Editor’s Note: Today we have a guest post from Rob Schlesinger, a doctoral student at Manhattanville College in Purchase, NY. Rob received a BA from Harvard College and a JD from the University of California, Berkeley School of Law. Rob has worked in higher education administration in both the US and abroad for over 25 years, and is licensed to practice law in New York and California.
As a doctoral student who practiced law before returning to graduate school to pursue an Ed.D., I will admit that I have a different perspective than most of my peers on legal issues. So imagine my surprise when I was told that I was required to enter into a contract with a third party business, ProQuest, and submit my dissertation for publication on their website as a requirement of obtaining my degree.
This was nothing compared to the surprise that I experienced when others – faculty, administrators and other graduate students – heard that I was objecting to this requirement. One would think that I was Oliver Twist asking for more porridge or I had said that I was writing my opus in crayon.
Academe is conditioned to public dissemination of doctoral dissertations, and this justification from the website of the University of Michigan’s Rackham Graduate School is typical:
From the inception of the modern doctorate in the early 19th century, a central purpose of doctoral education has been to prepare students to make significant scholarly contributions to knowledge. The dissertation is submitted as public evidence of your scholarly accomplishment meriting the conferral of the doctoral degree. In keeping with this long-standing tradition, which is consistent with the University’s public mission, it has always been the University’s expectation that every doctoral dissertation and abstract will be released upon conferral of the degree. Only in specific circumstances may release of a dissertation be deferred, and then only for a limited period of time.
My legal – and moral – concerns about this practice stem from the issues it raises with privacy and intellectual property rights, as well as contract law.
Privacy Rights: Requiring a student to publish a dissertation is problematic for individuals who have concerns about their privacy. The publication of a dissertation, especially online, is particularly alarming for people who have been victimized, threatened or stalked, but anyone’s privacy concerns should be respected. Allowing a pseudonym (or anonymity) could help mitigate this problem.
Intellectual Property Rights: It is fairly settled law that the intellectual property created by the dissertation is owned by the author. However, may the institution exert control over its distribution? Like most good lawyers, I would maintain that, “It depends.”
Contract Law: Institutions have been making publication – initially through bound library copy (and interlibrary loan), then microfilm/microfiche, and now website – a degree requirement. Is this defensible from a contract perspective? Let’s look at the applicable standards:
The first standard that applies is conscionability: Is the requirement that students publish their dissertations conscionable? There are two components to conscionability: substantive and procedural.
- Substantive — If the institution required its doctoral students to be individually profiled in its advertising, would that be considered legitimate? Would it be conscionable? If we examine one of the grounds offered for publication of dissertations — the marketing of an institution’s graduate programs — the requirement may be viewed in a different light. Of course, this is not the only rationale being advanced. Institutions point out the promotion of scholarship in general, and publication is endorsed as an unqualified good. But this argument may prove too much. It is not, for instance, being applied to faculty or administrators.
- Procedural — Graduate students and institutions occupy very different positions in the proverbial food chain, and the disparity in bargaining positions is stark. To complicate matters, the publication requirement is often not made clear to the doctoral student until after graduate coursework is complete and dissertation research has begun. Every school has their own policies, and whether actual or constructive notice has been provided is a case-by-case determination.
The considerable difference in bargaining power means that a contract of adhesion may result, with terms that are “take it or leave it.” So whether this requirement is reasonable becomes an important determination, as an adhesion contract with unreasonable terms is not enforceable. Since this practice is prevalent among the vast majority of doctorate-granting institutions, students are essentially being left with no viable educational alternatives.
Agreed Upon Bargain
The other applicable legal analysis is whether publication is part of the agreed upon exchange between the doctoral student and the institution. I am not trying to be facetious when I opine that the agreed upon exchange in higher education is essentially payment for degree.
How can one test this assertion? If a court were to decide that published dissertations had at least some value to institutions, and graduate tuitions should be reduced accordingly, what value would institutions be willing to assign in order to be able to require publication? My guess would be close to $0. Based upon my experience in higher education administration, I would argue that institutions would not be willing to forego any revenue in this case, even if a court decided that there had to be some value assigned.
In legal terms, the publication requirement may fail for lack of consideration, or be voidable for unilateral mistake. Translated into plain English, this mean that students are not being compensated for something of value, or a contract provision is not enforceable because one of the parties is unclear about its implications. Surely, there are other, corollary responsibilities in the higher education exchange as, for instance, the student must complete coursework and research, and the institution must provide teaching and advisement. However, the publication requirement is at best tangential to the essential bargain.
Now that we have dealt with the legal stuff, let’s look at the moral (the right thing to do) and public policy considerations (the principles upon which our laws are based), which I believe are just as important. Is the requirement that graduate students publish their dissertations a defensible position from an individual rights perspective? Is it justifiable to ask a student to subordinate privacy and property rights because of academic interests, most notably “tradition”?
Some may argue that the doctoral candidate is benefiting in this process via the “pedagogy” inherent in the publication process. Hence, said student is more ready and able to enter the world of academic publishing. I do not believe that this rationale is more than a pretense. Consider institutions that require their doctoral students to have dissertations reviewed by professional editors – selected by the institutions, but paid for by the students – before mandatory submission to ProQuest. The latent rationale is to ensure that the institutions are being well represented online. This is clearly done for the benefit of the institutions’ reputations, and not the students’ edification.
Please note that my argument here is not against publishing dissertations online; rather, it is for giving dissertation authors – the doctoral students themselves – a say in the disposition of their work. As long as the author is given the choice of whether or not to submit for publication, the practice may be a legitimate path for open access scholarship.
I suspect that most doctoral students will continue to publish. But sometimes it takes a “gradual student” (thank you, John Irving) with a different perspective to challenge the assumptions behind an antiquated and one-sided practice. Let’s hope that this is the case here.
(N.B. — The information contained herein is general in nature and not intended as legal advice.)