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Another Disturbing Discussion - Senate Commitee on Academic Freedom and Tenure

Added later:

A careful reading of this discussion is sickening. Yesterday, Good Friday, the next in the series of meetings of this committee took place. Preliminary accounts indicate that a forceful attack took place on some of the positions related below. Hopefully this discussion will be included in the meeting minutes when released. They will be posted on this site when available.

Academic Freedom and Tenure Committee
Friday, April 8, 2011

2. Academic Freedom and Allegations Against Faculty Members

Professor Elliott welcomed Vice Presidents Friedman and Mulcahy to the meeting to help the Committee discuss a question framed by General Counsel Mark Rotenberg and referred to this Committee by the Faculty Consultative Committee (FCC): What is the faculty collective role in addressing factually-incorrect attacks on particular University faculty research activities? The question arose in the context of the case of the young man who committed suicide while participating in a clinical trial, Professor Elliott noted, and Committee members had been provided with materials related to the case as background, including the letter from the bioethicists to the Board of Regents and the responses to it from Regent Allen, General Counsel Rotenberg, and Vice President Friedman.

Professor Gaugler inquired what this issue had to do with academic freedom.
Is it not an ethical question, rather than academic freedom? And if so, why is it before this Committee? If he were accused of doing something wrong in his job, and exonerated, but continued to be accused, what should he do, Professor McLoon asked? It is a question of the limits of academic freedom, Professor Elliott said, the notion that one can continue to pursue an idea but not to the point of defaming someone. In part the Committee is also addressing the question because it was asked to do so by FCC.

Professor Gaugler said that it is his take that the letter from the faculty members to the Board of Regents, asking that the case be reopened, was based on a lack of information, given the response of General Counsel Mark Rotenberg, and was not defamation. The events have included continuing publications with factually incorrect information in the media since the Regents,' General Counsel Rotenberg's, and Vice President Friedman's responses, Professor Elliott responded.

Vice President Mulcahy said that he presumed the reason he and Vice President Friedman were at the meeting was because of the circumstances surrounding this particular case. He has given thought to what happened, he related, and from his perspective, this event--seven years ago--was dealt with appropriately by the University, by the legal system, and by the medical system. Where academic freedom comes into play, he said, is that others are free to formulate positions even after the results of the various evaluations. He said he viewed the letter from the bioethicists as a legitimate expression of concern that disagreed with the record and said they have the right to express those views. It is uncomfortable for the University, makes it more difficult to conduct research, and is unfair to the faculty members accused, but it is a part of academic freedom.

Dr. Mulcahy said he has heard General Counsel Rotenberg talk about academic freedom, and Mr. Rotenberg has made the point that academic freedom is not boundless and it does run up to legal boundaries (e.g., defamation). Dr. Mulcahy said that he is not a lawyer so cannot comment on whether what has been said is defamation, but the point is that one cannot defame another and rely on academic freedom for protection from consequences. His view is that the statements that have been made are not legally defamation, and even though they make people uncomfortable, they must defend the right of those who make the statements to do so.

His role, and that of the University, Dr. Mulcahy said, is to be responsible for putting out the facts and letting reasonable people decide. There was a presumption the administration should respond to the charges; his view is that academic freedom should level the playing field for controversial issues and that faculty members should respond when alternative interpretations or positions are espoused by their colleagues. They wanted to defend the University, and the academic-freedom message is important, and Professor McLoon's point is also important: How would one feel if constantly put in a poor light, with academic freedom protecting those casting aspersions? Members of the faculty must play a role in responding to criticisms of other faculty or their academic work, he said. The University has an obligation to put the facts into play.

This is academic freedom, Dr. Mulcahy concluded. There is criticism of some part of the University enterprise; faculty members have the right to make those criticisms but it is also a faculty responsibility to respond. The University can only do so much, and few take his word for things because he's an administrator. Faculty views will be taken much more seriously. There is academic freedom in both directions; people can make statements and others can counter them, as long as neither side runs up against the legal limits on academic freedom.

Vice President Friedman said that there are two issues at hand. One, was the process appropriate? One of the complaints is that it was not. The University's position--and it is responsible for process--is that there were X number of investigations conducted from outside the University that reached conclusions, so the claim that it was a whitewash are not accurate. Two, there is a continuing examination of a set of faculty members, and one question is whether the IRB is good enough to protect human subjects. The claim is made that it is not. The University, however, has a large number of tenured faculty members on the IRB; the claim is that they are not good enough to protect human subjects. The faculty members on the IRB should say that is not true. If the University says the process works, that is seen as the University defending its position. If the faculty members on the IRB say so, that statement goes into the marketplace. It is not only a question of what to do when faculty members take on other faculty members, it is a question of what to do when faculty members take on other faculty members and do not like the outcome. This has dragged on for a number of years, and the position taken by the faculty members on the IRB is more important than what University administrators may say.

Professor Abul-Hajj commented that faculty members read about these issues and say that it is the opinion of those individuals, but most faculty members will say it is not their responsibility to get involved. They will say those faculty members have the right to speak their minds, but most will not spend hours responding.

Dr. Mulcahy agreed and said it was not incumbent on any faculty member to invest time to develop and publish an opinion. But there are subsets of faculty members who could, such as those on the IRB who are aware of the history--they could be vocal. The point about academic freedom was well made: In the court of public opinion, faculty debating with faculty is very different from University administrators with vested interests, who are seen as taking a defensive position. With faculty members who have less of a vested interest, there can be academic dispute. Professor Abul-Hajj suggested that the Academic Health Center FCC could look at the issues and response on behalf of the AHC faculty.

Perhaps this has to do with IRB policy, Professor Loken said, not the IRB faculty, and perhaps policy could be reconsidered. It might not be faculty versus faculty but rather faculty versus policy. Vice President Mulcahy said what he deals with most frequently in his position is faculty versus policy, and there are legitimate issues in many cases. In this case, however, it is not IRB policy. There was a statement made that the IRB is not providing adequate protection to human subjects and that there was a need for outside review. The University participates in a rigorous IRB accrediting process and has gone through it three times; the University's program is recognized as one of the best in the country. When the attack is on practice, that is different from a dialogue about policy, but the University has been told by an external group that it has an excellent program. This case goes beyond policy. Dr. Mulcahy said he has seen cases elsewhere where, after lengthy review, a faculty member is exonerated; the federal government requires in those cases that institutions do all they can to protect the reputation of the accused. The faculty members involved in the case here have been exonerated over and over again and the University is obligated to defend them. That is why the message from Vice President Friedman is important: It points out that the faculty members have been exonerated and they should not be bothered further about the case.

What have been the responses to the message Dr. Friedman sent to the AHC faculty on this issue, Professor Elliott inquired? With one exception, he has received a "thank you" from the investigators and support for his position, but nothing beyond emails sent to him. The University took a position: Enough is enough. For whatever reasons, that is insufficient for some. And there is the attitude out there: "I don't have a dog in this fight and I'm not going to get involved."

Professor Gaugler said that he has read a considerable amount about the case, as an individual faculty member, and then saw the responses from Regent Allen and Mr. Rotenberg. He is not willing to go on blogs and get in the muck, but the responses gave him some understanding of the history and particulars of the case.

Dr. Friedman said that the individual faculty members who have been through this scrutiny--he has spent time talking with them--did not hear from other faculty members on the campus until they wrote the letters. They were unclear where the rest of their colleagues stood. He and Vice President Mulcahy spent a lot of time in the public arena on this matter. There were no new facts in the last two years, but the accused faculty members were bombarded by the media without any indication of faculty support. Academic freedom is not only the freedom to complain but also the opportunity to support fellow faculty members.

Professor Gaugler said this is an issue of the environment in academe: When a faculty member is under investigation, other faculty members keep their distance. This is true across the country. No one wants to touch the issue. Professor Elliott agreed and said there is a parallel with bullying: It is a cultural issue. People see what is happening and do nothing about it.

Professor Elliott asked if Dr. Friedman had brought the matter to the AHC FCC. He has not, Dr. Friedman said, simply because they have been dealing with other issues. He can do so.

Professor McLoon said, apropos of becoming involved, that she would never feel she had sufficient information. She could not spend hours reading all the materials, but if she said she supported the accused faculty members, and received questions she could not answer, it would not look good. Could this Committee act?

Professor Miksch said, apropos of the comments of Vice Presidents Friedman and Mulcahy, that the limits of academic freedom have not been met in this case. Controversy is what academic freedom is about, but there is also academic responsibility. If this has not stepped over the defamation line, faculty members have the right to question actions and policies, and other faculty members have the right to question those who ask the questions.

Professor O'Loughlin commented that in political science (her discipline), they call it "the spiral of silence." When someone voices a minority opinion and gets shouted down for it, others of like minds silence themselves. In this case, it appears that people are comfortable stating opposition to what is being done to their colleague privately, but not publicly, for some reason. "This is not what we usually talk about when we speak of academic freedom and responsibility, but it is part of our community responsibility. Tenured faculty members, who have academic freedom and responsibility, all can speak to it without knowing all the facts. We make assumptions all the time that if something has gone through x amount of review, it is credible. Every faculty member with or without specific background could speak up when they feel that these standards are being ignored. Indeed, it is our responsibility to do so." She said she did not know if the issue belonged in this Committee, but it is a part of academic freedom and responsibility.

Professor Gaugler agreed. The accusers should not be censored, regardless of whether they are right or wrong. This is an academic-culture issue and one can see it happen over and over.

The last sequence of events was initiated by the letter to the Board of Regents demanding a new investigation, Dr. Friedman recalled. This is a perfect time for faculty members to respond. If it had been kept in that domain, the Board of Regents should have heard from the faculty that after this much time and effort they did not believe it a good idea for the University to spend time investigating the case again. They did not hear that, so they needed to respond on behalf of the University. He thought he was responding on behalf of both the University and the faculty, but it is a risky business to have administrators respond on behalf of faculty on academic freedom.

They asked the University to respond, Professor Porter pointed out, and that response was seen as inadequate. That charge is debatable, Dr. Friedman responded. This was not something hidden for a number of years with a lot of faculty not knowing about it. Dr. Mulcahy said he would point out that this is a position he frequently sees people take: "The University" means him, Morrill Hall, Johnston Hall, the deans; when he says "the University," he means all of us. This is a University issue: administration, faculty, and staff. He said he would also observe (and not just in this case), when one sees debates in the media, the reporters can get validation but they are not motivated to gather all the facts in order to reach a conclusion--they want to sell newspapers. The accused faculty members wanted an opportunity to respond, but they could not do so because of legal matters, so no one was voicing their views. So their voice is not heard.

A question came to him recently related to the case, Dr. Mulcahy said. Some faculty members took exception when there was a seminar related to this case scheduled with a title along the lines of "How the pharmaceutical industry dupes innocent victims into clinical trials." He was asked how the University could let someone use such a provocative title; one which could damage the entire clinical-trial enterprise. His response: academic freedom. It is not their role as administrators to try to manage controversial perspectives. However, it might have been appropriate for the sponsors of such a seminar to consider the implications of such a title--how it might damage all clinical trials. That would be an example of how "responsibility" might factor into the academic freedom realm. Academic freedom provides two opportunities: the freedom to express opinions that express a contrary view, and the freedom to respond. He would not say one cannot express views, and would be even more concerned if anyone did say that.

The ideal outcome from their perspective, Professor O'Loughlin said, is that other faculty members would engage their academic freedom in this discussion. Dr. Friedman said they are regularly involved in issues that faculty members bring up--procedural questions--and most others are not directly implicated in the outcome. This is different: Faculty members saying the University should investigate other faculty members because there is a scandal. Faculty members have the freedom to say that another faculty member is not performing well, and is killing people, but the responses should not be email messages to him asking "how can you let them say that?"

They are at the point that the faculty members have been exonerated, Professor Elliott said, and it seems they are still asking whether those faculty members should be able to do their work. They are not saying the system is a problem.

If there three options (or doing nothing), to move this out of the Committee, what would they be, Dr. Craig asked? Vice President Mulcahy returned to Professor O'Loughlin's point: It could identify the role of responsibility in the context of academic freedom and the need for it to be exercised if the system is to work. He and Dr. Friedman are of the view that faculty must engage in a dialogue or debate and it should not just be one side that takes a position. He said he could imagine faculty members who are experts in the field writing something.

Why haven't they, Professor Abul-Hajj asked? He does not know, Dr. Mulcahy said. There is a greater expectation that the administration will respond. He is not saying that faculty have to do this, but they should keep it in mind. He said he was also surprised at the number of people who rushed to judgment without all the facts; he said he thought "all of our training" is to verify facts before reaching a conclusion. Some hear the "facts" the first time as presented in seminars or the media and rush to judgment.

Dr. Craig suggested giving FCC a summary of the statements and letting it decide what to do.

Dr. Friedman said he wished to take his point farther. The point of academic freedom is to give faculty members the freedom to weigh in on the events of the day. What if the exercise of that freedom is aimed at someone else on the faculty? That is where FCC could think about the responsibility and ability to respond. He said he understands that one can go up to the point of defamation; what is unique here is that a group of faculty members is going after other faculty members and saying the University's process needs changing, but in the meantime have done something seriously wrong because those faculty members have spent years in the spotlight as part of what was called a scandal.

Vice President Mulcahy thanked the Committee for the opportunity to have the conversation. He said it is his first time in his experience with this case to have a meaningful discussion; he has not had the opportunity with any faculty group before this to talk about limits and what principles should apply.

Professor Elliott thanked Drs. Friedman and Mulcahy for joining the Committee.

Following the departure of Drs. Friedman and Mulcahy, Professor McLoon inquired what the Committee would do. It was agreed that the Committee would return to this matter at its next meeting.

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