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For the Record: Minutes Academic Freedom and Tenure Committee Friday, April 22, 2011


Academic Freedom and Tenure Committee
Friday, April 22, 2011

2. Assuring Academic Freedom

[emphasis mine]

Professor (Barbara) Elliott (on the telephone from the Duluth campus) reported that since the minutes of the last meeting (with a report on the discussion with Vice Presidents Friedman and Mulcahy about academic freedom and responsibility and the Markingson case) went out, she has received a number of messages from across the University about the topic of academic freedom. Vice Presidents Friedman and Mulcahy joined the previous meeting because they were invited to do so, in order to help the Committee respond to a question from the Faculty Consultative Committee (FCC), one of several it had requested from General Counsel Mark Rotenberg.

There is the impression that the Committee is dealing with the case, Professor (Barbara) Elliott said. As the first hour of the meeting demonstrated, however, the Committee deals with policy, not specific cases. Part of the issue it is dealing with is: when academic freedom applies, what are the responsibilities of those in academe that ensure all voices are heard, none are silenced, and ideas are the focus of the conversation (not a personal attack).

She presented yesterday at the Senate Consultative Committee the Committee's response to the questions posed by FCC about the film Troubled Waters. The report was very well received, and the work was acknowledged as another way the University's work in academic freedom and responsibility are moving the country's conversation forward. When the Committee prepares its white paper on academic freedom, one dimension of the conversation that will be addressed is the responsibilities associated with the privilege of academic freedom. The Committee has focused on academic freedom, but what are one's duties and obligations as one enjoys and exercises academic freedom? That is why the title of the agenda item, so the Committee moves to a discussion around academic responsibility.

Professor Miksch noted the Committee had a preliminary discussion; the question give to it is whether there are limits on academic freedom, and if so, what are they? Professor Gaugler asked what the Committee intended to do. This is a follow-up to the discussion about the question FCC posed, Professor Miksch said: When one faculty member, or group of faculty members, is criticizing another faculty member, what are the limits to academic freedom? Professor Miksch said that there are a number of limits to free speech and academic freedom including inciting unlawful activity, obscenity, and defamation--but the only one, in her opinion, who can decide if defamation has occurred is a judge.

An important piece of the question is academic responsibility, Professor O'Loughlin reminded the Committee. As the Committee discussed in connection with Troubled Waters, Professor O'Loughlin said, there are some limits to academic freedom and part of the question is how it relates to academic responsibility.

Professor Turner objected to the phrase "factually incorrect" in the question from Mr. Rotenberg. Professor Miksch repeated that the Committee does not hear individual cases. It will not decide who is factually correct, nor will it cut off debate.

Professor O'Loughlin said that the question driving the discussion was about the limits to academic freedom and responsibility as a general principle; Troubled Waters and other situations, real or hypothetical, were just about teasing out where the lines of the policy is.

Professor Marran said that as for the question from Mr. Rotenberg about "factually incorrect" attacks on faculty members, that was the initial statement made to FCC by Mr. Rotenberg, not by this Committee. The minutes of the April 8 meeting, it was said, suggests that they were being irresponsible. All have the right to debate, Professor Marran said, including faculty who are here today. The Committee is making no accusations or presumptions.

Professor Gaugler asked if the visitors to the meeting could present their views. Professor (Barbara) Elliott said no; the Committee, she reiterated, looks at policy, not specific cases.

Dr. Craig commented that the Committee never heard anything about something being "factually incorrect." It was not part of the discussion. Nor did the Committee get into the facts of the case, Professor Marran added. As reflected in the minutes, the phrase "factually incorrect" was in the introductory comments but the Committee never addressed it.

The tenor of the discussion at the last meeting, Professor Gaugler said, was that Vice Presidents Friedman and Mulcahy brought up the letter sent by a group of faculty and the University's response. He had asked what this had to do with academic freedom, and said that it was more a question of why faculty members are not speaking up in defense of faculty, not whether the faculty in the Center for Bioethics did anything wrong. He said he found it interesting and odd that two senior administrators were asking why the faculty were not speaking more about academic freedom. The question was brought up about how long one keeps a matter open after many investigations. The discussion then moved toward more general issues of academic culture and ethics.

The question from FCC asked about the limits of academic freedom and academic responsibility from a policy perspective, Professor Miksch noted again, and the limit is defamation. The Committee should affirm that all faculty members are free to pursue arguments as they see appropriate, Professor Marran said. Professor Miksch agreed.

Professor O'Loughlin said the question is how, as an academic community, "we fit pieces of academic freedom and academic responsibility together." The discussion at the end of the last meeting suggested that faculty members need to be empowered to assert their academic freedom and academic responsibility; the Committee was not saying that faculty members should not assert their academic freedom. The question is why all faculty members do not assert it.

Professor Miksch read to the Committee the letter that Professor Scheman had written to Professor Elliott about the April 8 meeting of the Committee as reported in its minutes.

Dear Professor Elliott,

I'm writing as the president of the University's AAUP chapter to convey a concern about the Committee's discussion of issues arising from the Markingson case. It is unclear what the academic freedom issues are, since, one would assume, defamatory speech is not protected and non-defamatory speech is. The questions at issue in this case turn on whether what has been reported is, in fact, defamatory; and a necessary first step in determining that is determining whether what was reported is or is not true. What we have at this point are two conflicting claims about that question. What I find disturbing is that some of the discussion at the last meeting seemed to be presuming that the claims made against the researchers were false; but the committee cannot work on that highly prejudicial presumption-- it is precisely what is at issue in the case.

I understand that the general questions raised by this case (whatever they might be) are to be taken up again by the committee, and I trust that, as chair of the committee, you will be careful that there is not a presumption being made about the truth or falsity of the charges in this particular case.

Naomi Scheman
Professor of Philosophy
President, University of Minnesota chapter of the AAUP

Professor (Barbara) Elliott said she was grateful for the letter and has drafted a response, but intends that it come from the Committee, to make the observation that it deals with policy. The Committee has nothing to do with the Markingson case or any other case. It is the Committee's intent to follow through on the policy issues, and she will forward the response to Professors (Carl) Elliott and Schultz.

Committee members decided they wished to hear from the visitors to the meeting.

Professor Taussig said she appreciated that the Committee is working on policy and that the Markingson case is background, but it is clear from the April 8 minutes that the case was discussed and there were statements about "factual inaccuracy." Her concern as a faculty member is that the Committee had a discussion with two powerful administrators and was used (unintentionally on the part of the Committee) as a form of intimidation on campus. There was another set of minutes of a meeting that included Professor Kahn, chair of the department home to the signatories of the letter to the Board of Regents [the Center for Bioethics], but the meeting did not include those who signed the letter, so there was again an attempt at silencing. She is concerned as a member of the Senate that a committee of the Senate was being used. She is also aware that Professor (Carl) Elliott wanted to present information to the Committee, regarding his opinion that the case information is not factually inaccurate, but that Professor (Barbara) Elliott said she could not invite him to present about the case to the committee. This case is coming back, Professor Taussig said, and it should be debated, and the University should provide a model for how to have this kind of debate. She reiterated that she was alarmed at the way a Senate committee was being used.

Professor Gaugler said he had not been intimidated at the last meeting but agreed there should be open debate on the case. He does not know the particulars, he noted; he has read blogs, seen the media coverage, saw the letter from Professor (Carl) Elliott, and the University's response. They can respond to the University's response if they wish, Professor Gaugler told the visitors, and he will then reach his own conclusions.

Professor Loken said she understands the concern expressed by the visitors but said she did not know where the debate should take place. It is an important issue to them, and unclear where debate should occur, but it should not occur at this Committee.

What struck her, Professor O'Loughlin said, is that at the beginning of the meeting the discussion was about administrators who talk to faculty committees about relevant issues and how it is true they are often the only voices going to meetings. That said, this practice is an issue for FCC, if anyone.

The debate started as a result of an article he wrote for Mother Jones, Professor (Carl) Elliott related. Mother Jones has a long history of investigative reporting and has a rigorous fact-checking process. The Mother Jones lawyers also reviewed the article. The University has not complained to Mother Jones about the accuracy of the article or asked the magazine to correct any part of it. Yet two senior administrators came to the Committee to complain about factual inaccuracies, the minutes presumed there were factual inaccuracies, and the question from FCC presumed there were factual inaccuracies.

Professor Miksch said the Committee has not decided whether there were factual inaccuracies, nor is it its responsibility to do so. No one has been decreed to have defamed, so the limits of academic freedom have not been reached.

What Professor (Carl) Elliott is saying, Professor Loken said, is that the Committee took it as a given that there were factual inaccuracies. That was a viewpoint expressed, and the Committee was provided documents, but she made no judgment, she said, nor are Committee members here to make such a determination.

Professor Waters said he wished the Committee to be aware that there is a context.
In the interest of opening discussion, he invited Professor (Carl) Elliott to give a public lecture to the science studies community focused on the claim that the trials which resulted in Markingson's tragic death were designed for marketing purposes, rather than for the benefit of future patients (just one aspect of malfeasance revealed in the research). The lecture was widely publicized and well attended. He expected pushback from the clinical faculty, but none spoke up during the Q&A or contacted him. Instead, they complained to the Vice President for Research. Vice President Mulcahy's comments as reported in the April 8 minutes of the Committee indicated that there was "possible irresponsible" exercise of academic freedom in scheduling a talk whose title might "damage the entire clinical trial enterprise." Ironically, the complaint included a factually inaccurate description of the title; Professor Waters read the title of the talk and the abstract: "The Clinical Trial as Pharmaceutical Marketing Tool"; "When a young man committed suicide in an industry-sponsored clinical trial of atypical antipsychotic drugs at the University of Minnesota in 2004, critics charged that he had been coerced into the study. They may be right, but the ethical problem is even larger. Today pharmaceutical companies are designing and analyzing clinical trials not to produce reliable scientific data, but to ensure that their own drugs look superior to the competition. These trials are published in peer-reviewed scientific journals and distributed by drug reps as a way of marketing the drugs. Which raises the question-when is it ethically justified to enroll human subjects in marketing studies?" Professor Waters suggested that the critics should have entered the debate rather than going to the Vice President in an apparent attempt to get the administration to curtail open and rigorous debate. It is not their role to protect the pharmaceutical industry, Professor Waters said. It was a great question to put to the University community. The question from the administration to this Committee is an affront. Professor Taussig again said the Committee had been used.

Professor Miksch agreed, per Professor Loken, that it is important to have forums and debate. She noted that in its Troubled Waters report, the Committee recommends forums, like the one Professor Waters describes.

Professor Anderson commented that it is an interesting question how this issue came to the Committee, and perhaps it could have heard other viewpoints. That goes to Professor Gaugler's question about what this issue has to do with academic freedom. She said she was uncomfortable with the discussion today because she felt it was focused too much on the particular case.

The visitors raise good points, Professor Gaugler said. The Committee had administrators visit to talk about various points; if there are vigorous responses to the minutes, it is helpful for him to hear about them. The Committee can be skewed in its views if it hears more from administrators than others who may disagree with the viewpoints of the administrators.

Professor O'Loughlin said the question is how to get the faculty voice into public conversation if there are multiple narratives, and then how to get it into governance.

Professor (Barbara) Elliott said she agreed with Professor Anderson; the visitors brought their passion to the Committee, which she appreciates, but this Committee is not the place for it to be voiced. She made the same responses both to Professor (Carl) Elliott and Professor Schultz: She said the Committee did not wish to be involved in the case. So while she can understand their deep passion, and she supports their right to express it, the Committee's obligation is at the abstract policy level, about the duties and obligations of the faculty.

Where do the visitors go to have their questions addressed, Professor Porter asked? It is also a matter of time, Professor (Barbara) Elliott said; this issue is seven years old and after all that has happened, there may no longer be a place within the University for further review.

Professor Gaugler agreed that the charge to the Committee does not include dealing with a specific case, but it was forced to do so at the last meeting. If guests at a Committee meeting bring it up, the visitors have a right to respond. The case was an introduction, Professor (Barbara) Elliott pointed out; the Committee moved to a more nuanced discussion of rights and obligations.

Professor (Carl) Elliott asked who invited Vice Presidents Friedman and Mulcahy to the Committee. Professor (Barbara) Elliott explained that FCC asked the Committee to pursue the limits of academic freedom and responsibility; the Committee may invite whom it wishes to discuss the issues.

Professor Gaugler agreed that as the discussion progressed at the last meeting it moved from the specific case to focus more about faculty rights and responsibilities in general if a faculty member is exonerated of charges of misconduct but continues to be accused by other faculty members. In his opinion, Professor (Carl) Elliott said, the question is whether the faculty member was exonerated.

Dr. Gaugler asked Professor (Carl) Elliott to set aside the Markingson case for a moment. If someone is accused and exonerated, the person's reputation is still stained, Professor Gaugler said; this is more an academic-culture question than one related to academic freedom. Where is the cut-off on academic freedom to continue to raise issues in an instance where a faculty member is exonerated? There is none until defamation occurs, and then the matter goes to court, Professor Porter observed. Professor Miksch agreed that there is a need for fuller discussion of this kind of question by the academic community.

Professor Waters said that the visitors were here because of what is going on now with respect to academic freedom, not because of what happened seven years ago. The Committee received a "have you stopped beating your wife" question. The question inserted the allegation that Professor Elliott's criticisms are based on factual inaccuracies and suggests that since the researchers were "exonerated" the criticism should stop. But the "exoneration" of the trials does not indicate that debate about them should stop. Professor Waters said that as a historian and philosopher of biology who has investigated the history of genetics, he can say that the University of Minnesota has played an important role it that history and has a lot to be proud of. But it also has something to be ashamed of, namely eugenics. Eugenics was controversial and yet "exonerated" time and time again. Does that mean debate about eugenics should have stopped? Of course not. He said that is what academic freedom at research universities is all about. He said he was concerned that uncritically entertaining this false question might serve to squelch academic freedom.

Professor (Barbara) Elliott said the Committee has an obligation to talk about the limits and responsibilities of academic freedom. It also needs to do its work.

Professor Taussig thanked the Committee for its work and thoughtful comments. She recalled that she brought up the case at the Senate meeting and remains concerned about the inadvertent use of faculty governance. The Committee received a select iteration of facts, and their visit was not a personal attack but a concern about the visit of the vice presidents to the Committee.

Professor O'Loughlin repeated her point that FCC needs to address the question of visitors to committees and to bring the issue to the Senate.

Professor Gaugler said he regretted that some people believe faculty governance is broken and useless, and anything they can do to change that perception is important. He said he believed academic freedom, tenure, governance, and robust faculty participation in this process (such as at this meeting) are important for the University.

This issue is vital, Professor O'Loughlin said, and had gotten the visitors to attend the meeting. She was glad they had come and hoped they would continue to be engaged.

Professor Miksch thanked the visitors for their comments.

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