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

AAUP chapter history

Historic UMKC satire

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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.


News of the Chapter

        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.


AAUP chapter history

        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


AAUP Dues Information

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." 


National dues

Varies by job classification and state--click this link for up-to-date information

Discounts on national dues for following categories

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)


Back Issues

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)




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