my part? Internet-based education, which enables much of the for-profits business model, is the wave of the future and will cause traditional schools to wither on the vine?
As for thesis advisers screwing (figuratively speaking) the students they advise, I imagine that must be relatively infrequent. And there must be some limits on how badly they can screw (figuratively speaking) their advisees by appropriating student work, whether through taking credit for what was truly a student's findings, plagiarism, getting a patent in their name rather than the student's, etc. No?
My graduate institution requires graduate students to sign away rights on any patentable material that arises from their graduate work. I'm not sure if legally this strategy depends on being paid a stipend, on using university resources to conduct the research, on simply requiring students to sign the form, or on some combination of these things.
I wonder how often commerially valuable results come from a student's ideas and work, and whether there have been instances of students keeping their ideas or work to themselves until they can keep the value of it rather than surrender it all to the university. Bill Gates, who famously dropped out of Harvard after his freshman year, comes to mind, though I don't know if he had anything patentable in his head at that point or if he feared sharing such with faculty, so went off on his own. There has been contention over credit for the creation of Facebook (copywright stuff?), but that was between Harvard students, not between student and faculty supervisor.
I never really thought about it before, but the contrast with most university's copyright policy is interesting: faculty-authored books can generally be copyrighted by the individual faculty (or their chosen publisher).
Why? Are you doubtful about for-profit science research and commercialization (see, for example Pfizer, Bell Labs et al.)?
I've had years of experience with, and done years of research on, both for- and non-profit institutions of higher education. In general, the for-profit ones are more professional, more accountable to students, better managed, more efficient, better priced, offer better service, and are far better at job placement.
All universities used to be for-profit, and many are still a hybrid of non- and for-profit. This changed when the U.S. started levying, for example, significant business and property taxes. The universities, and other institutions, then made special pleadings for exemptions from those taxes -- thus the "non-profit" status. "Non-profit" is actually a misnomer. Many, e.g., the Harvard Corporation, have significant "profits," i.e., roughly net after operating expenses (e.g., Harvard Corporation FY '07 netted about $7 billion). These institution should really be called "non-tax paying" institutions.)
Yes. The curricula at, for example, Capella and U. of Phoenix, are designed and taught by recognized academics who know their subjects and who, more importantly, know what employers want employees to know. And, if this matters to you, places like Capella and the U. of Phoenix are accredited by the same bodies that accredit the "non-tax paying" institutions.
I don't know about the withering, but it is significant that the non-profits are scrambling to catch up with the internet model -- which was created and proven successful by the for-profits. A minor point: many of the for-profits offer in-person education. In fact, there are for-profit, in-person junior colleges.
Re for-profit medical schools...Paul Starr's book The Social Transformation of American Medicine is an extremely well-done account of how the medical profession has changed from its earliest beginnings in this country up until more recent years. I think that I found quite amusing was that back in the 1800's, medical students paid their teachers directly for each class/lecture they attended and they could pursue a one- or two-year course of study before launching themselves professionally. There were perverse consequences to these arrangements, those being that faculty couldn't make it too difficult for students or they would be disfavored, not get as many students, and hence lose out on income, and most students would elect to go out and begin earning money rather than stick around for a second year of learning. That's why we have accrediting bodies and licensure to enforce standards.
Also, some US medical schools of great renown have encountered financial difficulties in recent years as the economics of medicine have changed. Some have "sold" naming rights (Pritzker-Chicago, Geffen-UCLA, Weill-Cornell, etc.) In PA, a hospital in Pittsburgh, Allegheny General got amibitious and took over and merged Philadelphia schools (Women's and Hahneman) before it's own finances got shaky and it retreated. When I went through school and training, I never imagined such econommically-driven changes affecting medical schools themselves, least of all the more venerable, like the NYC schools which have quasi-mergered. But heaven forefend that Pharma, Pfizer or any of them, will ever operate proprietary medical schools.
And what bearing that Pfizer, Bell Labs, Xerox, or other commercial enterprises are capable of great research, mostly "applied," but sometimes of basic nature? How does that relate to the mission(s) of universities? And if it did, why wouldn't they have supplanted non-profit schools long ago, at least in the sciences? I think there must be fundamental differences.
(A?) Capella and the U of Phoenix don't offer a full array of courses, do they? They aren't turning out physicists, biologists, chemists, mathematicians, engineers, etc., fields that require laboratory work and supervision, are they? (I don't know, so feel to correct me if I am wrong the range, depth, and quality of what they offer, especially the quality.)
How about their alumni, any that are achieving great heights and contributing to the reputation of their alma maters? Anyone(s) we might know?
Responses later to your other points.
Just for the record, there have been for-profit medical schools for years down in the Caribbean. One school, Ross University, is owned by DeVry, Inc., and has (according to Wikipedia) over 5,000 graduates practicing in all fifty United States and Canada. The first American for-profit medical school opened in Colorado last year. It's for D.O.s, but only because the AMA refuses to accredit for-profits.
Good question. I'm not sure. But Ross is accredited by the "Dominica Medical Board," which I assume is their version of the AMA. And apparently states allow graduates of foreign medical schools (which obviously would not be AMA-accredited) to sit for the state medical boards, while they require AMA accreditation of U.S. school. I'd guess this is probably because there aren't enough U.S. medical school grads.
Grad school is the last form of indentured servitude.
Depending on the school, and the advisor, it can be very worth it. In my field (chemistry), the money I'll be making with a Ph.D. more then makes up for the $22,000 I was making as a teaching/research assistant. The connections and networking were also worth it.
I don't read the decision as indicating that no academic has a fidiciary role with trespect to a student. Indeed, the very stress the opinion places on the lack of formal advisory role Bender had and the purely gratuitous (at least from a university role point of view) character of her advice and relationship, tends to suggest that in a case where an academic was formally obligated to offer a student advice and guidance, the outcome might be different.
An attorney is an officer of the court and has independent duty to the court. The attorney cannot act on the client's behalf in all matters, but is responsible for upholding the court's standards even when those standards go against what the client considers to be his or her interests.
Does the existence of this third-party relationship prove the attorney-client relationship is not fiduciary in Minnesota?
It was once thought that the advisor's duties to uphold standards or report plagiarism and the like were in the student's interest, because a student who plagiarizes cannot learn (and whose dissertation is worthless has not learn) and the academic's responsibility is to foster the student's educatoin. An academic who failed to do these things would be violating the fiduciary duty.
Only in an environment where the academic relationship has no organic character and one has to search among a set of business relationships to find an analog could one come up with an idea that upholding standards represents an adverse relationship.
In such an environment, of course, the student's goal is not to learn but to purchase a credential as a sort of franchise in a brand, and the university, who must merchandise the franchise credential with due regard to a new franchisee's affect on the brand, has a competing duty to ensure the maximum amount of product is moved without unduly diluting the brand and hence the premium the merchandiser can monetize from the brand image. In such an environment the academic and student's real interests are indeed at arm's lengths.
The academy was supposed to be different. Have we really come to a world where a thousand years of academic history, and what academics once thought was their mission doesn't even get so much as a mention?
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