Some Legal and Ethical Issues regarding Academic Freedom

John T. Lehman, Professor of Biology1

The following text was prepared at the request of the Executive Committee of the Ann Arbor Chapter of the AAUP. The opinions are those of the author and are offered in the hope that they may help some faculty colleagues in their interactions with university administrators.

Faculty members sometimes face legal and ethical issues for which they are unprepared by their academic education and career development. Administrative conduct, in particular, can seem contrary to common sense and to expectations based on one's rudimentary knowledge of civics, government, and ethical or moral teachings. Specific conditions apply in a public university like the University of Michigan where the officials are considered part of the State

It is paramount for faculty members to recognize that the main "duty" of the University General Counsel is to "protect" the Regents and administration. Failure to comprehend this basic tenet will lead to a faulty frame of reference by faculty, misguided trust in apparent advice, or revelation of evidence that can lead to later actions of retaliation and cover-up.

Case studies of academic misconduct and questionable administrative responses have provided a list of points where administrators' self-interests conflict with academic freedom. The following points are constructed from observation and experience with administrative behaviors over a period of years at the UM. This is not a legal analysis, but is rather the interpretation and judgment of a professor about how things have actually worked recently.

DUE PROCESS

The University of Michigan General Counsel has informed faculty who complain about abusive behavior from administrators that "as an employee, you are not entitled to due process." There is some truth to this position. Due Process applies to limitations on three interests: Life, Liberty, and Property. The requirements of Due Process are flexible and dependent on the particular situation being examined. In the law, universities are given greater latitude than other employers in situations regarding internal affairs (see Wexley v. MSU). In the area of public academic employment, the Courts applying procedural Due Process analysis to alleged property rights have distinguished between property rights and contractual rights. A public employer need not comply with procedural Due Process in suspending employment interests unless the employee has a property right in that interest. This amounts to a dangerous license in the hands of occasionally unprincipled people. In essence, unless abuse is carried to the point that you lose your job, you may not have a legal case against the perpetrating administrator.

THE WHISTLEBLOWERS PROTECTION ACT (WPA)

Report of misconduct or illegal behavior within the university, even to a Regent, has been ruled not a report to a higher authority, and thus is not regarded as Whistleblowing. The WPA protects whistleblowers from retaliation by their employer, but only if they make their report outside the organization. At a state institution like the University of Michigan, the only recognized higher authority may be the federal government. But even a "report" must be reasonably well defined as one. A protected act of reporting violations or suspected violations seems to require a request for specific action by the higher authority. Inquiries about jurisdiction and responsibility, even if they include specific material details, names, dates and actions do not necessarily constitute reporting in some interpretations, and may not protect against retaliation.

Employees of governmental agencies, acting on behalf of the governmental agency, are immune from tort liability for damages they cause except in cases of gross negligence. Thus, if committees of faculty are used to conduct ersatz investigations and to issue reports to protect the administration, it can be argued successfully that the committees are acting within the scope of governmental authority and are discharging their administrative duty. There is no necessary allowance for proving that the committees discharge their function "by demonstrating a substantial lack of concern for whether an injury would result" from their actions. For faculty faced with administratively-directed witchhunts, it is important to bear in mind that the duty recognized by administrators and their legal counsel predestines the outcomes.

CONVERSION OF RESEARCH MATERIALS

Academics may assume that the research collections they assemble over lifetimes are protected from theft, destruction, or vandalism by common principles of academic conduct. Court findings are that those involved in the production of research materials-the funding agency, the grantee institution, and the principal investigator- have some property interest in those materials. The grantee institution has been ruled to have the greater interest. Consequently, it is legally possible for research and grant materials as well as data to be seized by university administrators from one faculty member and to be given to others.

FAILURE TO FOLLOW ADVERTISED POLICIES ON ACADEMIC INTEGRITY

Academic integrity, plagiarism, destruction of research materials, and like behaviors are not necessarily legal issues when they occur inside the university. It is a fact of life that internal rules and policy are observed idiosyncratically by administrators. The expressed attitude toward external rules of conduct is that they are targets for "finesse". These attitudes and behaviors have been applied mainly to grants in the past, probably because of indirect cost revenues are vital to the university budget. Similar behaviors are now emerging with respect to faculty patents and copyrights, probably because licensing and development of those intellectual properties is seen as an appealing source of money to university budget officers.

DOCUMENTATION AND TAPE RECORDERS

Documentation of interactions with administrators is essential. Creative historical reconstruction appears to be a practical component of "finesse", and not surprisingly, many cases reduce to a faculty member's word against that of a chair or associate dean about meetings, events, and verbal agreements. The Senate Advisory Committee on University Affairs was informed on 11 March 1996, along with other practical advice, that it is not illegal to secretly tape-record your own conversations for personal protection against future prevarication or even perjury. A federal law enforcement source has stated that it is not illegal to place secret surveillance devices in your office or lab to document events in your absence. According to university Department of Public Safety sources, secret surveillance of faculty and staff is widespread at the direction of administrators. The reply by a DPS officer to expression of reticence about proposed use of entrapment methods was "We don't worry about that. We never go to trial. We always get a confession."

The "corporatization" of this university and others during the past decade has played havoc with traditional academic value systems. Most of the points listed above would engender little commentary if they applied to the practices of a private business enterprise. Our particular problem is that corporate business mentality and management styles are not always compatible with academic freedom. The pursuit of money and reckless application of authority can lead to ethical compromises and abuses of many sorts. On a number of occasions, faculty governance leaders tried to engage the former Provost on the subject of administrative accountability. Inevitably, faculty were told that all decisions, including those that were tinged with ethical ramification, were based strictly on a bottom line dollar basis, period.


1The Chapter Executive Committee urges any faculty member who feels that his or her circumstances call for exercising the above advice to first consult with an attorney or an officer of the Chapter.

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