THE FACULTY ADVOCATE
NEWSLETTER OF THE UMKC CHAPTER OF THE
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS
February 2008
Editor: Patricia
Brodsky
Vol. 8, Nos.2-3
Local Guidelines for
IRB's, by Drew Bergerson
Oral History and
IRBs, by Drew Bergerson
ORS and IRB Punishment
of Alleged Faculty Misconduct, by Randall Wray
UMKC Academic
Freedom Statement, by Stuart McAninch
HB 1315, "Intellectual
Diversity Act" Redux, by David and Patricia Brodsky
HB 1315, testimony
to MO House, by Victoria Johnson
HB 1315, testimony
to MO House, by Keith Hardeman
HB 1315, testimony
to MO House, by David Robinson
UMKC honors foe of
academic freedom, by David Brodsky
MU AAUP Chapter
Reestablished
AAUP Tenure Workshop
February 15
News of the chapter
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Local
Guidelines for Institutional Review Boards: a Call for Help
by Drew Bergerson
An increasingly widespread problem
which has attracted attention and concern in higher education is the
power of IRB's--Institutional Review Boards--to delay, hamper and even
thwart scholarly research. Obstruction is accomplished
particularly through uninformed and inappropriate application of their
rules to fields other than the sciences. In this issue we present
a cluster of items addressing this problem, suggesting some solutions,
and detailing one local example of their destructive power.--Ed.
"Mission creep" is not just a
problem for faculty responsibilities; it is also a danger for
Institutional Review Boards. In response to the abuses
experienced by the human subjects of biomedical experimentation earlier
in the century, the Federal Government has for decades rightly
insisted, and faculty have by and large agreed, that all clinical
research protocols funded by the Federal Government that involve human
subjects must be reviewed and approved by a panel of peer experts at
the local institution before that research project can be
conducted. Few scholars dispute the principle of IRB review for
biomedical or psychological research, where the potential for harm from
their procedures is high and the benefits of prophylactic review of
those protocols equally high. But we have reached the point at
which additional regulatory oversight is doing more to undermine the
cause of research than to improve its ethical standards.
Across the nation, a dispute has
arisen over how, and how far, the principles of review by IRBs should
be applied. IRBs on some campuses are now calling for the review
of behavioral social sciences that engage in ethnographic research as
well as humanities like oral history that use interviews as part of
their research protocols. The debate over this question has grown
to involve not only the Federal Office of Human Research Protections
(OHRP) and many of our national disciplinary associations (for
historians, the American Historical Association and the Oral History
Association, as well as the American Association of University
Professors) but also IRBs, administrators, and faculty at local
institutions across North America, including UMKC. They center
around two essential issues that most agree are the core of the
problem, though there is a wide range of opinions as to how to resolve
them. The first is simply a question of defining far more
precisely the scope of what kinds of research IRBs are authorized to
review, and the second is a serious concern with a lack of clear
procedures and guidelines at the local level. Most parties agree
that this is a dangerous combination, but the solution requires a
degree of collaborative governance that is often lacking at the local
level.
At the Federal level, the OHRP
recognizes that their guidelines in this regard are anything but clear.
They have recently (26 December 2007) solicited another round of
recommendations from scholars in diverse disciplines to clarify federal
guidelines. More significantly, the OHRP's guidelines insist that
it is up to the trained specialists in local institutions to develop
local rules for IRB practices and procedures on their own campuses,
including the question of ethnographic and oral historical
methodologies. Our national organizations insist that this
problem will not go away and that the best solutions are for each local
institution to work this out on their own. In other words, we
have the right and responsibility to determine the rules by which IRBs
conduct reviews here on campus. An example of what can go grossly
wrong when we have unclear guidelines and procedures for IRB review
comes in a letter from Randy Wray (Economics; see below).
That alone would be reason enough to address this issue.
This is where we are today.
Together with a team of historians at our institution who are actively
involved with oral history, I have initiated a conversation with John
Bauman here at UMKC on the principles for how UMKC will handle the
question of oral history and IRB review. This conversation has
thus far been mutually educational, but it has not yet come to any
pragmatic solutions. Indeed, we have not yet sat down for that
hard conversation about actual rules and procedures. But I need
help. I am not a specialist in all areas of ethnographic and
interview based research. I am therefore sending out an open
invitation to other social scientists and humanists engaged in
ethnographic and interview-based research to participate in the
soon-to-be announced meeting with John and the UMKC IRB where we will
strive to develop, as per OHRP guidelines, concrete guidelines for the
practice of our local IRB based on the expertise of the faculty who
specialize in those methodologies.
Here is my position with regard
to my own engagement with living people as part of my
scholarship. (I use this strange language because oral history
does not fit into what the OHRP defines as "human subject
research.") I believe strongly that oral history should be
summarily excluded from IRB review. There are far better ways to
promote ethical considerations when planning our research protocols,
and far better uses of the IRB's time than to review oral history
protocols. With the support of other historians actively working
in oral history here on campus, I have made this case to John, and to
the OHRP, in a letter from December 2007 (reprinted below).
But my arguments about oral
history may or may not apply to other disciplinary methodologies.
Indeed, the overarching problem to me seems to be that IRBs have been
applying premises from other disciplines where they do not belong and
where they are not experts. I would therefore welcome
participation from other faculty who can bring their own expertise to
this important conversation about how we will treat human subject
research on this campus.
To read more on these issues, see
http://institutionalreviewblog.blogspot.com/
Drew Bergerson is Associate Professor
of History
Oral History
and Institutional Review Boards
by Drew Bergerson
The following letter and proposal
were sent by Professor Bergerson on December 23, 2007 to Ivor A.
Pritchard, Acting Director, Office of Human Research Protections (OHRP)
I write to you today greatly
concerned about the prospect of Institutional Review Boards (IRBs)
conducting (regular or expedited/delegated) reviews of research
projects in oral history. I am an historian who employs narrative
interviews as one technique in my historical research. I have
recently been engaged in a constructive dialogue with the responsible
research officers on my campus about oral history and "human subject
research." It is my belief that extending the authority of IRBs
over oral history is unwarranted, unconstitutional, and dangerous for
the health of our democracy.
There is no question that
historians have ethical and legal responsibilities to their interview
partners that result from our interactions with them. Our
extensive professional guidelines clarify not only questions of
informed consent but also anonymity, copyright, and so on. Based
in traditional practices of academic self-governance, they have
functioned reliably well in protecting the rights and responsibilities
of interviewers and interviewees. For the vast majority of
research projects in oral history, there are simply no compelling
reasons to subject historians to the kind of IRB review that is typical
of "human-subject research." As I explain in my enclosed comment
("Oral History and IRB Review," #1):
* IRB review will not
significantly enhance the protection of human subjects beyond what is
already available through professional guidelines for "best practices"
in oral history.
* The vast majority of research
projects in oral history will be exempt by the very nature of their
research methodology.
* Indeed, it is more likely that
IRBs will mistakenly constrain perfectly ethical research protocols
because the existing regulative guidelines for "human subject research"
do not make sense for most research in oral history.
Even an expedited/delegated
review process would thus represent an unnecessary regulative hindrance
to research. There are far more compelling reasons not to subject
historians to the kind of IRB review that is typical of "human-subject
research," even if expedited/delegated. As I explain in more
detail below (#2):
* Fighting these regulative
battles will have a chilling effect on scientifically and ethically
valid research in oral history.
* Once legally mandated, even
expedited/delegated review would unconstitutionally restrict the
freedom of speech of both interview partners.
* Moveover, it would unfairly
restrict the freedom of speech for insular minorities.
* And finally, it would undermine
the crucial public role of historians in fostering a public debate
about the events of contemporary history.
I conclude this comment with some
concrete policy recommendations (see # 3 below):
* The OHRP should clarify the
existing guidelines concerning oral history.
* The OHRP should allow
historians to give themselves a straightforward exemption from IRB
review for a long-term research agenda through the submission of a
precise and concise on-line form.
* Historians should continue to
base their research practices on the existing disciplinary standards
for ethical conduct as outlined in our professional guidelines and
monitored through peer review.
* Historians who wish to vet
their research with peers may do so voluntarily through locally based
Oral History Ethics Committees comprised of experienced oral
historians. For the very small number of ambiguous cases that
might merit review, these Committees could advise the local IRB as
experts within this disciplinary specialization.
I appreciate your careful
consideration of this matter.
Oral
History and IRB Review
1. Oral history is not "human subject
research." IRB review will not serve any useful purpose not
already served by our professional guidelines.
The American Historical
Association and the Oral History Association have already informed the
Office of Human Research Protections (OHRP) about the many reasons why
oral history does not typically fit into the category of "human subject
research" as defined by relevant statutes. Historians certainly
believe that their histories provide insights into the human condition;
but oral history does not reach for
generalizable principles of historical or social development which
could have predictive value and could be applied to other circumstances
for the purpose of controlling or engineering outcomes.
Historians often study human subjects as members of larger groups, but
no historian could get away with ignoring their unique setting and
context. Preoccupied with human experience, we are professionally
obliged to interpret and narrate those life stories as embedded in
particular times and places. Because we are interested in telling
the story of this person in terms of its specific details, historians
personalize their interviews to suit the particularities of each
interview partner. As a discipline, then, historians tend to
focus on the experiences of particular
individuals contextualized in particular times and places.
This tendency is especially characteristic of oral histories, given
their methodological focus on unique persons in unique contexts.
To be sure, our discussions do
have very important public functions (see #2 below), and we do employ
theories of human behavior from the social sciences to help explain
those human experiences. Yet the insights that history provides
into our collective identities and responsibilities must not be
confused with the kinds of conclusions that social scientists draw when
they generalize to universal human principles. Most academic
historians are woefully bound to particular national, group, or even
local histories. Indeed, most would insist that the only
so-called "law of history" is that there are no such laws. Even
comparative history expends considerable energy highlighting
irreconcilable differences between case studies. The point here
is simply that the vast majority of
research projects in oral history fall beyond the scope of the legal
definitions of "human subject research." It therefore
makes little sense in subjecting historians to IRB review.
Two of the main considerations
that IRBs look for during review--proper research protocols and
preserving the anonymity of interview partners--will almost always be
mooted by our methodology. Oral history typically does not
involve standard questionnaires whose research protocols could usefully
be reviewed by an IRB, but rather open-ended,
narrative interviews where the interviewer must respond dynamically to
the specific life history of that interviewee. Moreover,
historians can never ensure the anonymity of their interviewees because
of the requirement that historians make their primary sources publicly
available. The presence of an archived and typically taped record
of their memories makes interviewees readily identifiable with current
technologies. In our published histories, we are beholden to our
ethical responsibility to do the best we can to make identification as
hard as possible; but a resolute third party will almost always be able
discover the identity of our informants because we always contextualize
those people in particular times and places. Telling the story of
a Vietnam War veteran, for instance, can be made only so anonymous by
changing names; a careful investigator would be able to reconstruct
that information by comparing the particular events described in those
narratives to other records. OHRP guidelines recognize that
research conducted on information in the public sphere is beyond the
scope of IRB review; the point about oral history is that our
discipline requires that we bring it into the public sphere (as an
archival record, as a narrative of unique people, times, and places) in
such a way that undermines the possibility of truly preserving the
interviewee's anonymity. Since there is no useful benefit for IRB oversight
of oral history questionnaires or anonymity procedures beyond the
professional guidelines already in place for "best practices" in oral
history, that review process would represent an unnecessary regulative burden on
research.
The same could be said for the
"minimum harm/maximum benefit" clause. In keeping with the
Hippocratic principles behind medical research, IRB review is primarily
designed to ensure that a research protocol does the least harm to, and
the most good for, its human subjects. The principle underlying
the methodology of history, source criticism, is measured on a
completely different scale. Professional historians are trained
to investigate the biases, context, motives, deceptions, and so on, of
our sources. We spend our graduate and doctoral seminars learning
these techniques, ranging from hermeneutic readings of textual sources
and empathic understanding to semiotic readings of images and
triangulation between multiple sources, not to mention the proper
application of various theories of human behavior. Source
criticism teaches us that historians are professionally obliged to ask our
interview partners probing questions independent
of the benefit or harm for the interviewee.
Historians certainly do not set
out to either hurt or harm our interviewees; our professional
guidelines clearly require us to take these questions of benefit or
harm into consideration when we conduct our interviews. But it is
nonetheless our job to ask tough, critical
questions. Consider, for instance, the many kinds of
challenging questions that one would have to ask those veterans of
Vietnam if one were to fully understand the soldiers' experience, such
as disobedience to officers, black markets, illicit sexual relations,
war crimes, and so on. Yet the same is true of the historian's
responsibility when the topic of the interviews seems rather innocuous,
such as the everyday life of African-Americans in pre-Katrina New
Orleans. The open-ended nature of narrative interviews and the
obligation to criticize our sources would still require the historian
to push our interlocutors beyond their comfort level to sensitive,
political, private, and at times even traumatic memories. Add to
this our inability to provide true anonymity as described above, and
there is also no way for us to protect these informants from the kind
of harm that might come once their stories have become part of a public
record in archival collections and historical publications.
That is, historians assume a posture vis-ÿag-vis our sources fundamentally different from the
relationship between a biomedical or clinical researcher and their
human subjects. More akin to a prosecuting attorney, we use an almost adversarial posture of
source criticism to get at the truth about the past.
Because IRB guidelines largely miss the point of oral history, the
benefits of IRB oversight for historians pale in comparison to the far
more useful professional guidelines already in place for "best
practices." The danger here is that IRBs could inappropriately
prevent perfectly acceptable oral history from being implemented and
students from graduating by applying principles to oral history that do
not meet its disciplinary logic. In keeping with the OHRP efforts
to reduce regulatory burdens that do not contribute significantly to
the protection of human subjects, it makes sense to exclude oral history from IRB review in a
simple and straightforward manner.
2. IRB review would unconstitutionally
curtail the freedom of speech and undermine the crucial public role of
history in a democratic society.
The purpose of historical
research is to uncover the truth about a past that both interlocutors
to some degree believe impacts their lives. Historical interviews
must be understood not just as "research" but also as a voluntary "conversation" held between
consenting adults, in their public capacity as citizens, about matters
of public concern: that is, the causes, consequences, and
character of past human behavior. This is true, I would argue,
even when the oral history focuses on quite personal experiences, for
the interviewer and interviewee are implicitly
or explicitly framing those experiences in terms of a shared history.
The testimony of the victims of genocide, for instance, are certainly
recounting very personal experiences of trauma, and yet they are not
discussing them with a psychologist or medical doctor where they are
seeking care for their distress. They are discussing them with an
historian. The context for those discussions--as per our "best
practices": a recorded, open-ended, narrative interview with informed
consent between the interview partners--clearly implies that both wish
that dialogue to become part of a
public record for the communities to which they belong.
I am not a constitutional lawyer,
but it seems to me that this kind of speech is protected under the
First Amendment. Any restriction of it in part or in whole by an
Institutional Review Board would constitute an illegal violation, by the Federal
Government as well as the IRBs, of our constitutional right to freedom
of speech. There is no question that IRB oversight of historical
research, even if managed through expedited/delegated review, would
have a chilling effect on the
willingness of researchers to engage in oral history. The
problem is not peer review or ethical consideration per se, since both
are already part of the "best practices" of oral history; rather the
problem lies in the regulatory framework of IRB review that will
certainly stifle enthusiasm for oral history. In response to the
national debate on IRB's and oral history, I included in my Fall 2007
course on Historical Research Methodologies at the University of
Missouri-Kansas City a unit on historical ethics that included an oral
history project, peer review of those projects, and an extensive
presentation on "human subject research" by the local responsible
officer at UMKC. After this presentation, I asked my students if
they plan on using oral history for their masters or doctoral
research. Most insisted that they would rather not engage in oral
history at all if they would be compelled to seek even
expedited/delegated review from an IRB with legal authority over their
research. I have heard similar arguments made by working
historians. Directly or indirectly, IRB review of oral history
research protocols would thus impinge
on the freedom of speech of future historians to discuss the past with
their fellow citizens.
IRB review of oral history would
also serve to unlawfully-- and unfairly--restrict the freedom of speech
of our interviewees as members of so-called "insular minorities."
Given the fact that most archives house the records of governmental
institutions, and most printed and even most manuscript sources speak
with the voice of dominant groups, oral history is often one of the
only vehicles for documenting the lives of typically marginalized
populations. Oral history boomed as a research methodology in the
20th century in large part in an effort to recover the stories of the
victims of modern history: the working classes, women, former slaves,
persecuted religious groups, victims of genocide, forced laborers,
survivors of natural catastrophes, undocumented immigrants, speakers of
dying tongues, and so on. Particularly when judicial processes
fail to bring the perpetrators of these crimes to justice, or when the
injustice persists to this day and is supported by historical myths,
oral history steps in as the crucial social mechanism for raising
critical awareness about these tragedies in the public sphere.
Historians give voice to those whose voices have been silenced or grown
mute. IRB review will certainly have a chilling effect on the
willingness of these typically marginalized populations to participate
in such research. One can reasonably expect that even the scent
of governmental presence would greatly reduce the pool of, say,
undocumented workers or illiterate persons who are willing to
participate in oral histories. Combined with the fact that fewer
oral histories will be produced because of the very presence of
regulation, the extension of human subject research procedures to oral
history will indirectly, yet
significantly, impinge on the First Amendment rights of insular
minorities to share their experiences and perspectives with a
wider public sphere.
Above all, it also seems to me
that there exists a compelling public interest in a healthy democracy
in reserving a maximum possible free range for public debate about our
shared history. Along with source criticism, professional
historians are obliged to engage in historical criticism. That
is, historians are trained to use individual stories to challenge
existing interpretations of the causes, consequences and
characteristics of the past, proving old accounts wrong and suggesting
new ones in their place. In this capacity, just as journalists
are the historians of the present, historians are the journalists of
the past. Our job is to challenge the myths, misperceptions, and
misrepresentations that persist in the public sphere about the
past. Like journalists, we treat all of our "informants" (from
"great men" to "ordinary people") not as private persons but as public
individuals whose stories in some way, shape, or form influenced our
collective history. Professional historians may typically be
employed by universities, but we are in fact public servants whose
primary professional responsibility is to provide that public with ever
more accurate accounts of their inherited history.
Here again, our posture
vis-ÿag-vis our interview partners is completely different from
the clinical relationships usually scrutinized by IRBs. We
certainly are not equal interlocutors: historians are sensitive to the
unequal power relations between interviewer and interviewee, and have
ethical guidelines for professional behavior to accommodate these
differences. Yet when we discuss the past with them, we do so as two public citizens voluntarily inquiring
into the making of our shared history. It seems to me that
one reason why information in the public domain is not subject to IRB
review must lie in the fact that our society has recognized the
significant social benefits that come from the wide dissemination of
information by the public relating to the public. In oral
history, the interviewer and the interviewee are discussing the
interviewee's life as if he or she
was a public figure: in terms of his or her contribution to the
collective history, and ultimately with a sense of responsibility to the public for
"getting it right." (I suspect specialists in other disciplines
would argue that their research also falls into this definition of oral
history. For instance, most humanists interview artists,
architects, authors, directors, planners, and so on as members of the
public discussing the works of a public figure.) I would argue
that this kind of research is, by definition, beyond the mandate of the
IRB: it falls under the umbrella of the kind of public debate and
mutual scrutiny that is a cornerstone of our democracy.
Even an expedited/delegated
review of this kind of critical investigation by an IRB legally empowered by the government to
restrict research would, at least, reduce the willingness of
citizens to engage in it and, at worst, provide a possible mechanism
for far greater abuses. One reason why professions like
journalism, law, doctors, and historians have the authority to review
themselves through professional mechanisms, rather than legal oversight
by governmental institutions, is to protect these crucial civil
liberties from potential abuse. Given the existence of viable and
functioning professional codes of conduct with regard to the ethics of
research, IRB review is superfluous at best and will far more likely serve to curtail the
public's right to know about and debate their shared past.
3. Policy Recommendations
A vibrant critical discourse
about the public consequences of past behavior is a sufficiently
compelling public interest that we allow journalists to conduct their
"human subject research" without formal institutional review
processes. They monitor themselves through informal mechanisms of
professional codes of conduct. That is, our society in effect
provides journalists with a straightforward
exemption from all governmental oversight except in the
extraordinary cases of abuse. The same processes of professional
self-monitoring have been the standard by which historians have worked
in the United States and still work in many other parts of the
world. The benefits of IRB review would be marginal at best given
the degree to which their premises and concerns do not coincide with
those of historians and their function in our society; the likely
dangers to our free and democratic society far outweigh those possible
benefits. Indeed, if this
public policy protocol were itself to be subjected to IRB scrutiny,
then the simple formula of "maximum benefits and minimum harm" would
cause it to be sent back for a
complete revision.
There is a far simpler
solution. As recommended by the American Association of
University Professors, American Historical Association, and Oral
History Association, the Federal Government should clarify its
currently ambiguous policy such that oral
history is given a "straightforward exemption" from IRB
review. Insofar as academic institutions might be justly
concerned about their liability in our litigious society, the Federal
Government might wish to encourage local institutions to create simple
web-based forms that describe the characteristics of oral history as a
research methodology, so that researchers can clearly identify the
kinds of research that are "straightforwardly exempt." Individual
researchers could then use that form to declare that her or his long-term research agenda (rather than a
specific research protocol) meets the definition of oral history
described therein. This simple procedure would allow historians
to exempt themselves from IRB oversight until such a time as their
methodology changes to include "human subject research" as defined by
the statute. This summary exemption would not only reduce a
regulatory burden that does not contribute significantly to the
protection of human subjects, but also free local IRBs to focus their
efforts on the kinds of "human subject research" that pose far more
risk to its human subjects.
Historians should continue to
base their research practices on the existing disciplinary standards
for ethical conduct as outlined in our professional guidelines and
monitored through peer review, though we might consider making one
change in our customary practice. In the tradition of academic
self-governance historians might consider forming Oral History Ethics Committees
staffed by locally based historians experienced in oral history.
The simple on-line form described above could provide the researchers
with the means to contact this Committee for advanced peer review of
their research protocol should they desire it. This Committee
could also be available to the local IRB for advice in ambiguous cases
that do merit review in keeping with the OHRP principle of review by
local specialists in the relevant methodology. Yet rather than
state mandated and legally binding, its advice would be based on "best
practices" of ethical conduct as determined by the specialists in the
field. Relying on the traditional academic Committee system would
have all the benefits of additional peer review in advance of research
without any of the drawbacks of drawing oral history into the
regulatory orbit of "human subject research."
To read all of the comments
provided to the OHRP by historians and other academics across the
country, go to: http://schrag.info/irb/historians_comments_to_ohrp.pdf
An introduction to these comments
is provided by Z. Schrag of George Mason University: http://institutionalreviewblog.blogspot.com/2008/02/historians-flood-ohrp-with-comments.html
ORS and IRB
Investigation and Punishment of Alleged Faculty Misconduct
by L. Randall Wray
Professor Bergerson's article
addresses the IRB's role in evaluating proposals for prospective
research that might involve "human subjects research". In
addition, at UMKC the Office of Research Services (ORS) under Vice
Provost Baumann's direction has used the IRB process to investigate and
prosecute past research that his office determines to have involved
human subjects research. I contacted Professors Debbie Dougherty
and Michael Kramer at UM-Columbia, who have conducted and reported
extensive research into activities of IRBs across the nation.
Professor Dougherty told me she had never heard of any other case in
which a university had initiated an IRB investigation of research that
had already occurred. It is clear that UMKC's ORS under John
Baumann's leadership is pushing the IRB process into new frontiers, and
in a manner that raises serious questions about due process and faculty
governance. I first very briefly summarize the facts of my case,
discuss the investigative methods that Baumann described to the Faculty
Senate, and then discuss some of the problems with this process.
In July 2006 after I had
complained of treatment of an IPhD student by ORS staff, the ORS
apparently conducted an internet search of research I had previously
conducted. While the timing could have been coincidental, it will
become apparent that this process could be used as an instrument of
intimidation and punishment by ORS. I was first contacted by ORS
on July 19, 2006, when I was accused of having conducted human subjects
research without approval of the IRB. ORS had found one
co-authored article in which I described some workplace visits I had
conducted in Argentina in 2005, during which I engaged in informal
interviews of workers and supervisors, as well as interviews of top
government officials in their offices. On August 2, 2006 ORS
staff (Megan Good) notified the Dean and Provost that I had "conducted
human subjects research without approval". ORS informed me of
possible sanctions and Baumann ordered me to meet with his staff in
preparation for a hearing before the IRB. I refused to meet with
his staff and asked instead for an immediate hearing before the
IRB. It is important to note that even ORS admits that only the
IRB can determine whether human subjects research has been undertaken,
although ORS had already told the Dean and Provost that I had engaged
in such research before a hearing had been scheduled. To my
knowledge, ORS has never informed the Dean or Provost that its
accusation was a mistake.
During the hearing called by the
SSIRB (21 September 2006), it became obvious that IRB members are not
familiar with research practices used in economics (the subcommittee
that conducted the hearing represented the nursing school, a hospital,
and psychology). There was not a single member who was familiar
with economics--or with related fields such as political science,
sociology, or history. Further, over the course of the
investigation, and in its aftermath, I repeatedly asked both ORS and
the IRB for details regarding faculty rights and responsibilities in
this procedure, and have never received a response--except for vague
and misleading references by Baumann and Professor Moller (IRB) to the
UM Collected Rules and Regulations that
do not address human subject research, nor procedures to be followed
regarding alleged misconduct.
The IRB eventually cleared me on
7 November 2006 of any misconduct (waiting until 27 November 2006 to
notify me of the results), ruling that my "project does not fall into
the category of research which involved human subjects which required
IRB approval". However, it incongruously recommended "corrective
actions" to be taken by me and by the Economics department, apparently
to ensure that my colleagues and I would not undertake future human
subjects research without IRB approval. On 8 December 2006, I
wrote to Professor Moller (IRB) and Baumann (cc'd to the Dean and
Provost) indicating my unwillingness to accept punishment imposed in
the absence of wrong-doing. I have not received any response from
any level of the administration, nor from the IRB. As the
University Collected Rules and Regulations do not cover investigations
of alleged misconduct in this area, and as ORS and the IRB will not
provide the documents that do delineate the procedures, it is not
possible for faculty to know the consequences of failure to comply with
IRB-imposed punishment.
John Bauman later told the
Faculty Senate (23 January 2007) that "hearsay" is sufficient to
trigger such an investigation by his office. He also admitted
that University Collected Rules and Regulations do not provide any
guidance for such investigations. Hence, according to answers
Baumann gave to the Faculty Senate, the Vice Provost establishes the
procedures to be followed regarding proposals that might involve human
subject research, as well as the procedures used to investigate faculty
accused of conducting unauthorized human subject research and the
punishments to be imposed. It does not appear possible for
faculty to obtain the rules, regulations, rights, responsibilities, and
procedures regarding investigations of alleged misconduct.
Finally, at the same Senate meeting, Professor Baumann reported that
there is no appeal of IRB decisions. This does not appear to be
consistent with fair treatment of faculty accused of academic
misconduct.
I conclude by listing four main
areas of concern that the Faculty might want to pursue regarding
investigations of alleged misconduct by faculty. All of these
bring up issues of faculty governance.
1. Should staff of ORS initiate
such investigations, and should findings and punishments be decided by
the IRB? It does not seem appropriate for investigation of
alleged faculty misconduct to exclude substantial involvement of peers,
especially given the lack of expertise of ORS staff in the area of the
specific academic research in question. Even if the ORS and IRB
were familiar with the research area, are these appropriate bodies to
be charged to investigate and punish faculty for alleged academic
misconduct?
2. Rules, regulations, faculty
rights, and procedures must be clear and available.
3. There should be an appeal
process.
4. Why does UMKC's application of
the IRB process that derives from federal law deviate so greatly from
the practices known to be followed at every other university in the
US? Why has ORS expanded the IRB process to include investigation
of previous research and to discipline faculty found to have engaged in
improper (or even proper) conduct when there is apparently no other
university that uses this process for that purpose?
The procedures adopted by Vice
Provost Baumann will result in a chilling effect on faculty
research. No reasonable person would have viewed my research as
anything remotely close to an experiment using experimental subjects; I
did not collect names, ask personal questions, or meet with individuals
in private. These were friendly discussions in the workplace,
asking workers, supervisors, and government officials about a program
that provided jobs to the unemployed. I was simply visiting
Argentina to find out how a program--that was developed based on my
writings--operated. I have never conducted human subjects
research, and never will. Still, I am now reluctant to engage in
any research that Baumann's office might interpret as human subjects
research. For example, last semester one of my PhD students
traveled to India to study a program similar to the one in
Argentina. I refused to supervise this research out of fear of
retaliation against the student, and possibly against me, by ORS.
As a result, I had to ask another faculty member to supervise the
research.
Randall Wray is Professor of Economics
UMKC
Academic Freedom Statement
by Stuart McAninch
The UMKC Faculty Senate formed an
ad hoc committee last semester to draft a statement of academic freedom
principles for use by the Senate and on University websites.
Members of the committee, all of whom belong to AAUP, are Dan Hopkins
(who served as principal author of the statement), Hali Fieldman, and
Stuart McAninch. The statement was submitted to the Senate for
discussion in January. After feedback and revisions, it has been
resubmitted by the committee for action at a future Senate
meeting.
The statement describes the
indispensable role played by academic freedom in scholarship and
teaching, professional preparation of faculty for the exercise of
academic freedom, and the structures within universities and the
academic disciplines and professional fields which regulate faculty
scholarship and teaching. It acknowledges the responsibilities of
administration and faculty for preservation of academic freedom.
The statement affirms students' right to free inquiry and expression,
but also their responsibility (shared with faculty) to base such
inquiry and expression on the application of reason and on sound
academic work.
The immediate context for the
statement is efforts by the Missouri state legislature to establish
"intellectual diversity" legislation (most recently the filing of HB
1315, the "Emily Brooker Higher Education Sunshine Act") and the
inclusion on the UMKC students' helpline of an "Intellectual Diversity
Grievance Form". The committee's document would provide UMKC
faculty with a statement of principles as a resource for responding
critically to such measures and for working to inform the public on the
nature of academic freedom and its role in scholarship and
teaching. It would also serve as a resource for a continuing
series of discussions on academic freedom and inclusion sponsored this
year by the UMKC Faculty Center for Excellence in Teaching (FaCET).
"Intellectual
Diversity" Act Again Raises its Anti-intellectual Head
by David and Patricia Brodsky
On February 5th the first public
hearing by the House Higher Education Committee was held in Jefferson
City on HB 1315, named the "Emily Brooker Higher Education Sunshine
Act" (http://www.house.mo.gov/billtracking/bills081/biltxt/intro/HB1315.htm).
Based on David Horowitz's misleadingly titled "Academic Bill of Rights"
(ABOR), HB 1315 is nearly identical to last year's "Emily Brooker
Intellectual Diversity Act," with the addition of two sentences and new
packaging in the title. Last year's bill was defeated in the
Senate. This year's equally destructive version likewise deserves
to be defeated.
The repackaging of the act's
title is an additional insult to the faculty. The slogan
"sunshine" insinuates that the faculty have something to hide which the
law will force them to reveal, that is, it treats them as
criminal elements. In reality, the content of public education is
publicly available. This tactic of character assassination is
recycled from previous right-wing assaults on higher education, both
nationally and locally, justifying calls for government "monitoring,"
"oversight", "investigation," and (in the UM system) "audits."
The revived UM Columbia AAUP chapter has the right idea of how to fight
such bottom-feeding ploys: investigate and expose the inquisitors.
One of the bill's textual
additions, claiming to define the term "free exchange of ideas", is an
attempt to co-opt the name of the anti-ABOR organization, "Free
Exchange on Campus." It smuggles in additional terms invented by
Horowitz, such as "intellectual pluralism" and "alternative claims of
truth". They are meant to sound vacuous or positive, but, when
viewed in the context of Horowitz's agenda, they turn out to be
additional ways of attacking the professional foundation of academia,
typically through the extreme relativization of knowledge.
Professionalism means that a scholarly consensus based on broad
knowledge, evidence, and reasoned argument determines the best
available truth and the most plausible explanations.
Given his agenda, Horowitz's
terminology enables the imposition of right-wing ideology on higher
education. If the non-right-wing (the super-majority) is foolish
enough to take the bait and imagine that its interests will be
protected and advanced by the bill, it will be in for a rude shock when
it sees how these apparently innocuous buzzwords are actually put into
practice. (For mountains of documentation, see two essays by
David Brodsky, "The Broad Perspective of Academic Freedom" http://cas.umkc.edu/aaup/perspective.htm,
and "'Academic Bill of Rights' Wrongs Academic Freedom" http://cas.umkc.edu/aaup/abor.htm)
Missouri's informal motto is "The
Show Me State." A common understanding of its meaning is that
Missourians are skeptical rather than gullible, and demand evidence
rather than accept things blindly on faith. Because HB 1315 would
in practice outlaw critical thinking, if it passed, Missouri's motto
would of necessity become the "Dumb Me Down State."
So far ABOR type legislation has
failed everywhere it has been introduced. This year the latest
failure was in the US House of Representatives, which removed ABOR
language from its reauthorization of the Higher Education Act.
The states of Colorado and Indiana have already defeated ABOR type
bills in committee.
In an encouraging move, the
Colorado Board of Regents has backed away from the accommodation
agreement it signed under threat of ABOR legislation. Given this
promising precedent, the UM Curators and UM campus administrations
should stop abetting the right-wing takeover of higher education and
instead eliminate their ideological denunication websites.
Strategies
to Defeat the Bill
As usual, the only way to stop
this legislation is for faculty, students, and friends of higher
education to write or call Missouri representatives and senators,
especially the Republican majority in an election year. To find
contact information, go to the Missouri House website (http://www.house.mo.gov/) and
click on "House Members" and then "Directory of Representatives."
Additional contact information can be found by clicking on each
representative's name. While it is important to write your own
rep, don't hesitate to write others as well. If you work in
Missouri and live out of state, you have a legitimate reason to lobby
the legislature, since you pay Missouri taxes.
While the vote in the House last
year was generally along party lines (the Republicans have a 92-71
majority), it is also important to contact the 22 House Democrats who
voted for last year's bill or were absent. The 13 Democrats
representing urban areas (where UM and many other campuses are located)
are highlighted.
The 12 Democrats who voted for
the bill were:
Bringer, 6th district [Marion, Rawls]
Casey, 103rd district [Jefferson Co; Crystal City]
Dougherty, 53rd district
[Independence]
Fallert, 104th district [Jefferson, St. Genevieve]
Harris, 110th district [Franklin, Jefferson, Washington]
Hoskins, 80th district [St. Louis
County]
Hubbard, 58th district [St. Louis]
Meiners, 46th district [Jackson County]
Nasheed, 60th district [St. Louis]
Quinn, 9th district [Monroe City; Audrain, Boone, Chariton,
Howard, Monroe]
Salva, 51st district [Sugar Creek]
Shively, 8th district [Linn, Macon, Shelby, Sullivan].
The 10 Democrats absent for the
vote were:
Bowman, 70th district [St. Louis]
Frame, 105th district [Franklin, Jefferson]
Haywood, 71st district [St. Louis]
Kratky, 65th district [St. Louis]
Meadows, 101st district [Jefferson]
Robinson, 107th district [St. Francois]
Spreng, 76th district [Florissant]
Walton, 91st district [Florissant]
Wright-Jones. 63rd district [St. Louis]
Zweifel, 78th district [Florissant].
In addition, it is also important
to write op-eds and letters to the editor of publications (including
student newspapers) that are read by citizens of the state. As
last year's experience showed, another effective strategy, despite the
received wisdom that state reps resent "outside interference," is to
contact out-of-state opponents of ABOR type legislation and ask them to
write the Missouri legislature, as well as op-eds and letters in
out-of-state publications. It did not hurt that last year's bill
passed by the House was exposed to ridicule in national publications,
and that Cary Nelson, AAUP President, wrote a serious letter to the
legislature and posted it on the AAUP national website. No matter
how insular state legislators may claim to be, they pay attention to
all communications from concerned citizens.
Keith Hardeman, President of the
Missouri AAUP, notes that the MO AAUP meeting in Columbia February 23
will feature Erika Gubrium from the national AAUP office in Berkeley,
who will conduct two one-hour workshops on strategies to fight
"intellectual diversity" legislation. UMKC AAUP At-large
Representative Stu McAninch will be attending that meeting and will
report back to the UMKC chapter.
The
House Committee Hearing
At the February 5 hearing seven
people testifed against HB 1315 and one in favor, in addition to its
sponsor, Representative Jane Cunningham. One of the seven
critics, Professor Victoria Johnson, Co-Vice President of the new UMC
AAUP chapter, described the anti-bill group as "a good mix and very
effective." The group also included Professor Karen Piper, UMC;
two UMC students, Mark Buhrmester and Rick Puig; Keith Hardeman and
David Robinson of the Missouri AAUP Conference; and Otto Fajen from
MNEA (Missouri National Education Association).
While opponents of the bill were
not questioned by the House Higher Education Committee, Robinson
reported that "Rep. Rebecca McClanahan (D. Kirksville, serving on the
Higher Ed Committee) questioned Rep. Cunningham and her anti-Darwinist
witness" extensively and "quite effectively".
As of this writing HB 1315 was
awaiting a vote by the the House Higher Education Committee.
We reprint below the testimony of
Professors Johnson, Hardeman, and Robinson before the House Higher
Education Committee on February 5.
Testimony
of Victoria Johnson
HB 1315 shows intense disrespect
for university faculty throughout Missouri. There is no
justification for the existence of HB 1315. I have never met a
faculty member who thought it appropriate to single out a student for
mistreatment for any reason. Faculty support the many avenues
that presently exist for students to pursue grievances. The Emily
Brooker case shows that grievance systems work within
universities. Yet, several legislators have exploited this
atypical case, and through faulty overgeneralizations concluded that
the problem of student abuse is so serious that the state must step in
to micro-manage course content and the selection of campus
speakers. There is no credible evidence that such abuse
exists. This bill is an insult to faculty.
The text of HB 1315 is
ill-conceived, and ambiguous. This bill invites confusion.
It proposes that the university is obligated to present perspectives
across the ideological spectrum. What spectrum of intellectual
diversity are we supposed to present? Neo-Nazis recently marched
in Columbia to protest the fact that the journalism school had not
turned out one "white nationalist." Are we now mandated to
include fascist scholarship? Should disciplines set up quotas for
speakers among all classes in a department or should every class
present all views? Does this mean that political science courses
have to teach the feminist theories of the state or that the economics
department at MU, which is known to be very "conservative," has to
teach Marxist economics? Should social welfare courses include
Afro-centric views of the family in every class and the ROTC include
speakers from Peace Studies? (Peace Studies currently brings in
speakers from the ROTC, but the chair of this department informs me
that they have never been asked to speak in ROTC classes.)
This bill threatens academic
standards by ignoring the foundational principles of the university,
which valorize the use of reason, critical analysis, and evidence to
assess the credibility of claims. Through different disciplines
faculty learn theories and research methods and critical analysis to
assess competing theories and research. This means that not all
perspectives and claims are as credible as others, given the focus of
the discipline. Differing theoretical perspectives are always
presented within courses, but this legislation asks us to bring in
perspectives that may not be credible. Of particular concern is
the bill's inclusion of religious perspectives along with other
intellectual perspectives. Is this bill an avenue for mandating
the teaching of intelligent design in courses that teach evolution,
even though the former is not based upon credible scientific evidence?
Passing HB 1315 will make it
difficult to recruit and retain the best faculty. I know of two
very good faculty members who are considering leaving MU due to the
disrespect shown to faculty by the Missouri legislature, and
Curators. The university of Missouri is fast gaining a reputation
for where NOT to go. Passing HB 1315 will result in the loss of
the most innovative and creative faculty and students.
Victoria Johnson is Associate
Professor of Sociology, UM-Columbia
Testimony
of Keith Hardeman
Honored Representatives:
The Missouri Conference of the
American Association of University Professors urges you to oppose Rep.
Jane Cunningham's HB 1315, the "Emily Brooker Higher Education
Sunshine Act." This is a bogus solution looking for a fictitious
problem. For years, many have politicized higher education by
making liberal-bias charges that college faculty systematically attempt
to indoctrinate students and lower their grades if they hold certain
political views. That is, in the simplest of terms, untrue.
A clone of political activist David Horowitz's misnamed Academic Bill
of Rights, the Brooker bill would put unsubstantiated (in many cases,
factually discredited) opinions and perspectives on a level playing
field with mainstream disciplinary facts, evidence, and logic.
1. Government intrusion in our
course content is what would, in reality, politicize course content and
significantly reduce the quality of Missouri's public colleges and
universities. This legislation gives biased, unqualified
politicians a significant say in college course content.
Amazingly, this bill would actually allow students to opt out of doing
class assignments simply by saying they say they object to the content.
2. Supporters of this bill cannot
cite one credible, impartial, empirical study to back their
claims--because none exist. Horowitz, the originator of these
bills, has admitted to completely fabricating two of his main
"supporting" stories. If there were so many legitimate examples
of bias, it's stunning that the national leader of this movement would
resort to outright lying for his "evidence." This strongly
suggests that it's the accusers who are demonstrating bias, not the
professors.
3. Missouri's college teachers
are doing a good job, and their work should not be undermined.
Student charges of political bias seldom occur in anonymous course
evaluations. A nationwide study (NSSE, National Survey of Student
Engagement) that includes Missouri shows student satisfaction with
college and their relationships with faculty to be very high,
overall. Other studies conclude that college graduates are better
prepared to deal with their professional and personal futures. By
far, graduates get better jobs, have greater income, have fewer
divorces, commit fewer crimes, and live healthier and longer than those
who don't attend college. Contrary to the beliefs of this bill's
supporters, college graduates probably make better life decisions, not
because professors try to teach them what to think, but rather because
we teach them how to think. Knowledge shouldn't be replaced with
superstition or historical and scientific revision.
4. The bill is redundant in that
there are appeals procedures already in place in all Missouri
colleges. These are more than sufficient to remedy the rare
occasion when a professor abuses academic freedom. Though Emily
Brooker should never have been put in the position of having to engage
it, her case is a perfect example that the existing system works.
5. The Brooker bill is not about
improving education. It's about partisan politics at their
worst. Education content shouldn't be a pawn controlled by the
government, no matter which party happens to be in power (and House and
Senate majorities do change). When the government actually
imposes points of view on experts in institutions beholden to the
search for truth, the reality is that the search for truth is
essentially over.
The AAUP has long been concerned
about fairness in students' grades. We police ourselves quite
well, because, in reality, lowering grades for arbitrary reasons (such
as political differences) seldom happens. While we do not in any
way claim that college professors never act improperly, the odds of a
professor getting that type of unethical behavior past an appeals
committee are very, very low at best. No student should be
targeted for disagreeing, and all should be allowed to challenge their
teacher's points. Honest disagreement with a professor doesn't
entitle students to simply disregard class material they don't happen
to like. College students shouldn't get to hide behind their own
biased ideologies (left or right) and then demand that Ph.D.s
mindlessly accept unfounded, uneducated views as "truth". College
professors are bona fide experts in their fields. Undergraduates
aren't.
Hopefully, Missouri will not have
the dubious distinction of becoming the first and only state to adopt
such a bill. Twenty-eight other states, most of them "Red," have
already shown the good sense to say, "no, thank you" to this unneeded,
redundant, and dangerous legislation. Passage of this bill in the
House and Senate may be throwing out what little leverage we still have
to encourage students to open their minds to actually learn.
Keith Hardeman is Associate Professor
of Communication, Westminster College, and President, MO AAUP Conference
Testimony
of David K. Robinson
Mr. Chairman and honored representatives:
Faculty at institutions of higher
education in our state are overwhelmingly opposed to HB 1315.
Similar bills have been introduced and defeated in twenty-eight other
states over the past five years. We urge you to reject HB 1315,
for the following reasons:
1. HB 1315 would have the
opposite effect of its stated intentions: the "monitoring, tracking,
reporting, and posting"--explicitly required by the bill--would curtail
academic freedom by imposing restrictions on what can or cannot be
taught. Academic freedom means that faculty members, who are
highly trained to evaluate information through critical inquiry,
interact with students who need to learn to do the same.
Legislating so-called "balance" in the classroom will mean that
political opinions or religious beliefs will be given equal weight with
facts and scientific theories, regardless of the consensus of
scientists and scholars. The best way to assure the intellectual
diversity that we really need in higher education is to promote
academic freedom, to keep a free market of ideas alive and
flourishing. This legislation would restrict that market by
stifling inquiry and debate.
2. In a complex education system
involving thousands of people, things occasionally go wrong, so
grievance mechanisms are in place in all Missouri colleges and
universities. These procedures work well, and this legislation
would harm rather than improve the grievance systems. The
unfortunate Brooker case was satisfactorily resolved, once her
administration was informed about it. Such extreme cases are very
rare, and it would be a tragic mistake to destroy the whole educational
system in a vain attempt to save it from such a rare problem.
3. HB 1315 would open the
learning process to partisan battles that really have no place in most
classrooms. Rather than protecting students from unnecessary
politicization, this bill will insert politics into classes, such as
astronomy and biology, where politics does not belong.
4. Under this bill, colleges and
universities will incur significant costs--both money and time.
Institutional oversight for "diversity assessment" will be an enormous
job for someone specifically hired for that purpose. Other states
have calculated the costs of similar bills: annual costs have been
projected at $4.2 million in Florida, $348,000 in Montana, and $130,000
per institution in Virginia. If this becomes another unfunded
mandate, faculty and staff will have even less time for important
duties of course preparation, grading, tutoring, research, student
recruiting, etc.
5. Nationally the main proponents
of so-called "intellectual diversity" (ID) laws are the American
Council of Trustees and Alumni (ACTA) and David Horowitz, who claim to
be defending students from "indoctrination" but present no credible
evidence that students are not free to follow their interests.
Other states have rejected "ID laws" because they feared the
unnecessary politicization that would be brought into their
universities. I am quite sure that Horowitz and his followers
will never be satisfied until they eliminate the views that they
disagree with. They are in the business of destroying academic
freedom, not protecting it. Please do not help them make Missouri
a leader in such destruction. Please reject HB 1315!
David K. Robinson is Professor of
History, Truman State University, and Vice-President, MO AAUP Conference
Official UMKC
honors foe of academic freedom; UMKC community should honor its champion
by David Brodsky
On September 17, 2007 the UMKC
Law School celebrated the 50th anniversary of the appointment of
Charles Evans Whittaker to the Supreme Court. Whittaker was a
1924 graduate of the Kansas City School of Law, later incorporated into
UMKC. Kenneth Starr, the special prosecutor who harassed
President Clinton over trivia (while avoiding much more serious
issues), delivered the keynote address.
The Winter 2008 issue of Res Ipsa, publication of the UMKC
School of Law, devoted its cover story to the Whittaker
celebration. The story was presented as an encomium to a model
lawyer and judge. One of Whittaker's former Supreme Court clerks
ascribed to him, inter alia, the virtues of courtesy, superior
intellect, diligence, patience, thoroughness, fairness, and
objectivity. Several other voices dismissed criticisms of the
judge as "misrepresentations," "misguided," "unjustified," and "a
product of misinformation." The story, however, omits Whittaker's
crucial role in a political purge of a tenured professor at his own
alma mater.
Political
purge at UKC
The purge at University of Kansas
City occurred in 1953 during the McCarthy period, when as many as six
hundred academics and teachers across the country were fired solely
because of their progressive political affiliations and opinions.
Whittaker at the time held the position of District Judge.
The following article is based on
an unusually informative critical account of his career: Whittaker: Struggles of a Supreme Court
Justice, by Richard Lawrence Miller (Westport, CT: Greenwood
Press, 2002). Miller, a widely published scholar of American and
German history, demonstrates a meticulous attention to detail rivalling
that of the subject of his investigation.
The victims of the UKC purge,
which blatantly violated their academic freedom, were tenured associate
professors Horace B. Davis, a labor economist and author of four books,
and Ralph Spitzer, a physical chemist. Davis' fate under the
academic blacklist was reviewed in a previous issue of Faculty Advocate ("'Academic Bill of Rights'
Wrongs Academic Freedom," section E; issue No. 19, November 2005).
Davis, who held degrees from
Harvard and Columbia, wrote and taught what he believed, rightly
abjuring the pretense of political neutrality. Nevertheless, he
"insisted he never penalized students for disagreeing with his
political beliefs," and an AAUP investigation which condemned his
firing gathered "'impressive testimony that he had not abused his
position, and that his integrity was manifested in discussions with his
colleagues'" (quoted in Miller, p. 78).
As a result of anti-communist
vigilantism by the President of UKC and certain trustees, Davis was
hauled up before the inquisitorial Senate Internal Security
Subcommittee in 1953, then holding hearings in Chicago to purge
progressive University of Chicago faculty. Along with Davis,
Spitzer was "caught in the University of Chicago dragnet" (79).
Spitzer had previously been politically purged by the President of
Oregon State College. The pretexts for his dismissal were
Spitzer's support for 1948 Presidential candidate Henry Wallace and his
letter to the editor of a professional journal asking colleagues to
keep an open mind about the findings of Soviet geneticist Trofim
Lysenko.
Protests by academics against
Spitzer's firing, including future Nobel Prize winner Linus Pauling and
even anti-communist Sydney Hook, did not succeed in reinstating
him. Nevertheless, Spitzer was hired by UKC, despite the
statement by UKC's president that "'no communist should be allowed to
teach in the United States, let alone at UKC" (80). Spitzer
apparently excluded his political opinions from his teaching, Time Magazine noting that he
"'stuck pretty close to chemistry' in class" (80).
The Senate subcommittee hearings,
which attacked Davis' teaching, research, and extra-mural political
statements and activities, constituted government intrusion into the
content of education, a responsibility entrusted to the professional
judgement of faculty. The inquisition itself grossly violated
academic freedom in all its ramifications, as formulated in the AAUP
"1940 Statement of Principles on Academic Freedom and Tenure."
Responding to the purges of the McCarthy period, the 1967 Supreme Court
decision affirming academic freedom as a First Amendment right rejected
such intrusions as unconstitutional.
The subcommittee hearings had
their intended effect, and the corporate media (Chicago Tribune, Kansas City Times)
assisted the purge through widely distributed high-profile coverage
siding with the inquisitors. Several UKC Trustees continued the
inquisition by requiring Davis to confess to membership and activism in
the Communist Party and supporting "'Communist activities'."
"Communist activities" then were
as vague a term of opprobrium as "terrorism" is today, and for the same
reason. Any criticism of government policies could be silenced or
dismissed by applying the communist/terrorist label to the
critic. The denunciation label was applied broadly and
indiscriminately to left of center opinion generally.
During the McCarthy period an
admission of "communist" activity or "sympathy," whether current or in
the past, meant instant termination from one's job and, in most cases,
the end of academic careers. The President of UKC had already
declared this to be institutional policy. Such draconian measures
gave hunted academics little choice but to invoke the right of
non-self-incrimination encoded in the 5th Amendment.
But invoking constitutional
rights by refusing to answer incriminating questions was itself a
pretext to fire non-compliant faculty. Non-cooperation with the
inquisition was taken as prima facie evidence of guilt. Escape
from the legal trap was possible only if faculty took the tacit bait
offered by inquisitors to save themselves by denouncing their
colleagues. Faculty who retained their integrity lost their jobs
(See Ellen Schrecker, No Ivory Tower,
for a thorough discussion of this issue).
Davis' statement to the Trustees
was a forthright defense of his teaching and research, of academic
freedom, of encouraging critical thinking in his students, and of the
US Constitution. "'I do not carry on propaganda in my
classroom. My philosophy of education would preclude such a
thing. My students are encouraged to think for themselves.
Discussion in my classes is free and disagreement is not
penalized. I wish I could say the same for the university as a
whole.... I recognize the authority of the United States
Constitution and in my modest way hope to continue trying to make it
work'" (84).
Judge
Whittaker dismisses Davis' lawsuit
The UKC Trustees fired Davis for
refusing to answer their incriminating questions. In fact, he was
fired for exercising a constitutional right. On this and other
grounds Davis filed suit to be reinstated at UKC, and District Judge
Whittaker heard the case.
Under Missouri law at the time,
tenured faculty could be dismissed for "just cause," but the courts
could review the decision. Davis' lawyer, Fyke Farmer, argued
that the Trustees did not have "'the right to discharge a member of the
faculty for exercising his constitutional rights." Most
important, "'there was no question at any hearing before the trustees
of the university as to Dr. Davis' competency, no question of
negligence of duty ...'" (86). The Trustees "'were seeking to
ferret out from him ideas or acts or opinions that were, as I see it,
wholly unrelated ... to the performance of his duties as a member of
the faculty'" (86). As Miller correctly asserts, "the Davis case
addressed the core purpose of tenure--protection of academic freedom"
(86).
Davis' lawsuit included a charge
of conspiracy between Senator Jenner, chair of the subcommittee, and
the UKC Trustees, to fire him on illegitimate grounds by depriving him
of his constitutional rights. Davis had discovered the existence
of correspondence "between certain trustees and the Internal Security
Subcommittee (85)." He also "reported that a university attorney
told him that trustees Arthur Mag and Joyce Hall 'had been pressing for
drastic action'," and "believed that trustee Raymond Hall was also
seeking his dismissal." The conspiracy charge was not
far-fetched. "Earlier the AAUP had revealed a history of sub rosa
conduct by UKC's president, conduct going so far as to enlist
cooperative students in circulating anonymous letters attacking a
colleague" (89).
As Farmer explained, "'if ... the
Senate Internal Security Subcommittee ... investigation for which he
was subpenaed [sic] was instituted by collusion between the university
and certain trustees, and then he was called up before the board of
trustees in pursuance to this collusion, of this conspiracy to get him
out of the university and to injure him, and he was put the same
questions [by the trustees as by the Senate subcommittee] ... a
discharge could not be based upon that because a Federal statute makes
it a crime'" (85).
Judge Whittaker's dismissal of
Davis' suit, mostly on technical grounds, abetted the political purge
and its gross violation of academic freedom. Reliance on
technicalities (e.g. counsel "was not admitted to practice before the
district court" [89]) helped Whittaker evade substantive issues.
Thus he refused to address the questions of violation of Davis'
constitutional rights and of collusion or conspiracy between the Senate
committee and UKC trustees. He denied Farmer's motion to see
their correspondence and to examine the trustees. The issue of
violation of academic freedom is likewise notable by its absence.
Whittaker's ruling was also
marked by logical and factual sloppiness. He stated that Davis
"had a constitutional right to express himself but no constitutional
right to be a school teacher" (87). The latter was an absurd
claim that Davis never made. Whittaker's factual sloppiness,
according to Miller, may have been calculated. "Judge Whittaker,
whose precision on factual elements was legendary, misdescribed Horace
Davis as a public school teacher, a misdescription allowing Whittaker
to cite as precedents cases involving public schools.... Did he
merge the two [teachers and academics] as a rhetorical technique to
escape facts and legal consequences he wanted to avoid?" (87).
Whittaker's false identification of Davis as a school teacher also
helped him avoid the issue of academic freedom, which at that time
applied only to university faculty.
Whittaker's
politics
Miller reasons that "Whittaker
evaded accountability by insisting that his decisions were compelled by
facts and law in a case," unaffected by his own judicial philosophy or
political orientation. At the same time, the judge "was willing
to disregard precedents if he found them too inconvenient" (76).
But invoking technicalities, evasion of substantive issues, and
slipshod treatment of logic and facts could not conceal Whittaker's own
political bias. The strength of that bias, which he was unable to
repress fully, may be a partial explanation for the faults in his
ruling.
In his personal mark up of Davis'
complaint, Whittaker associates the faculty member with "'espionage,'
'sabotage,' 'infiltration by persons who are or may be under the
domination of foreign government or organizations controlling the world
Communist movement'" (86). The judge's published opinion stated
that the trustees "'would have been derelict in their duties, and would
have destroyed the University, had they not dismissed him'" (89).
According to Whittaker's clerk at that time, strong political
statements were "atypical of Whittaker's legal writing" (89).
The political bias found in the
Davis ruling was not an anomaly. As a justice on the Supreme
Court, Whittaker found no fault with an Arkansas statute requiring
teachers to disclose all groups to which they belonged or made
donations. His decision was not affected by information supplied
by the Little Rock "Citizens Council" that such disclosure would be
used to dismiss any teacher involved in "the Urban League, the American
Civil Liberties Union, or the AAUP" (87).
After his retirement Whittaker
continued to express similar opinions in articles and speeches:
"'serfdom in an atheist state;" "'Communist penetration and influence
inside some sections of the Negro movement is a subject of growing
concern to the FBI and the White House';" "'the growing activity of
known Communists on the campuses'" (76-77). Likewise, he stated
that the civil rights movement advocated Communism (77).
Whittaker's judicial opinions
were extreme even in the era of US political purges. At about the
same time as the Davis case, the US Supreme Court upheld the right of
academics to invoke the Fifth Amendment at Congressional
hearings. Justice Clark wrote: "'Privilege against
self-incrimination would be reduced to a hollow mockery if its exercise
could be taken as an equivalent either to a confession of guilt or a
conclusive presumption of perjury'" (87).
As Miller demonstrates,
Whittaker's personal and business connections with powerful corporate
and political figures, such as Roy Roberts, president and general
manager of the Kansas City Star,
and President Dwight Eisenhower's brother, Arthur, of Kansas City's
Commerce Trust Company, were reponsible for his rapid judicial
ascent. Whittaker's political bias was likewise a significant
factor in his appointment in December 1955 to the UKC Board of Trustees
(not to mention services rendered by his ruling on the Board's behalf),
and in his Supreme Court nomination in March 1957, in which "political
considerations were crucial" (35).
To their credit, Davis and Farmer
both publicly opposed Whittaker's nomination to the Supreme
Court. Davis sent a letter to the Senate judiciary committee, and
Farmer testified at the nomination hearing.
Conclusion
UMKC's celebration in 2007 of a
powerful foe of academic freedom at his own institution, along with an
account which suppresses knowledge of the sordid part he played, would
not merit more than a historical footnote, were it not for the fact
that since September 11, 2001 there has been a nationwide revival of
McCarthy era assaults on academia (among many other targets).
So far, tenured faculty Sami
al-Arian and Ward Churchill have been fired for their political
beliefs, and Norman Finkelstein and Mehrene Larudee have been denied
tenure on purely ideological grounds. An uncounted number of
contingent faculty (now constituting over two-thirds of the total
academic workforce), few of whose cases have been recorded, have
suffered similar fates. Likewise unrecorded but highly
significant is the intimidating effect these political purges have had
on faculty everywhere.
David Horowitz's "Academic Bill
of Rights" derives from the same "new McCarthyist" agenda. As
Horowitz has repeatedly stated (despite obfuscations, cant, and
misleadingly innocuous packaging--see "'Academic Bill of Rights'
Wrongs Academic Freedom"), its goal is to establish mechanisms to
further weaken academic freedom, intimidate the faculty into compliance
with ultra-conservative diktat in all aspects of academic life, purge
non-right-wing faculty (i.e. the mainstream super-majority), and
replace them with far right loyalists.
UMKC and UM administrators,
certain UMKC trustees and UM Curators, the state legislature, and the
Governor have taken a leading role in this campaign. Most
notoriously, upper administrators in the UM System supported the bill
while it was being considered by the legislature. An even greater
betrayal of their responsibility to defend academic freedom and
institutional autonomy occurred when upper administrations at all four
UM campuses established websites specifically dedicated to student
political denunciations of faculty.
They did this in spite of the
fact that the Brooker Act, which called for such intimidating
mechanisms, was defeated in last's year's legislative session.
Their lame excuse that the websites would pre-empt legislation was
quickly belied when the bill's sponsor announced that she would
reintroduce it in the 2008 session. The websites actually pave
the way for passage of the bill, since they have become a "precedent"
demonstrating institutional "agreement" with the draconian measures
imposed by the legislation.
Today the bill is back and the
websites have not been taken down. Unless the faculty and its
allies exert organized pressure to defeat the bill and dismantle the
websites, the outcome is a foregone conclusion. The contingent
faculty, who constitute over three-quarters of the instructors at UMKC
and the other UM campuses, will be sitting ducks for rightist
ideological shakedowns.
Official UMKC's celebration of
Justice Whittaker, an enemy of academic freedom--the foundation of
higher education in the United States and, increasingly, around the
world--is yet another indication that nothing essential has changed
since the end of the Gilliland administration. It will be up to
faculty, students, sympathetic administrators, trustees, curators, and
legislators, as well as the public at large to stop this aggression in
its tracks. Otherwise, to recast Whittaker's words, if the
genuine friends of academic freedom are derelict in their duty, forces
hostile to it will factually destroy higher education in Missouri.
Postscript
In 1961 Horace Davis established
the non-profit Marian Davis Scholarship Fund in memory of his
wife. A recent brochure states that Marian was "an advocate for
peace, racial justice and the rights of working people," and "the Fund
honors this talented teacher and her family's long history of standing
up to McCarthyism." Later the Fund added the name of civil rights
activist Norton Putter. To date the Davis-Putter Scholarship Fund
"has awarded well over 1,100 scholarships to students who represent the
values Marian, Horace and Norton held dear."
Rather than official celebrations
of regressive forces, the UMKC community should honor the memory of one
of its outstanding and courageous faculty, whose work for positive
change in academia and society continues to bear abundant fruit in the
scholarship fund he created.
MU AAUP
Chapter Reestablished
Congratulations are in order to
the faculty at the UM Columbia campus for reviving their AAUP
chapter. Their new Chapter officers include President Eddie
Adelstein in health sciences, an experienced defender of faculty
rights; Co-Vice Presidents Victoria Johnson and Stephen
Montgomery-Smith, and Secretary-Treasurer David Brunsma. The
chapter has had two meetings with an attendance of 20-25 people from
across the campus. Plans include putting up a chapter website, as
well as a Missouri Legislative, Curator, and Administrative
Accountability website that will detail the policies and actions that
are damaging the quality of education at the MU system. This site
will be cosponsored by the AAUP, the MNEA, and Free Speech on Campus.
AAUP
Sponsors Third Tenure Workshop
On Friday, February 15 from 3:30
till 5:30 in room 307 Education, the chapter will provide its third
tenure workshop. As in the past the format will consist of brief
remarks by a faculty panel, followed by a question and answer session
about any and all aspects of the tenure process. Attendees at
past workshops report that they found them practical, informative, and
very helpful in preparing their tenure dossiers.
This year's panel will include
Charles Wurrey, A&S Dean's Office; Burton Dunbar, Chair, Art and
Art History; Tony Persechini, SBS, member, campus P&T Committee;
Libby Stoddard, recently tenured in Physics; and Hali Fieldman,
Conservatory of Music. Pat Brodsky will chair.
All non-tenured faculty are urged
to attend, and bring their questions and concerns.
On October 26, 2007 the Chapter
held a well-attended forum on the Institute for Labor Studies.
Institute Director Judy Ancel outlined the Institute's history,
achievements, and goals, and stressed its importance as one of a small
number of programs in the country providing education and training on
labor issues for university students and the labor community
itself. Ancel and other panelists reviewed the current threat of
cancellation by the Administration and a productive discussion of
strategies followed. A petition strongly supporting the
continuation and funding of the Institute has been circulated among
faculty, staff and students, Kansas City unions and other
organizations, and a national readership. In addition, signatures
were gathered at "Breaking the Silence," a major regional conference on
social issues held in Kansas City, Kansas the following weekend.
The chapter executive committee
continues to receive requests for advice from faculty both at UMKC and
at other metropolitan area institutions. The cases involve
infringement of faculty rights, violations of faculty governance, and
arbitrary acts by administrators. Advising faculty on their
rights and helping them develop strategies for defending themselves
continues to be one of our most important functions.
Several Chapter members attended
the annual meeting of the Modern Language Association in Chicago.
The MLA scheduled half a dozen panels on academic freedom, including
three by the national AAUP. In one session national President
Cary Nelson shared the podium with Barbara Weinstein, President of the
American Historical Association. Among major issues raised in the
session were the proliferation of "intellectual diversity" bills around
the country and the dangerous increase in the arbitrary power of IRB's
to control research (see this issue for clusters of articles on both
these subjects).
The news from Emeritus Professor
Alfred Esser and his wife, Karin, is that their home in San Diego was
missed by the autumn fires, and they are settling in well.
Ever so often activist
organizations should recall their history. The UMKC AAUP chapter
was revived in 1999. Here is a retrospective list of founders and
officers.
The organizing committee included:
Susan Adler, Education
Stuart McAninch, Education
Tim Thomas, Chemistry
Bruce Wenner, Mathematics.
Founding officers:
Stuart McAninch (President 2000-2004, At Large
Representative, 2004-present)
Pat Brodsky, Foreign Languages and Literatures
(Secretary 2000-2004, President 2004-2008, Editor, Faculty
Advocate 2000-2008)
Tim Thomas (Vice-President/Treasurer 2000-2002)
Susan Adler (At Large Representative 2000-2002,
Chair, Grievance Committee 2002-present)
Phil Olson, Sociology (Chair, Membership Committee
2000-2001).
Other former officers:
Ed Gogol, SBS (Vice President/ Treasurer 2002-2004)
Alfred Esser, SBS (Vice-President/Treasurer
2004-2007)
Dan Hopkins, Geosciences (Chair, Membership
Committee 2001)
Marino Martinez-Carrion, SBS (Chair, Membership
Committee 2002-2004)
Fred Lee, Economics, (Chair, Membership Committee
2004-2006)
Bibie Chronwall, SBS (At Large Representative,
2002-2003).
Current officers:
Pat Brodsky, President
Roger Pick, Business, Vice-President/Treasurer
(2007-)
Karen Bame, SBS, Secretary (2004-)
Stuart McAninch, At Large Representative
Scott Baker, Foreign Languages and Literatures,
Chair, Membership Committee (2007-)
Susan Adler, Chair, Grievance Committee.
Incentive
Plan for Recruitment: A Historic Satire
In WS 1983 the following memo
appeared in faculty mail boxes all over campus. Purporting to
come from the Vice Chancellor for Vice Chancellors, it outlined a plan
for increasing enrollments, an issue that is still with us a quarter of
a century later. We've lived through a lot since then, and,
unfortunately, some outrageous things no longer seem so unlikely.
We thought you might enjoy a look at this historic satire circulated by
a disguised faculty member. Be sure to take a look at the list of
administrators in the right-hand column.
[Letterhead reads as follows]
Office of the Chancellor
University of Missouri - Kansas City
5100 Rockhill Road
Kansas City, Missouri 64110-2499
April 1, 1983
To: All Faculty
From: Frederick H. Johnson
Associate Vice Chancellor for
Vice Chancellors
Subject: Faculty Incentive Encouragement Plan
The Chancellery is pleased to
announce the establishment of a new University-wide plan to encourage
faculty initiative. This plan, modelled on similar programs in
Business and Industry, will serve to recognize heretofore unsung -- and
unrewarded -- faculty efforts to improve UMKC. In particular, we
want to provide a means to encourage efforts that increase the size of
our student body, and other such endeavors.
It is not often realized that the
many faculty members who speak to students at primary and secondary
schools, go to a lot of meetings, spend lots of time on the campus,
play with computers, complain and go to China make a greater
contribution to UMKC than is usually realized.
Hopefully, the Faculty Incentive
Encouragement Plan will correct all of this. Here is how it
works. Once a student has been admitted to UMKC, he/she or she/he
will be asked whether a particular member of the UMKC faculty
influenced his/her or her/his decision to apply. Each student
recruited will count as one point, and the points will be accumulated
over an academic year. 25 points will entitle a faculty member to
a set of luggage. 50 points will will a trip for two to any
county in Missouri that has an MU extension office. The high
total for the year will win a trip to Hawaii! (Return fair [sic]
is the responsibility of the winner.)
During the school year running
totals will be flashed on the Photonic Information Transmission Module
at the corner of Cherry Street and Volker Blvd. And to make
things even easier, we will be giving away a toaster to the first one
hundred students who register, and the student who registers for the
most hours will receive a microwave oven!
This is all part of our ongoing
plan to make UMKC into the First National Bank of Knowledge. We
want it to work. With your help, it will.
[Right hand column reads as follows]
Chancellor
(816) 276-1101
Vice Chancellor/Academic Affairs
(816) 276-1107
Vice Chancellor/Administrative Affairs
(816) 276-2754
Vice Chancellor/Development
(816) 276-1105
Vice Chancellor/Student Affairs
(816) 276-1141
Vice Chancellor/Vice Chancellors
(816) 276-1234
Vice Chancellor/Electronic Signs
(816) 276-5678
Vice Chancellor/Feeble Excuses
(816) 276-9101
Vice Chancellor/No Raises
(816) 276-$$$$
Vice Chancellor/Foreign Travel
(816) 276-1121
Vice Chancellor/Health Care and Investment Counselling
(816) 474-4100
Vice Chancellor/Administrative Reorganization
(816) 276-1101
Vice Chancellor/Many Things
(816) 276-1101
Vice Chancellor/Latest Trendy Nonsense
(816) 276-2762
Vice Chancellor/Research That Doesn't Involve China, Computers, Life
Sciences
Disconnected
Vice Chancellor/Cleveland
(216) 276-1101
JOIN AAUP!
DEFEND ACADEMIC FREEDOM!
They're at it again. Forces hostile to academic freedom and
quality education are trying to shape the university in their own
distorted image. Join AAUP and serve the best interests of your
students, your institution, and your community.
The entire contents of each issue of The Faculty Advocate (except for
public domain material) is copyrighted. The Faculty Advocate, February
2008, Copyright 2008 by the UMKC Chapter of the American Association of
University Professors. All rights returned to authors upon
publication. AAUP chapters, state conferences, and the national
organization have permission to reproduce and distribute.
Permission for other non-profit publishers is a formality, but UMKC
AAUP asks them for the courtesy of requesting it. Contact the
Editor, Patricia Brodsky: e-mail: brodskyp@umkc.edu
Membership
Open to all faculty
Full-time tenured and tenure-track
Full-time non-tenure track
Part-time
Graduate teaching assistants
Membership requires payment of
both local and national dues
Local UMKC
chapter dues
$10 per academic year.
Send payment to Roger Pick, Bloch School 237, 816-235-2336, or pickr@umkc.edu
Please make checks payable to "UMKC-AAUP Chapter."
50% off
a) Entrant:
Nontenured full-time faculty, new to the AAUP, for first four years
of membership
b) Joint: Full-time faculty
member whose spouse or partner is a full-time member
c) Retired
75% off
Part Time: Faculty
paid on a per course or percentage basis
$10/yr
Graduate: Person
enrolled as graduate student at an accredited institution; five-year
limit
Please note that national dues also cover Missouri State
Conference dues (but not local UMKC dues)
The Faculty
Advocate, Vol. 1, No. 1 (September 2000)
The Faculty
Advocate, Vol. 1, No. 2 (December 2000)
The Faculty
Advocate, Vol. 1, No. 3 (February 2001)
The Faculty
Advocate, Vol. 1, No. 4 (April 2001)
The Faculty
Advocate, Vol. 2, No. 1 (October 2001)
The Faculty
Advocate, Vol. 2, No. 2 (December 2001)
The Faculty
Advocate, Vol. 2, No. 3 (February 2002)
The Faculty
Advocate, Vol. 2, No. 4 (April 2002)
The Faculty
Advocate, Vol. 2, No. 5 (June 2002)
The Faculty
Advocate, Vol. 3, No. 1 (September 2002)
The Faculty
Advocate, Vol. 3, No. 2 (December 2002)
The Faculty
Advocate, Vol. 3, Nos. 3-4 (April 2003)
The Faculty
Advocate, Vol. 4, Nos. 1-2 (December 2003)
The Faculty
Advocate, Vol. 4, Nos. 3-4 (April 2004)
The Faculty
Advocate, Vol. 5, No.1 (August 2004)
The Faculty Advocate,
Vol. 5, No. 2 (October 2004)
The Faculty Advocate,
Vol. 5, No. 3 (February 2005)
The Faculty Advocate,
Vol. 5, No. 4 (May 2005)
The Faculty Advocate,
Vol. 6, Nos. 1-2 (November 2005)
The Faculty Advocate,
Vol. 7, No. 1 (October 2006)
The Faculty Advocate,
Vol. 7, Nos. 2-3 (April 2007)
The Faculty Advocate,
Vol. 8, No. 1 (October 2007)