Backpedaling

by the University of Minnesota General Counsel 

 

 

From Corporate Counsel:

 

 

University of Minnesota general counsel Mark Rotenberg is catching fallout over what some have interpreted as his effort to limit attacks on the school’s psychiatry department. Great minds may think alike, but on this issue Rotenberg begs to differ.

The flap had its origin in the 2003 death of 26-year-old Dan Markingson.  The psychiatric patient committed suicide during a clinical trial conducted at the university.

Eight professors and bioethicists, including Carl Elliott, submitted a letter in November of last year asking the board of regents for an independent investigation into his death. Around the same time, Elliott also criticized the university for enrolling Markingson in the study and for how doctors conducted the trial in an article he wrote for Mother Jones magazine.

The Markingson’s death had already been investigated multiple times by state, federal, and academic bodies, and no wrongdoing had been attributed to the university. After a discussion with Rotenberg, the regents denied the faculty's request for another investigation February 7.

“After that, I didn’t do anything,” Rotenberg said.

Because of a misunderstanding, we were unsuccessful in our attempt to reach Rotenberg through his office on May 2. He spoke with CorpCounsel.com on May 6 about claims that he tried to stifle academic freedom through his handling of the Markingson matter.

Rotenberg said that although he was initially reluctant to do so, he offered the faculty senate a series of questions related to Markingson for their general consideration. He never made any effort to initiate or encourage any examination or investigation of professor Elliott’s criticism of the psychiatry department by any faculty body, he maintained.

“It was the senate that asked me,” he emphasized.

In a Feb. 23 e-mail to faculty secretary Gary Engstrand (which Rotenberg forwarded to CorpCounsel.com), the GC suggested that the senate consider the following questions:

“1. How thoroughly has the Markingson case been addressed by the U and by outside agencies?  

2. What is the faculty's collective role in addressing factually incorrect attacks on particular U faculty research activities? 

3. To what extent is U medical/health research dependent upon corporate funding? Is this typical of major research universities in the US/worldwide?  How much of such research involves human subjects? 
4. What risks and challenges are posed by increasing reliance on corporate funding of this type of research?
5. What policies and procedures are in place at the U to address these risks and challenges? Are there policies and procedures at other major institutions, or under consideration elsewhere, that we should adopt here?”

It was Rotenberg’s second question concerning the faculty’s role in addressing “factually incorrect” attacks that caused a stir—both among faculty members and in the press. The faculty consultative committee referred the question to the school’s academic freedom and tenure committee (AF&T) for discussion.

In  an interview with The Chronicle of Higher Education, Elliott called the GC’s actions troubling. He said, “Instead of fostering an open discussion about research practices, Mr. Rotenberg, and by extension the university administration, is attempting to use the faculty senate as a ‘stalking horse’ for intimidating and punitive action.”

After reading minutes from the April 8 AF&T meeting held to consider Rotenberg’s inquiry, Naomi Scheman, a professor of philosophy at the university, complained to the committee chair about the question.

In an e-mail to CorpCounsel.com, Scheman said, “As stated, the clear implication is that the articles and letters from Carl Elliott and members of the University's Bioethics Center contain ‘factually-incorrect attacks.’ ….This presumption is inappropriate and prejudicial. By using the material related to the Markingson case as an example of factually incorrect attacks, the general counsel … is characterizing as settled fact what is in dispute.

“This action serves to create problems of academic freedom where there were none,” she continued. “That is, the only questions of academic freedom are the ones raised by this framing of the question.”

Rotenberg disputed that characterization. “People who are not on the committee don’t have all the facts,” he said. His efforts have been intended to vindicate faculty members who conduct controversial research, not squelch discussion, he added. "The faculty, as a collective body, should take an interest in attacks on their members that serve to deter or chill controversial research,” Rotenberg told The Chronicle of Higher Education.

In another response Rotenberg wrote: “Consistent with our University’s tradition of encouraging a wide diversity of viewpoints and perspectives, we support Dr. Elliott in raising some important issues.
“The protection of the rights of individuals who participate in clinical research is fundamental to the clinical research enterprise. …We take seriously the concerns raised by Prof. Elliott, and value an academic environment in which he and others of our colleagues can raise issues critically, and, we hope, constructively.”
Rotenberg argued that the issue before the senate was an exploration of how the academy deals with internal disputes. Punishing faculty was never part of the discussion. “That’s just not what the senate does,” he said.

In an e-mail to CorpCounsel.com, Engstrand said that Rotenberg’s question was not interpreted by either the executive committee of the faculty senate or the AF&T as raising any academic freedom question.

“The question did not suggest to faculty leaders that he or the administration was seeking to discipline or otherwise restrain professor Elliott from exercising his legal and academic rights to criticize other faculty research,” he wrote, “or that the senate should be involved in doing so.”

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