Malkin, Jewish World Review claim “Kagan cover-up,” plagiarism “whitewash”

Conservatives absurdly claim “Kagan whitewash” of plagiarism suggests she'll be a “liberal activist judge.” In a May 9 post on her personal website, Michelle Malkin accused Kagan of a “cover-up” and linked to a May 5 Jewish World Review article headlined "Kagan Whitewash," which reported that in 2004 and 2005, Kagan “treated two liberal law professors with kid gloves when they were busted for plagiarism. Her chicanery was so blatant that even a leftist academic said she should be fired for her 'whitewash.' ” While the article acknowledged that Kagan did in fact investigate the matter, its suggestions that the findings were motivated by politics and that the incident indicates Kagan will be an “activist” judge are completely baseless. From the article:

As Dean of Harvard Law School in 2004 and 2005 she treated two liberal law professors with kid gloves when they were busted for plagiarism. Her chicanery was so blatant that even a leftist academic said she should be fired for her “whitewash.”

Kagan's essential absolution of both professors has been virtually unnoticed in the flood of stories about her possible Supreme Court nomination this year and in 2009 when she was considered a top candidate to replace liberal Justice David Souter.

But the way she handled professors Larry Tribe and Charles Ogletree, when they both were caught swiping the words of others, seems to violate basic principles of fairness.

She let the professors off easy for the kind of offense that for which any Harvard undergraduate or law school would have been suspended if not expelled.

As the Harvard Crimson wrote after Kagan and Harvard president Larry Summers declined to punish Tribe, “the glaring double standard set by Harvard stands as an inadequate precedent for future disappointments.”

It also could say a lot about Kagan would behave on the bench. Through inaction and disingenuous statements that disregarded Harvard's own disciplinary policy Kagan exonerated Tribe and Ogletree of any malfeasance.

In other words, like a good liberal activist judge, she ignored precedent and the plain meaning of relevant texts to create an outcome that struck her fancy.

In fact, Harvard investigated plagiarism allegations and found no deliberate wrongdoing

Harvard Law Record: Internal investigation into Ogletree allegation found incident to be “an honest mistake.” In a September 2004 article, the Harvard Law Record reported that six paragraphs of Harvard Law professor Charles Ogletree's book, All Deliberate Speed, were found to be identical to Yale Law Professor Jack Balkin's book, What Brown v. Board of Education Should Have Said, but that Ogletree was “cleared of intentional plagiarism.” The article reported:

An internal law school investigation led by two former Harvard officials found the plagiarism incident to be an honest mistake. HLS Dean Elena Kagan appointed former Harvard University President Derek Box [sic] and former HLS Dean Robert Clark to investigate the matter. The investigation involved reviewing documents and interviewing research assistants in an attempt to single out how the error occurred. The investigation yielded a finding in agreement with Professor Ogletree's version of events.

Derek Bok, head of Ogletree investigation and former Harvard president: “There was no deliberate wrongdoing at all.” In a September 2004 article, The Boston Globe reported that “Bok characterized the borrowing as an accident,” and quoted him saying, “There was no deliberate wrongdoing at all.” From the article:

Ogletree said yesterday that Balkin and Kagan both received anonymous letters pointing out the use of Balkin's writing, and that Balkin called Ogletree to alert him. “He was distressed and said 'you should be aware of this.' I was shocked and immediately started to take a look at it,” he said.

Kagan asked former Harvard president Derek Bok and former law school dean Robert C. Clark to investigate. Based on their report, Kagan deemed the case “a serious scholarly transgression,” according to [Harvard Law School spokesman Michael] Armini.

Reached yesterday, however, Bok characterized the borrowing as an accident. “There was no deliberate wrongdoing at all,” he said.

“It was a case of publishers insisting on a very tight deadline because they felt they had to get a book out just in time for the 50th anniversary of Brown v. Board of Education,” Bok said. “He marshaled his assistants and parceled out the work and in the process some quotation marks got lost.”

One of Ogletree's assistants inserted the quote from Balkin's book in a draft of “All Deliberate Speed,” with the idea that it would be reviewed and summarized by another research assistant, Ogletree said in his statement. The material was attributed to Balkin, but the closing quotation mark was dropped.

A second assistant inadvertently deleted the attribution “under the pressure of meeting a deadline,” according to the statement, and sent a revised draft to the publisher. Ogletree said he reviewed the draft but did not realize the passages were not his own.

“It was an error made by one person, but I take full responsibility,” Ogletree said yesterday. “There is no one to blame but me.”

Kagan: “Academic integrity is crucial to everything we do at Harvard Law School, and I feel very strongly about upholding those principles.” In a November 2004 article, The New York Times reported on the plagiarism charges, writing that Kagan said “she concurred” with the panel's findings on Ogletree that his error was “a serious scholarly transgression.” From the article:

At the behest of Dean Kagan of the law school, Derek Bok, the former Harvard president, and Robert Clark, the former dean of the law school, examined Professor Ogletree's book. Dean Kagan said publicly that she concurred with their finding: Professor Ogletree's error was “a serious scholarly transgression.” Professor Ogletree said he had been disciplined, but neither he nor Harvard officials would be specific.

[...]

“Academic integrity is crucial to everything we do at Harvard Law School, and I feel very strongly about upholding those principles,” said Dean Kagan, who declined to talk about either case.

NY Times: "[S]cholars say the increasing reliance of scholars upon research assistants in the quest to publish increases" errors. In the November 2004 article, the Times further reported that "[s]ome scholars argued that Professor Ogletree's statement was a public humiliation more severe than any punishment that could be meted out to a student." It later added: “Along with the growing use of the Internet for research, some scholars say the increasing reliance of scholars upon research assistants in the quest to publish increases the risk of the sort of academic error made by Professor Ogletree”:

While some scholars see lapses like Professor Tribe's as an erosion of academic standards, others view the Standard's article on Professor Tribe -- along with another one that suggested Professor Ogletree's tenure should be revoked because of his error -- as an ideological attack.

''It's payback time,'' said Stephen Gillers, a professor of legal ethics at New York University Law School.

Professor Gardner said that while he did not know the specifics of the two cases, his concern about the underlying issues had prompted him to release a ''statement about plagiarism.''

''When norms of scholarship are violated in a material way -- by students or by teachers,'' he wrote, ''significant consequences should follow.''

Some scholars argued that Professor Ogletree's statement was a public humiliation more severe than any punishment that could be meted out to a student.

''The discovery is the punishment,'' Professor Gillers said.

[...]

Along with the growing use of the Internet for research, some scholars say the increasing reliance of scholars upon research assistants in the quest to publish increases the risk of the sort of academic error made by Professor Ogletree.

''This is what happens when you have managed books,'' Professor Gardner said.

Managed books, Professor Gardner said, are a recent phenomenon in which some academics rely on assistants to help them produce books, in some cases allowing the assistants to write first drafts.

''Scholarship -- the core activity of the university -- cannot be delegated to assistants,'' Professor Gardner said.

Tribe's 1985 book reportedly “did not use footnotes in the book because it was designed for a popular audience.” In a December 2004 article (accessed via the Nexis database), The Chronicle of Higher Education reported:

After the magazine story was published, Mr. Tribe apologized, saying that he had not properly attributed some of the material in the book and that he took “full responsibility for that failure.”

Following a tip from a law professor earlier this year, The Weekly Standard examined Laurence H. Tribe's 1985 book God Save This Honorable Court and found several passages that mirror ones in a 1974 book by another legal scholar. The magazine also found one 19-word sentence that appeared in both books.

Mr. Tribe, a law professor at Harvard University, did not use footnotes in the book because it was designed for a popular audience, but he did mention the 1974 book, by Henry J. Abraham, in the appendix.

Following panel inquiry, Kagan, Summers “firmly convinced” Tribe's “error was the product of inadvertence rather than intentionality.” In an April 2005 article, The Boston Globe reported that “Harvard University officials have concluded that it was ''a significant lapse' for law school professor Laurence H. Tribe to have used phrasing from another scholar's writing, without attribution,” but “President Lawrence H. Summers and law school dean Elena Kagan said in a statement that the mistake was an inadvertent one.” The article further reported:

Tribe, who reiterated an earlier apology yesterday, said in a statement that he was not facing any sanction beyond the university's public announcement.

Last September, the Weekly Standard, a conservative magazine, published a story reporting that Tribe's 1985 book ''God Save this Honorable Court" contained numerous passages that echoed an earlier book by another author. One 19-word phrase was the same in Tribe's book and in Henry J. Abraham's ''Justices and Presidents," published in 1975.

Tribe's book, which did not contain footnotes, did mention Abraham's book in a note as the ''leading political history of Supreme Court appointments."

Summers and Kagan appointed former president Derek Bok, former dean of the Faculty of Arts and Sciences Jeremy Knowles, and Sidney Verba, a government professor and the university librarian, to conduct an inquiry.

Based on their findings, Summers and Kagan said, ''The unattributed material relates more to matters of phrasing than to fundamental ideas.

''We are also firmly convinced that the error was the product of inadvertence rather than intentionality," they continued. ''Nevertheless, we regard the error in question as a significant lapse in proper academic practice."