Legal Issues in Academic Research (2003)

Legal Issues in Higher Education
13th Annual Conference
October 6, 2003
Donna Euben, Staff Counsel

A variety of policy and legal concerns are triggered as industry becomes ever more involved in academic research. Federal government regulation of academic research is also an issue, including how such laws apply post-September 11. In addition, there are concerns about the scope of institutional review boards (IRBs), and conflict-of-interest policies.

I. Corporations and Academic Research

The involvement of corporations in higher education has led to threats to academic freedom in research when corporate interests clash with the unfettered pursuit of truth. As Johns Hopkins University general counsel Estelle Fishbein predicted in 1985:

During the next twenty-five years, the lure of the corporate dollar may just as insidiously lead to the surrender of important academic freedoms to big business. . . [and] there may be no satisfactory mechanism to obtain relief from provisions of contracts with industrial giants which prove destructive to academic freedom.

"Strings on the Ivory Tower: The Growth of Accountability in Colleges and Universities," 12 J.C. & U.L. 381, 398 (1985). As AAUP declared in 1915, "The distinctive social function of the scholar's trade cannot be fulfilled if those who pay the piper are permitted to call the tune." AAUP, "1915 Declaration of Principles on Academic Freedom and Academic Tenure," Policy Documents & Reports (hereafter Redbook) 291 (2001). See generally Donna R. Euben, "Corporate Interference in Research," Academe (Nov.-Dec. 2000).

A. Some Background on Corporate Funding Issues

Some administrations and faculty have raised concerns about the increased reliance of higher education institutions on corporate sources of funding. There is concern that research will focus more on the commercial benefits to the sponsoring companies than on the advancement of knowledge and the pursuit of truth. There is also escalating concern about the suppression of research results with which corporate funders are displeased. As one scholar noted, these "outside funds often come with strings attached," and such externally funded academic research can threaten academic values by distorting the viewpoints, claims, and research agendas of scholars and by insisting that research results be kept secret. Rebecca S. Eisenberg, "Academic Freedom and Academic Values, 66 Tex. L. Rev. 1363 (1988) (hereafter "Academic Freedom and Academic Values").

    • The American Council on Education and the National Alliance of Business, in a 1998 report, estimated that corporate funding of university research was nearly 9 percent (nearly $2 billion).
    • "Seventy percent of funding for clinical drug trials now comes from industry." Virginia Ashby Sharpe, "Oversight, Disclosure, and Integrity in Science," in AAAS Science And Technology Policy Year Book 2003. < www.aaas.org/spp/yearbook/2003/yrbk03.htm >.

The need for industry funding must be considered within the context of the mission of a college and university. One researcher summarizes some of the institutional considerations:

In seeking support from industrial and corporate sponsors, the institution needs to be aware of the range of significant issues that must be addressed relative to such sponsorship. For example, support from industrial sources is generally of shorter duration and less stable for long-term basic (or fundamental) research projects than from federal sponsors. The work tends to be more directed than funding via grants and cooperative agreements from the federal government (although not much different than the restrictions placed on some contract activities supported by the government) and there tend to be more deliverables required (including more frequent progress reports). Although there are fewer cited regulations than in federal awards, certain terms and conditions (notably related to ownership and management of intellectual property and to restrictions on publication) are far more difficult to negotiate and often cause extensive delays in finalizing research agreements.

Julie T. Norris, "Research and Sponsored Programs" (hereafter "Research and Sponsored Programs") at 18-10 < http://research.musc.edu/gca/forms_pdf/18resear.pdf >.

The outgoing editor of the New England Journal of Medicine, Dr. Marcia Angell, recently called for reforms to mitigate the effect of the "Faustian bargain" that medical schools have had with the drug industry: "When the boundaries between industry and academic medicine become as blurred as they are now, the business goals of industry influence the mission of medical schools in multiple ways." She wrote:

Why shouldn't clinical researchers have close ties to industry? One obvious concern is that these ties will bias research, both the kind of work that is done and the way it is reported. Researchers might undertake studies on the basis of whether they can get industry funding, not whether the studies are scientifically important. . . . Of even greater concern is the possibility that financial ties may influence the outcome of research studies. . . . [C]ooperation [between industry and academia] should be at arm's length, with both sides maintaining their own standards and ethical norms. The incentives of the marketplace should not become woven into the fabric of academic medicine. We need to remember that for-profit businesses are pledged to increase the value of their investors' stock. That is a very different goal from the mission of medical schools.

Marcia Angell, "Is Academic Medicine for Sale?," < http://lists.essential.org/pipermail/commercial-alert/2000/000020.html >.

See generally David Bollier, "The Enclosure of the Academic Commons," Academe: Bulletin of the American Association of University Professors (hereafter Academe) (Jul.-Aug. 2002).

B. AAUP Policy

AAUP's Statement on Corporate Funding of Academic Research provides some guidance to institutions generally, and to faculty in particular, on how to ensure that conflict-of-interest policies are properly developed and implemented. Suggestions include:

    • faculty should have a "major role" in developing and implementing the institution's policy "with respect to research undertaken in collaboration with industry";
    • faculty should work to ensure "that the source and purpose of all corporate-funded research contracts . . . can be publicly disclosed" and that research results are not "subject to the sponsor's permission for publication";
    • faculty should participate in "the periodic review of the impact of industrially sponsored research on the education of students, and on the recruitment and evaluations of researchers . . . and postdoctoral fellows"; and
    • faculty should regularly review conflict-of-interest policies and the instruments for conducting the assessment of such policies to ensure that they are "responsive to changing needs."
      Academe (May-June 2001)

 

C. Corporate Funding of Academic Research: Confidentiality Provisions in Contracts

1. Some Background

Issues that arise in terms of the types of contracts entered into between universities and industry include:

    • who owns the intellectual property created by the funding?
    • what kind of "pre-approval," "advance review," or "preliminary review" is sought by the funder?
    • who owns the equipment purchased under the project?

"Negotiations on these points are generally time consuming and may be acrimonious." Research and Sponsored Programs at 18-17.

    • A 1998 working group of the National Institutes of Health (NIH) reported to the director that contracts received by universities from industry "present just about every type of clause that universities cite as problematic." < www.nih.gov/news/researchtools/ >.
    • A 2000 study published in the Journal of the American Medical Association found that only 12 percent of university conflict-of-interest policies tried to limit delays on the publication of research demanded by corporations.

2. Some Recent Controversies

Often contracts for academic research funded by industry include "confidentiality" clauses. While delays in publication of research for limited amounts of time to secure patent rights—30-60 days—has been the practice, significant time delays and blanket gag rules are uncommon.

University of Toronto: Dr. Nancy Olivieri, a professor of medicine and pediatrics, had her research funds cut, was removed as director of the department of haemoglobinopathy, and was threatened with a lawsuit by Apotex, a corporate sponsor of her clinical drug trials, after she attempted to reveal her findings about unexpected risks to her patients. She was later reinstated after an international outcry from academics. After a two-year investigation a faculty committee of the Canadian Association of University Professors (CAUT) concluded that the "hospital and the university should have defended vigorously the right of clinical researchers to disclose risks to research subjects and patients. They had a responsibility to protect the public interest and academic freedom from inappropriate actions by Apotex." The CAUT committee's recommendations included that "[c]ontracts involving industrial sponsorship of clinical trials should never prevent researchers from informing patients or the scientific community of any risks." Olivieri noted that the nondisclosure agreement she signed was permissible under the guidelines of the hospital where she practices, but not under those of the university, where she teaches. "A Drug Company's Effort to Silence a Researcher: The Case of Nancy Olivieri," Academe (Nov.-Dec. 1999).

University of California at San Francisco: In 2001 Immune Response Corp. dropped its demand that the university pay it up to $10 million in damages after university researchers published in the Journal of the American Medical Association their findings that the company's drug was ineffective in treating HIV. The company initially insisted on the right to approve the proposed paper before its publication and demanded that an additional set of data, prepared by the company, be included in the analysis. Martin Van Der Werf, "University Prevails in Dispute with Pharmaceutical Company Over HIV Drug," The Chronicle of Higher Education (Sept. 13, 2001).

University of California at San Francisco: Dr. Betty J. Dong, a pharmacologist, discovered that her work called into question the effectiveness of a thyroid medication taken by millions of patients. She had signed a nondisclosure agreement with the drug manufacturer which prohibited her from revealing the results of her $250,000 study. In 1997, seven years after her discovery, Dr. Dong presented her research in an article in the Journal of the American Medical Association. She was quoted in the Los Angeles Times as saying that "she was not aware that University of California guidelines would have prohibited the nondisclosure agreement she signed." Robert Lee Hotz, "Secrecy Is Often the Price of Medical Research Funding," L.A. Times (May 18, 1999).

Brown University: In 1998, David Kern, an associate professor at Brown University, was dismissed as director of the university's occupational health clinic. The hospital affiliated with the university released him after he presented a paper at the American Thoracic Society, over the objections of the hospital and Microfibres, Inc., a Rhode Island textile manufacturer, about a lung disease he claimed to have discovered in the company's workers. The university also ended its occupational health program. Kern had signed a nondisclosure agreement with the manufacturer and the hospital in 1994, but he contended that it did not govern subsequent consulting work that resulted in the controversial findings. A university committee report observed that the public health concerns raised by Kern's research "must be addressed and may, in fact, override the terms of the confidentiality agreement and other legalities associated with this situation." The president of Brown University stated that the school chose not to intervene in the matter because the university was not a party to the breached confidentiality agreement. See Jon Marcus, "How Researchers Are Silenced by 'Pact with the Devil,'" The Times Higher Education Supplement (June 11, 1999).

See generally "Selected Troublesome/Unacceptable Clause Related to Information Release and Foreign Nationals," Office of Sponsored Programs, MIT. < http://web.mit.edu/osp/www/OSP_Booklet_2003/troublesome_clauses.htm >. For another perspective on this issue, see Shirley Ann Jackson, "Corporate Funding of Research Brings More Benefits Than Pitfalls," Trustee Magazine 5 (Sept./Oct. 2001).

3. Some Institutional Policies

Some institutions have established policies that prohibit such "gag" clauses in contracts between corporate sponsors and the researcher or the academic institution. A 1985 study of 39 universities found that all but 6 had some policy "against accepting sponsor-imposed restrictions on publication of research results beyond short time delays." Academic Freedom and Values.

University of Maryland: "The University of Maryland does not enter into agreements to carry out research if the grant, contract or other award instrument restrains the freedom of the University and its faculty to disclose the existence of the grant or contract, the general nature of the inquiry to be conducted, and the identity of the sponsor. The University reserves for its faculty the right to publish the results of the research without the prior approval of the sponsor."

Harvard University: "Agreements may permit industrial sponsors thirty days to examine manuscripts for potentially patentable material or to ensure that the sponsors' confidential or background information is not being disclosed, and allow an additional thirty days to undertake patent protection. However, agreements may not allow further publication delay, nor give sponsors the authority to prevent or to alter reports of research conducted at the University." < http://www.fas.harvard.edu/~research/greybook/industry.html >.

To ensure appropriate financial relationships between industry and academe, institutional policies should not only cover full-time faculty, but contingent faculty as well.

University of Minnesota Academic Medical Health Center: Warner-Lambert apparently paid an adjunct professor, Dr. Ilo Leppik, close to $50,000 between 1994 through 1998 to promote the drug Neurontin. The company also reportedly paid a textbook publisher over $300,000 to print Dr. Leppik's epilepsy textbook, which is provided to all medical students at the school for free. Dr. Leppik serves in an unpaid position on campus. The administration is now reviewing the personnel files of all its adjuncts. Part of the controversy arose because "[a]djunct professors are not required to submit annual forms that list their outside sources of income, the way full-time faculty members are, and some university officials believe that should change." Katherine S. Mangan, "Drug Company's Payments to Adjunct Prompt Review at U. of Minnesota," The Chronicle of Higher Education (June 10, 2003).

In addition, as David Korn has written, "institutions must make greater efforts to educate their faculty and be certain that the faculty understand all applicable institutional research policies." "Conflicts of Interest in Clinical Research," The Chronicle of Higher Education (Colloquy Live) (July 25, 2003) < www.chronicle.com/colloquylive/2003/07/medical/ >.

D. Institutional Restrictions on Corporate Support

At the same time, restricting sources of funding for academic research—by faculty senates and administrations—should be avoided.

University of California: Faculty senates at the San Francisco and San Diego campuses of the University of California recently voted to reject money from manufacturers of tobacco products or their subsidiaries. Apparently no current researchers at this time receive tobacco funds for their research on either campus. The faculty votes do not constitute official policy because "the UC Office of the President has not issued a mandate to the campus's Contracts and Grants office to refrain from accepting funds from the tobacco industry." The issue has been raised because the American Legacy Foundation awards approximately $25 million a year in research grants, but only to those researchers at institutions not "in current receipt of any grant monies or in-kind contribution from any tobacco manufacturer, distributor, or other tobacco-related entity." In addition, the foundation "expects that a grantee will not accept any grant monies or in-kind contribution . . . over the duration of the grant." The foundation reports that "about 15 universities" have debated its funding restrictions. Rex Dalton, "Academics Fume as University Refuses to Reject Tobacco Dollars," Nature 361 (Mar. 27, 2003); "UCSF Faculty Vote to Refuse Tobacco Industry Funding" (Feb. 27, 2003), < http://pub.ucsf.edu/today/print.php?news_id=200302262 >.

AAUP Advisory Statement: In June 2003 AAUP's Committee A on Academic Freedom and Tenure considered the issue of academic freedom and the rejection of research funds from tobacco corporations. It first observed, based on a 1992 advisory opinion, that numerous legitimate reasons may exist for administrations to disapprove funding sources:

for example, because the external agency was insisting on too large a commitment of the university's own resources to the research project; or because there was a history of the agency's failure to honor its commitments; or because the agency was imposing preconditions on the research that violated academic freedom. . . .

At the same time, the AAUP concluded that

[a] very different situation obtains . . . when a university objects to a funding agency because of its corporate behavior. The distinction between degrees of corporate misdeeds is too uncertain to sustain a clear, consistent, and principled policy for determining which research funds to accept and which to reject. An institution which seeks to distinguish between and among different kinds of offensive corporate behavior presumes that it is competent to distinguish permissible corporate wrongdoing from wrongful behavior that is acceptable. A university which starts down this path will find it difficult to resist demands that research bans should be imposed on other funding agencies that are seen as reckless or supportive of repellant programs.

AAUP, "Academic Freedom and Rejection of Research Funds From Tobacco Corporations" (2003); see also "An Issue of Academic Freedom in Refusing Outside Funding for Faculty Research," Academe 49 (Sept.-Oct. 1992) (in response to a University of Delaware prohibition on the receipt of funding from the Pioneer Fund, which one faculty member described as "an organization with a long and continuous history of supporting racism, anti-Semitism, and other discriminatory practices)."

E. Industry Efforts to Gain Access to Confidential Academic Research

Companies that do not necessarily fund academic research sometimes try to gain access to research—which can have the impact of a different kind of "gag" rule—through subpoenas. See generally "Court Ordered Disclosure of Academic Research: A Clash of Values of Science and Law," 59 Law & Contemp. Probs. 1 (1996) (a series of articles on the topic).

Beverly Enterprises v. Dr. Kate Bronfenbrenner (Cornell University): Beverly Enterprises, a national nursing home chain, sued Professor Bronfenbrenner for defamation allegedly caused by her testimony at a "town hall" meeting called by legislators. Dr. Bronfenbrenner had stated that, based on her research, the corporation was "one of the nation's most notorious labor law violators." In pre-trial discovery, Beverly sought Dr. Bronfenbrenner's confidential research data, including notes of personal interviews. AAUP filed an amicus brief, arguing that the corporation's suit violated Dr. Bronfenbrenner's First Amendment right of academic freedom. Cornell University's associate counsel stated, "The Beverly lawsuit was an attack on academic freedom that sought to punish Dr. Bronfenbrenner for presenting the results of her research in a public forum." The court dismissed the suit on the grounds of legislative immunity. Beverly appealed but then withdrew its appeal. "Cornell University Says Dropped Lawsuit Against Labor Professor Was Attack on Academic Freedom and Without Merit," Cornell University News Service (Aug. 4, 1998); see Julianne Basinger, "Judge Dismisses Suit Against Scholar Accused of Libeling Nursing-Home Chain," The Chronicle of Higher Education (May 28, 1998).

United States v. Microsoft (Harvard University and Massachusetts Institute of Technology): Two professors successfully defeated efforts by Microsoft Corporation to compel disclosure of their confidential research. The company, in defending itself against an antitrust action, sought to force the professors to turn over their research materials, including taped interviews with employees of Netscape, a Microsoft competitor. David Yoffie of Harvard University and Michael Cusumano of the Massachusetts Institute of Technology planned to use the interviews in a book that had yet to be published. Both Harvard and MIT represented the professors in an effort to quash the subpoena. They argued, in part, that "forcing [the professors] to disclose the [research] would endanger the values of academic freedom safeguarded by the First Amendment and jeopardize the future information-gathering activities of academic researchers." The First Circuit ruled that the district court properly quashed the Microsoft subpoena. The court opined: "Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses." Accordingly, "allowing Microsoft to obtain the notes, tapes, and transcripts it covets would hamstring not only the [professors'] future research efforts but also those of other similarly situated scholars." 162 F.3d 708 (1st Cir. 1998).

Dow Chemical v. Allen (University of Wisconsin): University researchers were studying the effects of a certain chemical on monkeys. In the middle of the research, the Environmental Protection Agency cancelled its contract with Dow Chemical to produce the pesticide containing this chemical. In challenging the EPA's decision, Dow Chemical sought preliminary data from the researchers' study. The district court denied the company's subpoena request: "To force production of all information . . . is likely to jeopardize the study by exposing it to the criticism of those whose interests it may ultimately adversely affect, before there has been an opportunity of the researchers themselves to make sure the study is the result of their best efforts. . . . Putting this study in jeopardy would be a heavy burden not only on those involved in the research, but also on the public which has helped to fund it through tax money and which ultimately stands to gain from knowledge of the final results." The Seventh Circuit affirmed the lower court, observing that "inadvertent disclosure of subpoenaed data could jeopardize both the studies and [the researchers'] careers. Clearly, enforcement of the subpoena carries the potential for chilling the exercise of First Amendment rights." The court acknowledged that "peer review and publication of the studies [were] crucial to the researchers' credibility and career and would be precluded by whole or partial public disclosure of the information." 494 F. Supp. 107 (E.D. Wis. 1980), aff'd, 672 F.2d 1262 (7th Cir. 1982).

The tobacco industry has been particularly aggressive in wielding the subpoena tool to seek access to confidential academic research.

Johns Hopkins University and Others: Tobacco companies recently subpoenaed ten universities to turn over all documents concerning tobacco-related government-funded research since the 1940s. Harvard University, Johns Hopkins University, New York University, North Carolina State University, four University of California campuses, the University of Arizona, and the University of Kentucky have received subpoenas. Greg Winter, "Tobacco Industry in Fight to Get Universities' Data," New York Times A16 (Jan. 20, 2002). Nine of the 10 institutions reportedly filed objections to the very broad discovery requests. See Beth Currie, "Tobacco Companies Seek Documents From 10 Universities on Research Dating Back to the '40s," The Chronicle of Higher Education (Jan. 21, 2002).

R.J. Reynolds Tobacco Company v. Fischer (The Medical College of Georgia): In 1992, R.J. Reynolds subpoenaed the materials of a number of academic researchers, including Dr. Paul Fischer, a professor at the Medical College of Georgia. The company demanded that he turn over his research, including "the names and telephone numbers of all the children that participated" in a study of the "Joe Camel" advertising campaign and its effect on children. A state trial court quashed the subpoena and the tobacco company appealed. The state appellate court upheld the lower court, finding Dr. Fischer's deposition and materials irrelevant because the tobacco company's suit, which was in California, was not based "on a contention that the Joe Camel advertising campaign influences young children, but on an allegation that the omission of the federal warning from the logo is an unfair business practice." 207 Ga. App. 292 (Fulton County, 1993). Later, the company sought Dr. Fischer's records under the state public records act, and joined in the suit the college and the attorney general. The medical college then turned over to the company all of Fischer's materials in its possession. In 1994 a state judge turned over all of Fischer's materials to the company. For a discussion of the case from Dr. Fischer's perspective, see Paul M. Fischer, "Fischer v. The Medical College of Georgia and the R.J. Reynolds Tobacco Company: A Case Study of Constraints on Research," in New Directions For Higher Education, No. 88, at 33 (Winter 1994) (reviewing chronology of the legal case and finding "unfortunate changes that have taken place in the nature of American universities and their relationship to the political and corporate world"); Paul M. Fischer, "Science and Subpoenas: When Do the Courts Become Instruments of Manipulation?," 59 Law & Contemp. Probs. 159 (Summer 1996).

II. The Government and Academic Research

The federal government provides about 59 percent of financial support for academic research, according to the National Science Foundation. < www.nsf.gov/sbe/srs/seind00/c6/c6s1.htm#c6s1l2 >. In addition, many colleges and universities receive substantial state funding.

A. Concerns About National Security

Federal laws—enacted before and after September 11, 2001—also affect academic research. This section relies extensively on AAUP's new report, "Academic Freedom and National Security in a Time of Crisis" (forthcoming, 2003) (hereafter "Academic Freedom and National Security"). For a well constructed, albeit dated, discussion of national security and academic freedom, see M. Christina Ramirez, "The Balance of Interests Between National Security Controls and First Amendment Interests in Academic Freedom," 13 J.C. & U.L. 179 (Fall 1986).

1. "Classified" Research

Academic research that is funded by the government can, under specified conditions, be classified. An issue that has long "vexed universities and researchers" is "whether, and if so how, they can carry out classified research without impairing freedom of research and scientific progress." Classified research is generally developed in secret. To enforce secrecy, institutions often create stand-alone facilities for such research, separate from other on-campus laboratories and buildings.

The AAUP recommends that "fewer restrictions [on academic research] are not only better than more, but restrictions on research, to the extent that any are required, must be precise, narrowly defined, and applied only in exceptional circumstances: these seem to be the lessons the academic community has drawn from its experiences with classified research."

George Mason University: Sean Gorman, a graduate student at the university's National Center for Technology and Law, has written a dissertation that maps the fiber-optic network that connects businesses in the United States. The federal government has suggested his work should be classified. Gorman has stated, "They're worried about national security. I'm worried about getting my degree." He continued, "Academics make their name as an expert in something . . . . If I can't talk about it, it's hard to get hired. It's hard to put 'classified' on your list of publications on your resume." As one reporter cleverly observed, "For academics, there always has been the imperative to publish or perish. In Gorman's case, there's a new concern: publish and perish." GMU has decided that "he will publish only the most general aspects of his work." Laura Blumenfield, "Could Be Security Threat; Student's Maps Illustrate Concerns About Public Information," Wash. Post A1 (July 8, 2003).

Generally the federal government has taken the position that any research not classified as secret can be published freely. Since the terrorist attacks on September 11, 2001, however, some federal agencies have sought, albeit unsuccessfully, to review published reports before they are distributed to the academic community.

U.S. Department of Defense: Shortly after September 11, 2001, the DOD proposed that scientists whose research was funded by the federal government would have to obtain prior approval from the government before publishing their work or discussing it at scientific conferences. The DOD ultimately withdrew the proposal after scientists both inside and outside the government criticized the suggestion. In so doing, the government reaffirmed its commitment to a 1985 National Security Decision Directive (NDSS) "that, to the maximum extent possible, the products of fundamental research remain unrestricted." NSDD 189 (Sept. 21, 1985). The 1985 directive defines "fundamental research" as "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons."

2. "Sensitive But Unclassified" Information

"Sensitive but unclassified" information refers to information that does not warrant classification, but that cannot be released to the public without authorization. Such information includes personnel information about government employees, law enforcement information, and information exempt from disclosure under the federal Freedom of Information Act (FOIA).

As AAUP observes in its report, "Academic Freedom and National Security":

Well before September 11, the government invoked the term sensitive but unclassified in behalf of national security as a rationale for not releasing government information or academic research funded by the government. Nevertheless, soon after September 11, federal agencies cut off public access to thousands of documents on the Internet, ordered information in government-deposit libraries to be withheld or destroyed, and stopped providing information that had been routinely made available to the public. In March 2002, the White House instructed federal agency and department heads to undertake "an immediate reexamination" of current measures for identifying and protecting information concerning weapons of mass destruction "as well as other information that could be misused to harm the security of our nation and the safety of our people." < www.usdoj.gov/oip/foiapost/2002foiapost10.htm >. Federal agencies, given 90 days to conduct this review and report to the Office of Homeland Security, moved quickly into compliance. The Homeland Security Act of 2002 followed suit by requiring federal agencies to "identify and safeguard homeland security information that is sensitive but unclassified." Sec. 892 (a)(1)(B).

As the AAUP report explains, "the argument for more restrictions on the dissemination of academic research includes the concern that we may have contributed to terrorist attacks against our own citizens through the unfettered flow of scientific ideas and information across national borders and in our colleges and universities, and through the openness of our borders. The challenge is to restrain the dissemination of only that research which, if disclosed, could harm the national security."

Institutions have responded in a number of ways. So, for example, an MIT faculty report provides:

Increasingly, of late, MIT has seen the attempt by government contracting officials to include a requirement that research results be reviewed, prior to publication, for the potential disclosure of "sensitive" information. Such a request implies potential restrictions on the manner in which research results are handled and disseminated, and may also restrict the personnel who have access to this material. The difficulty with this approach is that the term "sensitive" has not been defined, and the obligations of the Institute and the individuals involved have not been clarified nor bounded. This situation opens the Institute and its faculty, students, and staff to potential arbitrary dictates from individual government contracting agents—however well intended. We are aware that many universities have had similar experiences.

To date, MIT has refused, in all cases, to accept this restriction in any of its government contracts. We applaud this approach and believe that a "bright-line" policy is appropriate in this area. MIT has chosen to engage in classified research at Lincoln Laboratory under well-defined obligations but does not, and should not, accept arbitrary restrictions on its research environment.

Massachusetts Institute of Technology, Report of the Ad Hoc Committee On Access To and Disclosure Of Scientific Information 12, Report of June 12, 2002. < http://web.mit.edu/faculty/reports/publicinterest.pdf >.

3. Export Controls

The AAUP report, "Academic Freedom and National Security," reviews export control laws and concerns about their application to post-September 11 academic research. Two regulatory regimes unconnected to federal funding affect teaching, research, and the dissemination of research results involving foreign nationals: the International Traffic in Arms Regulations (ITAR), administered by the Department of State, and the Export Administration Regulations (EAR), administered by the Department of Commerce. Both of these federal statutory schemes were established before September 11, 2001; how they are applied under current conditions will be of concern to faculty and administration. In addition, the Digital Millennium Copyright Act, which was enacted in 1998, poses additional challenges for courts in balancing national security, copyright law, and academic freedom.

a. ITAR

The Export Control Act, 22 U.S.C. § 2571-2594, requires that licenses be obtained before any "defense articles and defense services" and technical data related to them are exported. "Export" is defined to include disclosure "(including oral or visual disclosure) or transferring technical data to a foreign person whether in the United States or abroad." As the AAUP report states, "Classroom discussion or collaborative research with a foreign national, the presentation of a paper to an audience that includes a foreign national, inside or outside the United States, or even informal conversations, may be subject to the Act (which can include criminal sanctions), depending on what has been disclosed (or learned)."

The Act exempts "information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain. . . ." "Public domain" is defined as information which is generally available to the public, including, as the report observes, "unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States," and information accessible or available, as the law provides,

[t]hrough fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:

(i) The university or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or

(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable. 22 C.F.R. § 120.11 (2002).

b. EAR

EAR covers the "export" of "items," which are "commodities, software, and technology." "Export" is a transmission out of the United States, or "release of technology or software" to a foreign national inside the U.S. Such release may occur by verbal exchange in the U.S. or abroad. However, EAR exempts release (or publication) of "fundamental research," and fundamental research is defined more broadly than under ITAR:

University based research. (1) Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research . . . ("University" means any accredited institution of higher education located in the United States.) Id. § 734.8(b).

But, as the AAUP report notes, there is a caveat under the law:

University based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example, of an industrial sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed.

Information is "published" when it becomes generally accessible to the interested public, including:

(1) Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution. . . .

* * *

(4) Release at an open conference, meeting, seminar, trade show, or other open gathering.

(i) A conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations.

(ii) All technically qualified members of the public may be considered eligible to attend a conference or other gathering notwithstanding a registration fee reasonably related to cost and reflecting an intention that all interested and technically qualified persons be able to attend, or a limitation on actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility. . . .

(iii) "Publication" includes submission of papers to domestic or foreign editors or reviewers of journals, or to organizers of open conferences or other open gatherings, with the understanding that the papers will be made publicly available if favorably received. . . . Id. § 734.7.

EAR further exempts the release of "educational information," which is defined as "instruction in catalogue courses and associated teaching laboratories of academic institutions." Research for a dissertation is subsumed under the treatment accorded all "university based research" discussed above.

The AAUP report observes:

Department of Commerce guidance provides that EAR does not cover publication (or submission for publication) in a foreign journal, presentations at foreign conferences so long as they are "open" under EAR's regulations, or teaching students from countries for which an export license would otherwise be required. The regulations also make clear that some apparent restrictions, for example, on the circulation of a copy of a dissertation not otherwise "published" or the sharing of unpublished research data with a visiting foreign national, do not in fact apply if the contents meet the definition of fundamental research.

EAR includes a separate provision for encryption commodities and software (15 C.F.R. § 740.17). (Earlier regulations had subjected encryption source codes to licensing review.)

Bernstein v. U.S. Department of Justice (University of Illinois at Chicago): Daniel J. Bernstein, a research assistant professor of mathematics at the University of Illinois at Chicago, sought to use the Internet to show other scientists the source code for an encryption program called "Snuffle," which he created as a graduate student. In 1995 he sued the U.S. Department of Justice, contending that the federal encryption regulations that control the export of domestic cryptographic research violates the First Amendment. The district court ruled in 1997, and a three-judge panel affirmed in 1999, that the same governmental encryption restrictions at issue in Junger (below) violated the First Amendment's guarantee of freedom of speech because they constitute an "impermissible prior restraint" on speech. When the Clinton administration revised the EAR regulations, the parties agreed to have the case sent back to the district court. 974 F. Supp. 1288 (N.D. Cal. 1997), aff'd, 176 F.3d 1132 (9th Cir.), rehearing en banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999). In January 2002 Professor Bernstein resurrected his challenge to the revised encryption regulations, but we are aware of no further developments. Bernstein v. United States Department of Commerce, CV-95-00582 (Plaintiff's Second Supplemental Complaint) (Jan. 7, 2002).

Junger v. Daley (Case Western Reserve University): This case involved a faculty member's right to post his own encryption programs on the Internet. Peter D. Junger is a law professor at Case Western Reserve University who teaches a course called "Computers and the Law." He submitted requests to the Commerce Department to publish encrypted software programs as required under the prior EAR regulations. The Commerce Department found that some of the codes Junger sought to publish were subject to EAR and could not be published. Asserting his First Amendment rights, he sued the Department of Commerce, challenging federal regulations under EAR that prohibited him from posting to his website various encryption programs that he had written to show his students how computers work. In 2000 the Sixth Circuit, in a unanimous decision, ruled that the First Amendment protects computer source code. 209 F.3d 481 (6th Cir. 2000). The court observed, however, that national security interests "should overrule the interests in allowing the free exchange of encryption source code."

c. The Digital Millennium Copyright Act

In addition to EAR and ITAR, courts are struggling to apply national security, academic freedom, and copyright principles in areas of academic research under the Digital Millennium Copyright Act (DMCA).

In 1998 Congress enacted the DMCA in an attempt to balance the interests of creators and users of intellectual property in relation to emerging technologies. The DMCA includes an anticircumvention provision that makes it a crime for an individual to distribute decryption technology, which can circumvent the encryption technology used to bar access to copyrighted works. The DMCA also provides an exception from its coverage for certain kinds of "legitimate research," the scope of which is sufficiently unclear that litigation has ensued.

Felten v. Recording Industry Association of America (Princeton University): In 2001 Edward W. Felten, an associate professor of computer science, sued the Recording Industry Association of America (RIAA) and the Verance Corporation. Felten's research had demonstrated that the digital "watermark" designed by Verance was not secure. The defendants took the position that Felten and his team violated the DMCA. The plaintiffs asked the court to grant the researchers immunity from prosecution under the DMCA and to declare the law unconstitutional. The DMCA includes a provision that makes it a crime for an individual to distribute decryption technology that can circumvent access controls on copyrighted works. The researchers contended that the breaking of the watermark code was not "an end unto itself" but a "crucial step, either in attempting to improve the technology or in attempting to prove that the technology cannot be made to do what it is supposed to do." The RIAA alleged that allowing Dr. Felten to publish or present his research would contribute to copying of electronic music and violate copyright law. Later that year the district court dismissed Dr. Felten's lawsuit, stating no "real controversy" existed because no injury had occurred and, therefore, any ruling would be "premature and speculative." The judge opined from the bench that the computer scientists "liken themselves to Galileo," but they are really "modern-day Don Quixotes threatened by windmills that they mistake for giants." Case No. 01-CV-2669 (N.J. Dist. Ct., Nov. 30, 2001); Andrea L. Foster, "Computer Scientists Back Scholar's Challenge to Music Industry," The Chronicle of Higher Education (Sept. 7, 2001); Andrea Foster, "Judge Dismisses Digital-Copyright Lawsuit by Princeton Professor," The Chronicle of Higher Education (Dec. 14, 2001); see Donna R. Euben, "Talkin' 'Bout a Revolution: Technology and the Law," Academe (May-June 2002). The professor decided not to appeal the district court opinion, reportedly relying on the assurances of industry and government officials that "they will never again threaten publishers of scientific research that exposes vulnerabilities in security systems for copyrighted works."

Pavlovich v. DVD Copy Control Association (Purdue University): Matthew Pavlovich, a former student at Purdue University, was sued along with others by the movie industry for publishing on the Internet a code that unscrambles encrypted DVDs. In August 2001, the state court ruled the state had jurisdiction because Pavlovich's web posting could harm the movie industry in California. The California Supreme Court ruled that the court had no such jurisdiction, and the Supreme Court, which had initially issued a stay, rescinded it in January 2003. 29 Cal. App. 4th 262 (App. Div. 2002); Andrea L. Foster, "Free Speech Group Backs Former Purdue U. Student Accused in DVD-Decoding Case," The Chronicle of Higher Education (May 2, 2002).

Universal City Studios, Inc. v. Corley: While this case did not involve faculty, it demonstrates the limitations on professors who wish to publish research on computer source code. The Second Circuit ruled that Eric C. Corley and his company, 2600 Enterprises, Inc., violated the copyright protections of eight motion picture studios under the DMCA when Corley published a computer program on the Internet that is able to circumvent the recording industry's technology devised to block the copying of DVD movies. In so doing, the court ruled that the DMCA does not violate the First Amendment. The court reasoned that, while computer source code is protected by the First Amendment, the scope of that protection is limited, because the DMCA provisions on posting such code constitute a content-neutral restriction. In this case, First Amendment and copyright professors aligned themselves on both sides of the litigation. The counsel for Corley was Stanford University Law School Dean Kathleen Sullivan, and amicus briefs included one filed by Professor Julie E. Cohen, Georgetown University Law Center, on behalf of a group of intellectual property law professors. The movie studios were represented by David E. Kendall, and amicus briefs included one filed by Professor Rodney Smolla, University of Richmond. 273 F.3d 429 (2d Cir. 2001); "2600 Magazine Seeks Another Opinion in NY DeCSS Case" < www.newsbytes.com/news/02/173635.html >.

In the end, the academic community must closely monitor legal challenges to the DMCA to ensure that the judiciary strikes a proper balance between and among support of copyright protections and national security on the one hand, and, promotion of the principles of free speech, academic freedom, and reasonable access to information, on the other.

B. Government Interference in Academic Research

Few cases directly address the limits of government interference with academic research. Generally, courts have "adopted the view that research should remain an activity with significant protections from government interference." Bryon V. Olsen, "Note: Rust in the Laboratory: When Science is Censored," 58 Alb. L. Rev. 299 (1994).

1. Regulating Access to Research Data

American Historical Association v. The National Archives: In December 2001 a number of academic disciplinary associations sued the federal government for enforcing an executive order (E.O. 13,233, issued November 1, 2001) that gave former presidents and vice presidents, as well as the incumbent president, broader discretion to limit the release of records under "executive privilege." The executive order sought to modify the Presidential Records Act of 1978, which requires the disclosure of most sensitive records 12 years after a president has left office. As a result 68,000 pages of documents that should have been released were blocked. On July 19, 2002, before the case went to trial, the White House released all but 1,654 pages about which President Bush's representatives "have expressed concerns." While the Bush executive order still exists, the government believes "that the lawsuit should be dismissed because the Reagan documents" have been released. H.R. 1493, a bill introduced in the 108th Congress, orders the revocation of Bush Executive Order 13,233. For a copy of the complaint, see < www.citizen.org/print_article.cfm?ID=6515 >. See Richard Morgan, "Lawsuit Challenges Bush Executive Order on Presidential Records," The Chronicle of Higher Education (Nov. 29, 2001).

2. Regulating Research Through Government Funding

Board of Trustees of the Leland Stanford Junior University v. Sullivan: In 1989 the NIH issued notice of its intent to award contracts for a five-year research project on an artificial heart device. Dr. Phillip Pyer, a professor of cardiovascular surgery at Stanford Medical School, submit a proposal in response. However, the university would not agree to sign the, "Confidentiality of Information Clause," and the government withdrew its contract from Stanford and awarded it to another university. Stanford argued that the confidentiality clause in the government contract constituted an illegal prior restraint and an unconstitutional condition on a government benefit under the First Amendment. The court described the clause as requiring "researchers to give the government advance notice of their intent to publish preliminary findings, and [] allow[ing] the government's contracting officer to block such publication." The information included "findings . . . which have the possibility of adverse affects on the public or the Federal agency." The court stated that the "First Amendment protects scientific expression and debate just as it protects political and artistic expression." The court found the regulation to violate the First Amendment because "it broadly forbids the recipients of the funds from engaging in publishing activity related to artificial heart research at any time, under any auspices, and wholly apart from the particular program that is being aided." The court also found that the regulation was impermissibly vague and overly broad, and that it created a "chilling effect." The court opined that "[e]ven in the Soviet Union, where Joseph Stalin at one time decided what could be published and by whom, the dead hand of government control of scientific research and publication is apparently no more." In the end, the court ordered that the government contract "be awarded to the disappointed party without an additional round of procurement proceedings," but without "the illegal confidentiality clause." 773 F. Supp. 472 (D.D.C. 1991).

See generally the Winter 1993 issue of The Journal of College and University Law, which focuses on secrecy and university research, including analysis of this Stanford University case.

3. Controlling Academic Research Agendas

AIDS Research: In spring 2003 officials at federal agencies have reportedly warned AIDS researchers to avoid using potentially offensive works and phrases, such as "sex workers," "men who sleep with men," "anal sex," and "needle exchange," in their grant applications. The warnings, which were conveyed confidentially by a number of researchers, were meant to shield grant applications from being singled out for extra scrutiny by Bush administration officials and members of Congress. Spokespeople for the government agencies in question, including the National Institutes of Health, deny that applications are being subjected to extra scrutiny and that researchers have been advised to expunge specific words. Jeffrey Brainard, "Some NIH Officials Advise Researchers to Avoid Certain Words in Applications for AIDS Projects, Reports Say," The Chronicle of Higher Education (Apr. 21, 2003).

California Agrarian Action Project, Inc. v. Regents of the University of California: In 1987 a public interest group, California Rural Legal Assistance, filed a lawsuit against the University of California, arguing that under the federal Hatch Act of 1887 the University of California was required to revise its agricultural research to provide greater benefits to a number of constituencies, including small farmers and farm workers. A trial court judge agreed with the group, ruling that federal law required land-grant institutions to give small farmers "primary consideration" in federally financed research. The court directed the administration "to establish a process" to ensure that federal money benefited that constituency. Two years later a state appellate three-judge panel overturned that decision, finding that nothing in federal law required the administration to refocus its research projects to support small-farm enterprises. Stanford University had argued that "research projects should be selected solely on the basis of scientific merit; and that if it is required to design research projects to benefit small farmers or other special interest groups, academic freedom would be paralyzed." 210 Cal. App. 3d 1245 (Cal. App. 1989); see also Herbert London, "Ruling by California Judge Casts a Cloud Over All University Agricultural Research," The Chronicle of Higher Education (March 16, 1988) (op-ed).

Henley v. Wise: A three-judge district court panel considered the constitutionality of an Indiana statute prohibiting the possession of all obscene materials, even materials where there is no "intent to sell, lend or give away." The court ruled that "[w]hen Indiana acts against one who merely possesses obscene material without the intent to distribute it, the state has unconstitutionally intruded itself" into a number of protected activities, including "the right of scholars to do research and advance the state of man's knowledge." While an exception existed under the statute for "teaching in regularly chartered medical colleges, or the publication of standard medical books," the exception was too narrow. The court observed that "the knowing possession of obscene matter without intent to distribute it is prohibited to professors and researchers in psychology, law, anthropology, art, sociology, history, literature and related areas. This prohibition is so sweeping as to put in violation of the law the famous Kinsey Institute at Indiana University. The chilling effect on research, development, and exchange of scholarly ideas is repugnant to the First Amendment." 303 F. Supp. 62 (N. Ind. 1969).

Urofsky v. Gilmore: The Commonwealth of Virginia enacted a statute that restricts the ability of state employees to gain access to sexually explicit material on state-owned or -leased computers. Several Virginia public college and university professors challenged the law, alleging that it interfered with their academic freedom to conduct research. In 2000 the en banc court, in an 8-4 decision, ruled that "the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First Amendment." 216 F.3d 401 (4th Cir. 2000) (en banc), cert. denied, 531 U.S. 1070 (2001).

D. Institutional Review Boards

1. Some Background

Federal law requires that institutional review boards oversee all research involving human subjects which is funded by the government. Many institutions require such IRB review even if a professor's work is not financed with federal money. IRBs determine whether a faculty member's work constitutes research, whether there are "human subjects" involved, and whether informed consent is needed from such research subjects.

      • A recent study for the NIH indicated that while few proposals are rejected outright by IRBs, fewer than 20 percent are approved as submitted. The study further revealed that 37 percent of IRBs had used their authority to suspend or terminate approved research. Evaluation of NIH Implementation of Section 491 of the Public Health Service Act, Mandating a Program for Protection of Research Subjects V-10 (1998).
      • As of 2000, approximately 4,000 IRBs were operating in the United States. Id. at II-8.
      • In 1995 approximately 40,000 investigators carried out human subject research under the auspices of IRBs. C.K. Gunsalus, An Examination of Issues Presented by Proposals to Unify and Expand Federal Oversight of Human Subject Research (National Bioethics Advisory Commission, 1998).

2. AAUP Policy

AAUP, in collaboration with a number of disciplinary associations, including the American Anthropological Association and the Oral History Association, issued a report that considers the experiences of social scientists and scholars in other academic disciplines whose research is subject to the government's rules for protecting human beings. The report, "Protecting Human Beings: Institutional Review Boards and Social Science Research" (2001), includes a number of recommendations on how better to accommodate social science research in IRB review procedures, including:

      • increase the representation of social scientists on IRBs.
      • provide for some kind of appeal of IRB decisions "so that both institutional integrity and the rights of the researcher may be preserved."
      • promote the option of expedited review and exemption to better meet the needs of social science research. Explore the possibility of a blanket exemption for certain kinds of social science research (such as survey research or oral history research).
      • improve campus understanding of IRBs by organizing campus-based seminars or symposia "to which would be invited past and current IRB members, social science researchers who have gone through an IRB review, and researchers likely to face one."
      • be vigilant in ensuring that IRBs do not threaten freedom of research.

3. Some Recent Controversies

University of Missouri at Columbia: A journalism graduate student, Michael Carney, challenged a university policy that required all research projects to be approved by an IRB. In January 2001 the IRB rejected Carney's proposal, which was "an examination of the relationship between the media and public opinion polling." Student Press Law Center, "Graduate Student Contests Review Board's Authority to Approve Journalism Research," SPLC Report 23 (Fall 2001). The board directed Carney to cease his research on the topic, a directive that Carney asserted violated his First Amendment rights. In the end, Carney did not file a legal claim. In response to this incident, the journalism department changed its requirements for master's degrees by no longer requiring scientific research projects for candidates. "U. of Missouri Amends Research Paper Policy," SPLC Report 17 (Spring 2002).

Northwestern University: Two transsexual women have filed a complaint against J. Michael Bailey, the author of a recently published book entitled The Man Who Would be Queen: The Science of Gender-Bending and Transsexualism. The women allege that the book includes numerous interviews with them and that they were neither given nor asked to sign informed consent forms. Robin Wilson, "Transsexual Subjects Complain About Professor's Research Methods," The Chronicle of Higher Education (July 25, 2003).

IV. Conflict-of-Interest Issues

A. AAUP Policy

AAUP's Statement on Conflicts of Interest offers five considerations to guide the formulation of institutional policies in this area:

    • disclosure requirements should be "carefully focused on legitimate areas of concern and not improperly interfere with the privacy rights of faculty members and their families";
    • "external interests should not be allowed to shift the balance of academic priorities in a university" without faculty debate and review;
    • cooperative ventures with "outside" entities should "respect[] the primacy of the university's principal mission, with regard to the choice of subjects of research and the . . . publication of results";
    • administrations should be fair in allocating resources between departments able to attract outside money, and those departments less able to do so.
    • promotion and tenure decisions based on an individual faculty member's "ability to procure private or government funding should be kept in proper proportion and be consistent with criteria established by the faculty."

B. Some Case Law

Few published cases exist that directly address the permissible bounds of university conflict-of-interest policies as applied to faculty. A few cases, however, touch on the issue and make clear that such policies are not allowed to infringe on the constitutional rights of faculty members.

Hoover v. Morales (Texas A&M University System): Robert Hoover, a marketing professor, had been hired as an expert witness for the defense in the state's lawsuit against various tobacco companies. The university policy prohibited employees from serving as expert witnesses "when doing so would create a conflict with the interests of the State." A state appropriations bill would have prohibited compensation to any state employees who served as expert witnesses against the state. These policies were challenged by the Texas Faculty Association and several individual faculty members, including a law professor who volunteered his services to a neighborhood association opposing a state permit for a nearby incinerator. A federal appellate court found these restrictions to be antithetical to the First Amendment, under which public employees may speak about matters of public concern so long as their speech does not interfere with the efficient operations of their employers. Acknowledging that "the specific testimony to be offered by the faculty member-plaintiffs may be highly esoteric and of little interest to the public," the court nevertheless found that such testimony can bear on important matters of public concern, such as the addictive nature of nicotine, its health consequences, and resulting public costs. The court went on to say that the state failed to demonstrate an adverse impact on the delivery of educational services by the institutions in which these faculty members served. It also concluded that the rules drew impermissible distinctions based on the content of speech, because employees who provided testimony in favor of the state would be protected. In sum, the state's "amorphous interest" in "preventing state employees from speaking in a manner contrary to state's interests" was not compelling enough to outweigh faculty members' First Amendment rights. 164 F.3d 221 (5th Cir. 1998).

Medical University of South Carolina: In 1996 Mary Faith Marshall, an assistant professor and director of the university hospital's program in bioethics, was retained by the Center for Reproductive Rights to be an expert witness in a case challenging MUSC's hospital policy, which tested pregnant women suspected of abusing illegal drugs under the threat of criminal sanctions. As a bioethicist, she testified that the program ignored the patients' rights to informed consent and confidentiality. In 1997 Dr. Marshall was up for promotion from assistant to associate professor. Her promotion was stalled, according to a letter by the college president, because of her "involvement in the recent lawsuit known locally as the 'cocaine baby case'," which had displeased the college trustees. Marshall was prepared to initiate litigation. The board of trustees soon afterwards approved her promotion. "Medical University of South Carolina Backs Down," Academe (Jul.-Aug. 1999). (The U.S. Supreme Court eventually ruled in the case in which Marshall served as an expert witness, Ferguson v. City of Charleston, 532 U.S. 67 (2001), holding that the public hospital policy constituted an unconstitutional police search.)

Adamsons v. Wharton (Downstate Medical Center College of Medicine of SUNY): The federal appellate court ruled that a state medical school can reasonably restrict the income earned by its full-time faculty in private practice. A doctor and full-time professor, Ronald J. Adamsons, sued his medical college, alleging that the school policy, which limited the extent of professors' income from private practice, would result in an unconstitutional "taking" of his outside income, violate his right to equal protection, and infringe upon his associational rights. The appellate court, upholding the lower court, rejected the professor's claims as "farfetched at best." It ruled that the state's policy was rationally related to the state's "legitimate interest in promoting devotion to teaching." 771 F.2d 41 (2d Cir. 1985).

See generally Jonathan R. Alger, "Truth and Consequences: Providing Expert Testimony," Academe (Nov.-Dec. 1998); Peter J. Harrington, "Faculty Conflicts of Interest in An Age of Academic Entrepreneurialism: An Analysis of the Problem, the Law and Selected University Policies," 27 J.C. & U.L. 775 (Spring 2003).
 
(Updated 3/09)