Friday, April 29, 2011

Chicago Philosopher Calls Out U of M General Counsel

on "a quite brazen attack on academic freedom"


University of Minnesota General Counsel:

Is Defamation Protected by Academic Freedom?

Thursday, April 28, 2011

Brian Leiter Calls Out University of Minnesota Administration

"a quite brazen attack on the core of academic freedom" 

The University of Minnesota "Clinical Trials" Fiasco--and the Apparent Attempt to Silence Faculty Critics

This is a somewhat complicated story, but here's the condensed version:  a clinical trial of an antipsychotic medication at the University of Minnesota in 2003 resulted in the death of a patient; bioethicist Carl Elliott at Minnesota investigated, concluding that the patient should not have been enrolled, and that the clinical trial itself was run by doctors with financial ties to the drug manufacturer sponsoring the clinical trial, and that many such trials are really aimed at marketing the drug, not testing its safety:  you can read Professor Elliott's detailed analysis of what happened.  Professor Elliott and others appealed to the University's Board of Trustees to investigate.   Now the University's General Counsel is trying to stop faculty from pursuing this matter!   This latest development--a quite brazen attack on the core of academic freedom (Professor Elliott is both eminently qualified [he is both an M.D. and a Ph.D. in philosophy and a well-known bioethicist] to investigate this matter and it falls squarely within his core research interests)--is discussed here.  (There are also stories in CHE and in IHE.)  This blog also offers a useful timeline of the recent events :

November 23, 2010.  Eight professors and bioethicists submit a letter to the Regents requesting an independent investigation into the death of Dan Markingson while he was participating in a clinical trial at the University.  See Faculty Letter at
December 10, 2010.  General Counsel Mark Rotenberg meets with the Regents regarding the request.  See U of M Attorney at
February 7, 2011.  Regents deny request for independent investigation.  See Regents Play Innocent at
February 24, 2011.  General Counsel Rotenberg submits to the FCC [the faculty council] the following question:  What is the faculty's collective role in addressing factually incorrect attacks on particular U faculty research activities?  FCC refers the question to the AF & T Committee.  See the February 24 report of the FCC at
This is a case where the University President needs to exercise some real leadership, including, at a minimum, instructing the General Counsel to back off.  This whole episode is also indicative of how important tenure is to protect faculty whose research adversely affects corporate interests.


University of Minnesota Cuts Scholarship Program 

for Neediest Students

Promises Broken at the University of Minnesota

But I have promises to keep and miles to go before I sleep...

Minneapolis — The University of Minnesota is cutting the amount of scholarship money that goes to some of its neediest students.
The university's Promise Scholarship helps cover tuition and fees -- about $12,000 a year -- for students who qualify for federal student aid.

But because of an increase in students qualifying for aid, and concerns over declining state support for higher education, school officials say they need to make changes to the $30 million a year program.

Sophomore Addis Tesfaye is one of the students being helped by the Promise Scholarship. He was told that as long as he qualified for a federal Pell Grant, he wouldn't have to worry about paying his tuition.
"That was pretty much the promise that was given to me, when I made the decision to come here," he said.

The scholarship covers a student's tuition and fees that are not taken care of by federal and state grants.

But the university says it can't continue to pay full tuition and fees for all students who qualify for federal financial aid. One reason is that there are just too many students who need aid. Another reason is that the university knows it will have to operate with less state funding in the future.
Students currently in the program don't have to worry about their scholarship money disappearing; they're covered until they graduate.

But low-income students starting at the university this fall will have to find a way to come up with at least some money to pay for tuition.
McMaster says the neediest of students, whose parents make less than $25,000 a year, will still get most of their tuition and fees paid through the Promise Scholarship. But as family income rises, so will a student's tuition bill.

Minerva Munoz helps prepare low-income students for college through the federally funded Upward Bound program. Munoz thinks the university will scare away some low-income students by reducing the Promise Scholarship.

"I think it'll be harder for our students to decide if the University of Minnesota is in fact where they want to go," said Munoz.
This administration's high tuition/high aid strategy has led to an unmitigated and predictable disaster. 


Wednesday, April 27, 2011

Freedom’s Just Another Word for . . . Restriction? 

At the University of Minnesota, can't be...

Actions have consequences, Mr. Rotenberg.

[Emphasis mine]

Alice Dreger, 04/27/2011

What tools does a university administration have at its disposal to shut up critics on its own faculty? The University of Minnesota wants to know.

The university’s administration is exploring this question because its own Carl Elliott won’t shut up about the Markingson case. Elliott, a professor in the Center for Bioethics, just keeps talking about what went wrong at his medical school in a 2003 industry-sponsored drug trial in which research subject Dan Markingson killed himself. Since publication of a muckraking article on the subject in Mother Jones, Elliott has criticized the FDA’s response to the case and led a group of faculty in asking the University Trustees to look into the case.

Like many others who continue to follow this story, Elliott is drawn to this case by issues of justice both local and global. Locally, he seeks accountability for what happened to Dan Markingson and to his mother, who tried repeatedly before Dan’s gruesome suicide to convince involved clinicians that study participation went against Dan’s best interests.

But Elliott also sees in this story the impetus for global change that could strengthen protections for patients who become subjects. In this he is hardly alone. Although she has failed to move the University of Minnesota toward any admission of culpability in her son’s death, Dan’s mother, Mary Weiss, took to the state legislature her concerns about the institutional infrastructures that harmed her son. With Elliott’s help, she got the legislature to pass “Dan’s Law,” which prohibits clinician-researchers from recruiting mentally ill patients under a commitment order into psychiatric drug studies.

“The facts of the Markingson case clearly show that something is wrong with the protection of mentally ill research subjects,” said Naomi Scheman in an e-mail message to me this week. Scheman has been following developments both as faculty in philosophy and as president of the University of Minnesota’s AAUP chapter. She elaborated, saying that subjects worth revisiting include “the acceptable risks in clinical trials, especially when there exists a financial reason for the university to support research with minimal scientific value; the role of IRBs in approving clinical trials and exercising oversight over how the research is actually carried out; and the limitations of the guidance of the Common Rule concerning mentally ill research subjects.”

Scheman concluded, “The University of Minnesota has the opportunity to act as a national leader in formulating best practices, and it is highly regrettable that the only administrative responses have been defensive, including the current efforts to mobilize faculty voices against drawing attention to these problems.”

Indeed, the administration at the University of Minnesota seems only interested in focusing its energies on getting Elliott et al to quiet down. So at an April 8 meeting of the faculty’s Academic Freedom and Tenure Committee, the administration asked the committee, “What is the faculty[’s] collective role in addressing factually-incorrect attacks on particular University faculty research activities?” The administration brought Elliott’s activities as the example to talk about. Some involved have since tried to claim that the committee wasn’t working on the Markingson case in particular, but rather on global questions of “civility” and “bullying.” The minutes seem to belie that claim.

In an interview about this with the Chronicle of Higher Education, university counsel Mark Rotenberg opined, “The faculty, as a collective body, should take an interest in attacks on their members that serve to deter or chill controversial research.” Rotenberg seems to be implying that Elliott is guilty of intimidating researchers, but I wrote to Rotenberg to ask whether his own actions might “serve to deter or chill controversial research?” He has not answered.

Rotenberg hasn’t answered another question I put to him. At the April 8 meeting, Tim Mulcahy, vice president for research, tried to compel the committee to act by telling it that “the federal government requires in those cases [where researchers are supposedly wrongly accused] that institutions do all they can to protect the reputation of the accused.” But where, I asked Rotenberg, do regulations require this?

Needless to say, Rotenberg also hasn’t answered my question about what exactly Elliott has gotten wrong about the facts. Notably, the University has not asked Mother Jones to correct anything, nor would its representative answer previous questions from me about what Elliott supposedly got wrong.

By now the administration may have figured out that it played its cards poorly on this. Alarmed by what went on April 8, a number of faculty members attended the subsequent meeting of the Academic Freedom and Tenure Committee on April 22 to object.

When I asked her about why she went to the April 22 meeting, Karen-Sue Taussig, a medical anthropologist, replied: “I was worried the committee might be being used to intimidate a member of the faculty who was critical of the University. It seemed to me that there was a logical inconsistency in the University counsel's position: he did not provide any evidence that any individual faculty member felt chilled by Carl's work, yet his bringing up the issue clearly posed the threat of chilling Carl's speech. . . . In short, I was concerned about the possibility of an Orwellian attempt to invoke academic freedom in order to chill academic freedom.”

Philosopher and historian of science Ken Waters, who also attended the second meeting, was just as concerned. “The University's general council planted a false question, the implicature of which [the committee] seemed to be uncritically accepting (that Carl was advancing factually incorrect claims),” he wrote to me in an e-mail. “And in planting the question, the counsel was trying to turn the tables and squelch my colleagues' academic freedom by somehow suggesting that they were impinging upon the academic freedom of others.”

Waters told me that he spoke to the committee from his own disciplinary background: “I have examined the history of genetics, much of which took place here at the University of Minnesota. We have a lot of research in genetics of which we should be proud. But we also have a lot of which we should be ashamed, namely eugenics. And the faculty involved in eugenics here were exonerated time and time again. Does that mean that debate about genetics should have stopped? No, of course not. Academic debate is what universities are about."

Bioethics has not traditionally been a field featured in cases involving questions of academic freedom, presumably because bioethicists have rarely done what Elliott has done: criticize their own schools. But as Hilde Lindemann, former ASBH president, wrote to me in an e-mail: “The very least we bioethicists can do is call out serious wrongdoing when it's right under our noses. I am only sorry that some of those in authority at Carl's university don't understand this.”

Colleagues may recall that, in 2009, Lindemann led the ASBH board in defending Ezekiel Emanuel and Robert Pearlman against false representations of them in the national press. Who ever expected that bioethicists like Elliott might need the same kind of protection much closer to home?

More For the Record

University of Minnesota Faculty Consultative Chair


Senate Committee on Academic Freedom and Tenure

 [Added later - see important comment at end]

[Emphasis mine]

Date: Tue, 26 Apr 2011 15:15:14 -0500
Subject: Re: Academic freedom & tenure committee discussion  
From: Kathryn VandenBosch
To: Barbara Elliott
 Cc: Naomi Scheman
    Carl Elliott
    S Charles Schulz
    Aaron Friedman
    R Mulcahy 

Dear Colleagues,

We are writing today to follow up on the response of Barbara Elliot, co-chair of the Academic Freedom and Tenure Committee (AF&T) to Naomi Scheman, President of the University of Minnesota AAUP chapter, concerning the discussion in the AF&T meeting of April 22, 2011.  We thank all of you for your interest in academic freedom and your participation in an ongoing discussion with respect to the range and limitations of that privilege. 

In general, neither AF&T nor FCC is a body that adjudicates specific disputes among faculty members, nor between faculty members and the administration.  Rather, it is our practice to identify general questions about policy and procedure that arise from specific events, to extrapolate to future situations that the University may face, and to offer our opinions in a consultative manner.  For example, this past year AF&T has taken up questions identified from the handling of the film “Troubled Waters”, and also in response to the situation in Wisconsin, where the emails of a faculty member were subpoenaed by a political organization.  These cases highlighted areas where greater understanding was needed in order to inform both the faculty and the administration. 

This year, Board of Regents Chair Clyde Allen responded to an inquiry from several faculty members concerning the University’s investigation of a psychiatric clinical study in which a participant tragically committed suicide (the Markingson case).  In Chair Allen’s response to the faculty inquiry, he invited the University to take up a discussion of wider issues related to clinical research.  We agree entirely with his statement, “We believe our faculty are ideally suited to engage in a rigorous, open, and honest exploration of these opportunities and challenges, and the impact that they may have for the integrity of our research mission.” 

With the goal of rigorous and honest exploration in mind, we invited the General Counsel’s office (OGC), which had reviewed the circumstances of the Markingson case, to suggest general questions for additional discussion in governance.  FCC then referred some of these questions to the Senate Research Committee (SRC).  The SRC discussion of these items is memorialized in the minutes from its meeting on March 21, 2011.  We referred one question to AF&T:  What is the faculty’s collective role in addressing factually incorrect attacks on particular University faculty research activities?  In retrospect, we recognize that the phrasing of the question could have been more artfully constructed, because as written it could be inferred to presuppose factually incorrect attacks in the specific instance of the Markingson case.  Nevertheless, we stress that the intent of our question was to the address the issue in the abstract, and to generalize without making a determination about past events.  Individual faculty members, inside and outside of current governance committees, may have individual opinions as to the factual accuracy of the allegations raised by critics of the clinical study, but governance as a whole has not sought to articulate a consensus opinion on this specific issue; we regard addressing the specific case as outside our charge.

  We wish to note, contrary to the views of some who may misunderstand the question posed to AF&T, that Mr. Rotenberg did not raise questions about academic freedom.
  His question asked for a discussion regarding the role, if any, of the larger faculty when individual faculty members criticize other faculty members.  We did not presume that any restraint on the academic freedom of faculty members to criticize one another was being proposed.  Nor, we infer, did AF&T, and correctly so.

  AF&T took up the discussion of the question on April 8, 2011.  Although we were not at the meeting, it is evident from the minutes that the discussion was far-reaching, multi-faceted, and unconstrained, which is to say that it was exactly the type of discussion that should occur on difficult topics in academe.  Although the discussion did not draw conclusions, consensus seemed to emerge on several points.  First, AF&T affirmed that academic freedom clearly protects those with controversial viewpoints who challenge an institution’s official decisions.  Academic freedom also protects those who speak out against such challenges and who wish to defend individuals who are the targets of criticism; indeed, academic responsibility involves speaking up against challenges thought to be unjust.  All agreed that there are limits to academic freedom, in that it fails to extend to illegal activities (e.g., legally defined defamation), but that in the specific case discussed, AF&T is not a body charged with or intent upon making such a determination.

We look forward to the further progress of the AF&T committee as members continue to discuss the dimensions of academic freedom and academic responsibility as they relate to criticism of the work and ethics of others.  We have confidence in the co-chairs’ ability to guide a fair and thorough discussion of this topic. Furthermore, we expect that the committee will be successful in distilling broader significance and guiding principles from this discussion.  We do not expect that there will be a consensus on the specific instance that prompted the discussion (i.e. the Markingson case), nor is that a goal of the discussion.  We note that this year the Senate voted to change the definition of academic responsibilities, as stated in the tenure code and the code of conduct, to include the responsibility to “seek truth.”  The original language that was discarded directed community members to “state the truth.”  Here is a clear example of individuals all avidly seeking truth, but who are unlikely to agree on what that truth is.

Last, in other business in governance this spring, we have discussed a resolution on Academic Civility that is due to come to the University Senate for action in May.  This resolution states, in part, that: The University Senate supports the Academic Civility Work Group, which envisions “a university culture that fosters academic excellence and promotes civil and respectful relationships through effective prevention of, and response to hostile, offensive, or intimidating behavior.” This resolution was developed to promote “continued growth of a respectful culture for graduate and professional students,” although the resolution applies equally to faculty relations. We strongly endorse the goal of a respectful culture for all interactions in governance as well, even when, or especially when, the view of truth differs.

Kate VandenBosch, FCC Chair, and Chris Cramer, FCC Vice-Chair


________comment submitted via email_________

(1) In her e-mail VandenBosch omits this significant part of the letter of Regent Chair Clyde Allen:
We do not intend to suggest that the broader concerns you raise related to protection of subjects involved in clinical research are unimportant.  We encourage the University community to engage in further discussion about the wider issues.
See the February 24 report of the FCC at

The question that Rotenberg submitted to the FCC about the "collective role of faculty in addressing factually incorrect attacks on University faculty research activities" is a far cry from the protection of patients in clinical trials. 

(2) There is an internal inconsistency in her description of the AF&T inquiry:

We wish to note, contrary to the views of some who may misunderstand the question posed to AF&T, that Mr. Rotenberg did not raise any question about academic freedom.  His question asked for a discussion regarding the role, if any, of the larger faculty when individual faculty membes criticize other faculty members.  We did not presume that any restraint on the academic freedom of members to criticize one another was being proposed. . . .
We look forward to further progress of the AF&T committee as members continue to discuss the dimensions of academic freedom and academic responsibility as they relate to criticism of the work and ethics of others.
(3) If no restraint on criticism is being proposed, then what is the purpose of the inquiry?  Do they not recognize that the very process of conducting such an inquiry has a chilling effect?  If they continue and develop a policy, then some faculty members may not speak for fear of having a sanction imposed for a violation of the policy.

(4) What authority does the AF&T committee have to determine the "collective role of the faculty" on any issue?  See the description of the duties and responsibilities of the committee in the Senate bylaws at

Tuesday, April 26, 2011

Should the General Counsel at the University of Minnesota

Take a Sabbatical for a Refresher Course 

in Constitutional Law?

This question occurred to me as I read my fellow alum Michael McNabb's guest post on constitutional issues and the recent request of Mr. Rotenberg for the faculty to consider whether unfactual statements were protected by academic freedom.

Mr. McNabb writes in a guest post:

On April 8, 2011 the Academic Freedom & Tenure Committee reported that it was considering this question:
What is the faculty collective role in addressing factually inaccurate attacks on particular University faculty research activities?
The question was "framed by General Counsel Mark Rotenberg and referred to this committee by the Faculty Consultative Committee."  See the report of the AF & T Committee at
The report produced an outcry that the very process of producing a policy on such a question would have a chilling effect on free discussion of research activities at the University.  The First Amendment prohibits the government from abridging free speech.  A state university may not exercise prior restraint on public discussion.  Lewis v. St. Cloud State University, 693 N.W.2d 466 (Minn. App. 2005).  Perhaps the AF & T Committee will quickly complete its work with the recognition that neither the faculty nor the administration has the authority to restrict speech at a state university (of all places). 
However, if the committee continues with attempting to develop a policy that would authorize sanctions to be imposed by a state university on statements made by a professor, then the commitee needs to review some principles of constitutional law.
The leading case in this area is New York Times Co. v. Sullivan, 376 U.S. 254  (1964).  On March 29, 1960 the New York Times published a full page advertisement that described a "wave of terror" against the civil rights movement in the South.  Some of the statements were not accurate descriptions of events in Montgomery, Alabama.  Sullivan, the supervisor of police in Montgomery, sued the newspaper for libel.  A state court jury in Montgomery awarded Sullivan $500,000 in damages.  The verdict was affirmed on appeal by the Alabama Supreme Court.
The United States Supreme Court reversed the decision.  The fact that the litigation was between private parties did not insulate the Alabama law on libel from constitutional review:

The test is not the form in which state power has been exercised but, whatever the form, whether such power has in fact been exercised.
376 U.S. at 265 (emphasis added).

Then the Court turned to the merits of the case:
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. . . . The question is whether [the advertisement] forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent [Sullivan].
376 U.S. at 271.

The Supreme Court then answered that question:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
376 U.S. at 280.

In subsequent cases the Supreme Court applied the actual malice standard to public figures and to limited purpose public figures.  See, Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) and Gertz v. Robert Welch Inc., 418 U.S. 323 (1974).
The Court discussed the rationale for the actual malice standard in Gertz:
The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby minimize its adverse impact on reputation.  Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to conteract false statements than priviate individuals normally enjoy.
418 U.S at 344. 

The Court also described a limited purpose public figure as an individual who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues."   418 U.S. at 351. 
The Minnesota Supreme Court applied these cases in Chafoulias v. Peterson, 668 N.W.2d 642 (Minn. 2003).  The state supreme court has also recognized a conditional privilege for communications made on a proper occasion, from a proper motive, and based on reasonable cause.  When the communication is made in good faith, actual malice must be proven before there can be any recovery of damages for defamation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980).
 The same legal principles would apply to any attempt by the faculty or administration of a state university to impose sanctions on a professor for his or her participation in a public debate.


November 23, 2010.  Eight professors and bioethicists submit a letter to the Regents requesting an independent investigation into the death of Dan Markingson while he was participating in a clinical trial at the University.  See Faculty Letter at
December 10, 2010.  General Counsel Mark Rotenberg meets with the Regents regarding the request.  See U of M Attorney at
February 7, 2011.  Regents deny request for independent investigation.  See Regents Play Innocent at
February 24, 2011.  General Counsel Rotenberg submits to the FCC the following question:  What is the faculty's collective role in addressing factually incorrect attacks on particular U faculty research activities?  FCC refers the question to the AF & T Committee.  See the February 24 report of the FCC at

 Michael W. McNabb
Attorney at Law

Who's making factually incorrect statements

at the University of Minnesota?

Readers should understand that, contrary to Dr. Elliot's assertions, the University did not sue Mary Weiss. Ms. Weiss brought suit against the University and others. Following the conclusion of any civil case in Minnesota courts, the prevailing party is entitled to recover certain out-of-pocket costs (not including attorney’s fees) as determined by the court. In this case, the University prevailed and its costs were submitted to the court for review in accordance with routine civil court procedure. Subsequently , when the parties determined that there would be no further court proceedings, the University voluntarily withdrew its claim to recover its costs before any award was made by the court.
Mark Rotenberg, General Counsel

Correspondence to Mary Weiss from  Pearson, Randall & Schumacher PA

Please see attached the Univ of Minn notice to assess costs of $ 57, 535.96.  In a move that I have never seen in the 14 years I have been practicing law, the Univ of Minn is requesting-without a hearing, to assess costs against Mary to punish her for bringing the case against the U. The law permits the prevailing party to get costs, but this is never done with the type of law I practice.  (We will be fighting the notice, and request a hearing on the costs)  
I respectfully recommend that we forward the U's assessment of costs to the press so they see how vicious and uncaring the University of Minnesota has been towards Mary. 


Added later 

A regular reader has sent an important comment via email which may clarify this situation:

The statute does entitle a prevailing party to recover his out of pocket expenses.  Minn. Stat. 549.04. 
The prevailing party in litigation usually does seek to recover those expenses.  The prevailing party files a notice of taxation of costs and disbursements with the court administrator (clerk of court).  If the other party files an objection, the administrator will make the decision in the first instance. 
If a party does not agree with the decision of the administrator, then that party may appeal the decision to the district court judge.  Rule 54.04 of the Minnesota Rules of Civil Procedure.
The University did agree to withdraw its request for costs and disbursements, but it was on the condition that Mary Weiss agree not to appeal the decision of the district court dismissing the claim against the University.  So the University was playing hardball with the mother of the deceased patient. 
It used its claim for costs and disbursements as a club to end the litigation. 
There may also have been a secondary purpose of giving a warning to others of the financial costs in making claims against the University for adverse events in clinical trials.  Mary's attorney also mentioned this possible secondary purpose to Professor Elliott.  See the final paragraph of his article.

 The university agreed to drop the lawsuit against Mary only when she agreed not to appeal the judge's decision. "Maybe they want to chill anyone who might think of challenging the university, even if her child had died," Pearson said. "It gave me a sick feeling."

(Pearson was an attorney for Mary Weiss.)

Mr. Rotenberg's version of these events thus still appears to be incomplete and less than transparent. 


Some Random Thoughts on

Emanations from Morrill Hall and a Faculty Committee

at the University of Minnesota

My fellow U of M alum, Michael McNabb, writes:

Some random thoughts:

(1) The Smoke Screen. 

General Counsel Mark Rotenberg tells The Chronicle of Higher Education:  "The faculty, as a collective body, should take an interest in attacks on their members that serve to deter or chill controversial research." 

And when did this happen, Mr. Rotenberg? 

Give one example that prompted your question to the FCC on February 24, 2011.  If none, then it appears that the real concern of the administration is that questions about research may chill grants of hundreds of millions of dollars for research that are necessary to support the enormous wager that the administration has made that the Biomedical Discovery District will pay off. See the Timeline at the end of Constitutional Law at

(2) Let Me Check My Notes to See What I Said Before. 

Just as in the Troubled Waters debacle, we have contradictory statements from the person in charge.

From the April 8 report of the AF & T Committee:

The question arose in the context of the young man who committed suicide while participating in a clinical trial, Professor Elliott noted, and committee members had been provided with materials related to the case as background . . . .
See the report at

From the April 19 e-mail of Professor Barbara Elliott to Professor Carl Elliott and Professor Charles Schulz: 

We do not consider the issues with regard to specific cases.  We intend to continue to discuss the issues . . . but we will not be concerned about, nor focus on, the Markingson case.
Consequently, although I am grateful for your offers to add to our committee's information and background regarding your experiences, I must decline.  They would not add insight to our work on the OGC's specific question.
See For the Record at   
Michael W. McNabb
Attorney at Law


This is the fourth recent debate over academic freedom at the U.
In addition to the two mentioned, there was the gaffe in which a U administrator tried to suppress the airing of a film about agribusiness and river quality.
The other is not public--I was working on torture in Abu Ghraib. I had mentioned that one of the interrogators was working for a contracted Security Firm. The firm wrote to the U president threatening legal action. I sent my documentation to the president who informed me that it was not needed and that he ignored the firm's letter as an infringement on academic freedom.
The U is a place for academic freedom.
If a party who is at the U believes that they are libeled or defamed, there are civil court standards and procedures for making such a claim.
An aggrieved party should not low-ball the effort by using a U committee.
Steven Miles, Professor of Medicine

Emphasis mine.

Professor Miles is a bioethicist of high repute. 


Inside Higher Ed Notes
Strib Community Voices Post  

about the U, Academic Freedom,

and Prof Carl Elliott

Debate Over Academic Freedom at Minnesota

Some University of Minnesota faculty members are criticizing the institution for a request that the faculty committee that reviews academic freedom issues consider the question of "factually incorrect" attacks by faculty members on one another.
While the university has portrayed the question as legitimate, faculty critics -- as outlined in this op-ed in The Star Tribune -- see the question as one that will intimidate faculty members from raising tough questions, such as those in a recent request for more reviews of a clinical trial.

In Request, Some U. of Minnesota Faculty Members 

See an Effort to Silence Critics of Research Ethics

By Tushar Rae (emphasis mine)

At the prompting of the University of Minnesota's general counsel, a committee of the University Senate has taken up the question of how faculty should collectively respond to "factually incorrect attacks" on particular faculty research.
Some faculty members say that direct appeal from the general counsel, Mark B. Rotenberg, is an attempt to quiet some faculty members' criticism of drug trials conducted at the university, including one seven years ago in which a participant, Dan Markingson, committed suicide. Before they took up the general counsel's question at a meeting this month, members of the university's Academic Freedom and Tenure Committee were provided with copies of material related to that case, including a letter sent by eight bioethicists to the Board of Regents last fall, asking it to appoint a panel of outside experts to examine the ethical issues raised by the death.
Committee members discussed with two administrators who attended that meeting, on April 8, whether faculty members have a responsibility to respond to attacks on fellow faculty members, according to minutes from the meeting; failure to do so, one professor said, could be seen as parallel to "bullying."
Carl Elliott, a professor in the university's Center for Bioethics, has continued to draw attention to the Markingson case, including by writing the letter to the regents with seven other professors from the bioethics center requesting the inquiry. Legal and university authorities found no wrongdoing by those involved in the drug trials, the university said, and the eight professors' request of the board was declined.
Last fall, Mr. Elliott wrote a piece for Mother Jones, an investigative-journalism magazine, about the perils of the university policies surrounding drug trials, focusing specifically on the Markingson case.
In an interview, Mr. Elliott said the general counsel's actions are troubling. 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 intimidation and punitive action, Mr. Elliott said.
Mr. Rotenberg said Mr. Elliott is misunderstanding the situation. He and the university are not seeking to use the faculty senate to quiet criticism or to intimidate or punish anyone, he said.
He said he asked the faculty senate to discuss the issue of how to handle allegations professors make against one another because he thinks it is imperative that the faculty, and not just the administration, have a role to play in dealing with those matters. "The faculty, as a collective body, should take an interest in attacks on their members that serve to deter or chill controversial research, " Mr. Rotenberg said in an interview.
Mr. Rotenberg previously issued a statement about Mr. Elliott's Mother Jones piece, presenting the university's viewpoint and challenging the accuracy of some statements in the article.
Mr. Rotenberg said he has not suggested that the faculty senate reprimand Mr. Elliott, nor is he aware of any action being considered by the administration against Mr. Elliot.

Rights and Limits of Academic Freedom

The committee that is tackling Mr. Rotenberg's question is chaired by Barbara A. Elliott, a professor of family medicine and community health at the university's Duluth campus, and Karen L. Miksch, associate professor of law and higher education at the Twin Cities campus.
Ms. Elliott, who is unrelated to Carl Elliott, and Ms. Miksch say that their panel is not in any way being used as a tool for intimidation. They say they have been considering the rights and limits of academic freedom and the free-speech rights of public employees for quite some time. The committee is also working on a white paper to detail rights and limits of academic freedom to serve as an introduction to those who are not familiar with academic freedom and as a refresher for those who are.
"I support every single academic's right to academic freedom and their opinions," Ms. Elliott said in an interview. The committee's task, she says, is not to talk about specific cases but rather broad policy questions.
Ms. Miksch echoed Ms. Elliott."If anyone else feels like they are being intimidated and threatened, they should go to the judicial committee," she added. "We just do policy." The white paper will attempt to educate faculty members about the options of recourse they have if they feel as if their academic freedom is being threatened, she says.
The committee held two meetings this month, the most recent one last week, that considered the questions Mr. Rotenberg asked about the appropriate faculty response to criticism of others' research.
For some faculty members, the discussion that took place in the first of those meetings, the one on April 8, was troubling.
After reading the minutes of that meeting, Naomi Scheman, a professor of philosophy on the Twin Cities campus and the president of Minnesota's chapter of the American Association of University Professors, wrote a letter to Ms. Elliott expressing concern that some of the discussion at the committee's last meeting "seemed to be presuming that the claims made against the researchers were false."
"The committee cannot work on that highly prejudicial presumption," she wrote. "It is precisely what is at issue in the case."
Ms. Scheman, who attended the committee's meeting last week, said it was "inappropriate of Mr. Rotenberg to ask and inappropriate of the committee to discuss" those issues.
For anyone in that first meeting this month to suggest that Mr. Elliott or the other critics were stifling researchers' ability to work, Ms. Scheman says, is "ridiculous." Since the administration seems to be firmly behind the researchers, she adds, any implication that the letter writers are a threat means "the story of David and Goliath is being mixed up."
For his part, Mr. Elliott says he feels better after the meeting last week. Though he is concerned about his position at the university, he said the support he has received from some of his peers has been comforting. He also reiterated his call for change.
"The letter was not attack on individuals, but on the way trials are being conducted here," he said. "That needs to be fixed."


Monday, April 25, 2011

New Post Up on Community Voices - Star-Tribune

Potential Threat to Academic Freedom

at the University of Minnesota

From an email received this morning:

Faculty for the Renewal of Public Education
*3.  Potential Threat to Academic Freedom.*

General Counsel Mark Rotenberg has asked the Academic Freedom and Tenure Committee (AFTC) to consider whether "factually-incorrect attacks on particular University faculty research activities" are protected by academic freedom.   
The administration raised the issue with reference to Carl Elliott's (Professor, Center for Bioethics) writing and public speaking about the death of Dan Markingson during a clinical trial conducted at the U. 
 In our view, defamatory speech does not pertain to academic freedom, so it's unclear why the administration has asked the committee to consider this issue. 
 Moreover, the administration has not presented any evidence to support its allegations regarding "factually-incorrect" statements by Professor Elliot.   
We consider the administration's action to be an effort to intimidate faculty who publicly criticize university policy.   
On Friday, the AFTC held its second discussion on the matter, and a number of concerned faculty attended, including the President of the local chapter of the AAUP, Naomi Scheman.   
We are optimistic that this effort by the administration will be killed in committee, but we urge faculty to remain vigilant. 
The minutes of the initial discussion of the AFTC are appended below. 
The letter from Naomi Scheman to the AFTC, and AFTC co-chair Barbara Elliott's response, can be read here:   
Carl Elliott's exchange with Barbara Elliott on this matter is available here:


Sunday, April 24, 2011

University of Minnesota's Carl Elliott

Awarded Harvard Fellowship to 

Study Institutional Corruption

"The Network Fellowship is a new program connecting a cross-disciplinary group of scholars and practitioners around the world who are currently working independently on issues of institutional corruption as academic research projects or applied within their organizations."
"The purpose of the network is to connect these researchers and practitioners with each other to inspire new works of scholarship, and applications that are designed to solve problems of institutional corruption." 

This is a high tribute to Dr. Elliott's reputation in this area. Unfortunately, as is often the case, a prophet is without honor in his own land, as exchanges found on this blog amply illustrate, e.g. preceding post.

Congratulations to Dr. Elliott.  If we had more people like him at the University perhaps we would actually have a chance at being a top university?

Dr. Elliott's Research Topic: Corruption in Clinical Trials

For the University of Minnesota Record

Elliott (Carl) - Elliott (Barbara) 


(added emphasis mine)

Date: Tue, 19 Apr 2011 07:01:32 -0500
From: Carl Elliott <>

Subject: Committee on Academic Freedom and Tenure


I saw that the letter from Center for Bioethics faculty members about the suicide of Dan Markingson was discussed in the 4/8 meeting.  Just a point of correction: there was nothing factually inaccurate in the letter.  I'm not sure if the Committee understood that I had access to the legal and medical records from the case, and that my article in Mother Jones was thoroughly vetted and approved by the magazine's lawyers and fact-checkers.  Maybe it would be helpful if I sent the Committee a referenced version of the article with the relevant records appended?

Also, if our letter is going to be discussed again, it seems only fair that we be allowed to attend.



Carl Elliott MD PhD
Professor, Center for Bioethics

From: Barbara Elliott <>
Subject: Committee on Academic Freedom and Tenure
Date: Tue, 19 Apr 2011 10:54:43 -0500

Cc: """" <>,
   Aaron Friedman <>,
   R Mulcahy <>,
   Gary Engstrand <>

To: Carl Elliott <>,
   S Charles Schulz <>

Hello to you each, Chuck and Carl--

Thank you for your careful reading of our Academic Freedom and Tenure minutes. You are correct--we have been asked to respond to The Office of General Counsel's question: What is the faculty collective role in addressing factually-incorrect attacks on particular University faculty research activities? From what you each reveal, this question is evidently related to your circumstances.

AF+T, as you likely know, is a policy committee. We do not consider the issues with regard to specific cases; there are other mechanisms within the University structure to do that. The Markingson case served as a prompt for the request that we consider the issues; it is by no means the only such incident, and we have been asked to consider the general question, not the case specifically. We intend to continue to discuss the issues raised in our conversation with Vice Presidents Friedman and Mulcahy, but we will not be concerned about, nor focus on, the Markingson case.

Consequently, although I am grateful for your offers to add to our committee's information and background regarding your experiences, I must decline. They would not add insight to our work on the OGC's specific question, and if there were more contact among us, I would feel compelled to recuse myself from the AF+T committee's work on this question.

Thank you for your interest. --b