Jennifer Washburn: Academic Freedom and the Corporate University

Jennifer Washburn:  Academic Freedom and the Corporate University
Commercial threats on campus have mounted—from industry control of research and corporate ghostwriting to restrictive sponsored-research agreements and intellectual property deals that place profits ahead of public health.

Heightened commercialism on campus is pulling universities and their faculties away from higher education’s core commitment to academic research, teaching, and the production of reliable public knowledge. Nearly a century ago, similar threats led to the birth of a new faculty organization—the American Association of University Professors—dedicated to advancing the scholarly professions across all disciplines and to safeguarding intellectual and academic freedom.

The founding of the AAUP in 1915 was largely a response to the overweening influence that powerful corporate interests and wealthy donors then exerted over the internal academic affairs of American colleges and universities. In their classic 1955 history, The Development of Academic Freedom in the United States, Richard Hofstadter and Walter Metzger point to nearly a dozen well-documented academic freedom cases between the late 1880s and early 1900s that exhibited essentially the same ugly pattern: a professor had criticized the social order or espoused economic reforms and had thereafter been targeted for summary dismissal, often by a local industrial magnate, a wealthy donor, or a powerful businessman who sat on the university’s board of trustees.

The AAUP, and the academic community generally, struggle today—and have been largely ineffectual—in their response to heightened forms of academic commercialism that threaten the university’s core academic purposes.

Academic-industry relationships are certainly not new or uniformly a problem: indeed, they have contributed to the advancement of science, the birth of new academic disciplines, and the development of important technologies. Over the past thirty years, however, commercial threats to campus activities have mounted as a result of the rapid growth of academic patenting and proprietary controls on academic knowledge, the rise of a more market-driven university administration, the expansion of financial conflicts of interest (both at the faculty and institutional levels), cutbacks in public support for higher education, and a variety of other forces (topics discussed in detail in the November–December 2010 issue of Academe). In many cases, commercial influences are affecting academic standards of scholarship and professional norms (through serious conflicts of interest, growing secrecy, suppression of negative results, and so on), while also challenging universities’ oft-stated commitment to the pursuit of truth and the advancement of reliable knowledge, in contrast to “corporate-contract research for hire.”

Two cases—involving two prominent professors at Brown University, David Kern and Martin B. Keller—illustrate some of the acute challenges that academic commercialism poses to academic freedom. Holding up a mirror to these two contrasting cases, and the responses they elicited, helps show why faculty need to confront excessive commercialism and financial conflicts on campus more aggressively.

Over the years the Kern and Keller cases have been the subject of considerable media attention, scientific journal articles, and critically acclaimed books. Most of this publicity and criticism came well after the events had occurred, however, raising critical questions: Will the academic community find ways to respond to commercial threats in a timely manner? If not, how can the universities’ commitment to scholarship, free inquiry, and public values be preserved?

The Hospital, the Corporation, and Workers’ Lungs

First, the case of David Kern. The following account is drawn from primary documents provided by Kern, a Brown University investigation of Kern’s case (performed by associate deans who were appointed by the dean of Brown’s Medical School at the time), and Kern’s own account published in the International Journal of Occupational and Environmental Health. Kern served as a faculty member at Brown’s School of Medicine for fifteen years, starting in 1984; during his last five years, he was an associate professor. Like many other medical professors, he also worked as a clinician at Brown’s affiliated Memorial Hospital, where he directed an environmental- and occupational-health clinic. In the mid-1990s, Kern received visits from two patients suffering from a rare lung condition; both happened to work at the same factory run by Microfibres, Inc., a Rhode Island firm that manufactures nylon-flocked fabrics. Microfibres was a hospital donor, and its owner and two family members sat on Memorial’s board. With the company’s permission, Kern and his students made one preliminary visit to Microfibres’ factory to conduct air tests, but these turned up little. Fifteen months later, in March 1996, Kern proposed that Microfibres hire him as a consultant to conduct a more thorough health investigation, and the company agreed.

Both Microfibres, Inc., and Memorial Hospital declined to provide any comment for this article. Records show that Memorial Hospital processed Kern’s consulting payments but did not negotiate a formal research contract with Microfibres. Kern states that he separately pressed Microfibres to sign his own contract drawn up by his clinic, but when the company refused, he continued seeking the cause of his patients’ illnesses.

In time, Kern had identified ten workers, out of 165 at the Microfibres plant, who were suffering from variations of the same rare condition, known as interstitial lung disease. He also identified a similar lung outbreak in a nylon-flocking factory in Canada and soon determined that he had sufficient evidence to publish on what he believed was the existence of a new lung disease. He informed Microfibres of his plans to publish and present his findings at an American Thoracic Society meeting in May 1997. Microfibres threatened to sue, citing the confidentiality agreement Kern had signed fifteen months earlier, during his initial air-testing visit. Kern turned to Brown University for support, but Brown officials told Kern he should not publish or present what he found. In a document dated November 18, 1996, Peter Shank, Brown’s associate dean of medicine and research, told Kern that, based on the earlier confidentiality agreement, “I see no way in which you can publish results of your studies at the company without their written approval. . . . You should immediately withdraw your abstract [from] the national meeting.”

Kern states that he was shocked: patients’ lives were at stake. (One patient had already died; two others were seriously ill.) In Kern’s view, Brown had a moral and medical obligation to make his research public and to ensure that workers under his care, as well as workers at other nylon-flocking plants elsewhere, were receiving appropriate preventive treatment and care. Besides, it was Kern’s opinion—and that of his legal advisers—that the confidentiality agreement Kern had signed during his prior air-testing visit referenced only “trade secrets,” which Kern’s health investigation would not touch upon or disclose.

Then, in a December 23, 1996, memorandum, Memorial’s president instructed Kern to “withdraw [his] abstract from publication or presentation before the deadline of Jan. 15, 1997.” The hospital, he stated, was shutting down Kern’s entire occupational-health program “effective immediately.” Brown’s medical school dean, Donald J. Marsh, initially stated publicly that he was never consulted about the closure of Kern’s program, but in an April 30, 1997, letter to the hospital’s president, he wrote that he was notified and “raised no objection.”

Over the course of that spring and summer, Kern’s case began to attract the attention of high-profile public health professors, resulting in more than a hundred letters addressed to Brown protesting Kern’s treatment. Kern also sought help from Brown’s faculty senate and the AAUP, but no organized defense of Kern ever materialized.

Kern proceeded with his publication and presentation at the thoracic society conference, where he presented evidence of what he considered to be a new lung disease. Brown issued a statement at the time noting that “many questions remain unresolved” about the case but expressing support for Kern “in his right to conduct research and in his academic freedom to publish results.” Less than a week after the conference, however, Kern received two letters, one from Brown’s president, Vartan Gregorian, and the other from the president of Memorial Hospital, Francis Dietz. The letters stated that, as a result of the closure of the occupational-health program, Kern’s teaching and research were being eliminated. (Kern would remain at the hospital until his five-year contract ended in 1999, but the closure of the program meant that he was unable to seek research contracts within his own field of occupational and environmental medicine.) Later that fall, Kern received a letter from the Centers for Disease Control and Prevention officially recognizing the new disease he had identified: flock worker’s lung.

The University, the Corporation, and Depression

Now we turn to our second case, providing a mirror image to Kern’s case in key respects. Martin Keller, who also served as a Brown professor, was chair of its psychiatry department. Between 1990 and 1998, Keller brought in more than $8.7 million in research funding from pharmaceutical companies, including SmithKline Beecham (later GlaxoSmithKline, or GSK). Then, in 2001, Keller was lead author of a widely publicized article, which appeared in the Journal of the American Academy of Child and Adolescent Psychiatry, based on a clinical research study dubbed “Study 329.” Keller’s study, funded by GSK, sought to evaluate the safety and effectiveness of two antidepression medications, including GSK’s own drug Paxil (paroxetine), for treatment of depression in adolescents. At the time, Paxil was already a blockbuster depression drug for adults, but the Food and Drug Administration had yet to review or approve its safety for use in children or teens. Keller’s published article was significant because it reported that Paxil was also “generally well tolerated and effective for major depression in adolescents.”

Soon, with the help of GSK’s marketing system, Keller’s article became among the most frequently cited in support of using antidepressants in children and teens, thereby opening the door for doctors to elect “off-label” prescriptions of the drug for younger populations. Prescriptions for Paxil continued to soar.

But questions began to be raised about whether Keller’s own study data supported his claims about the effectiveness and safety of Paxil. In 2004, three years after the publication of Keller’s study, New York State attorney general Eliot Spitzer filed a suit charging GSK with “repeated and persistent fraud,” based in significant part on internal Food and Drug Administration investigations of the actual raw data associated with Study 329 and other GSK-funded Paxil studies. GSK eventually settled this case out of court but maintained that the charges of fraud were unfounded.

Then, in 2008, a team of academics led by psychiatrist Jon Jureidini of the University of Adelaide in Australia published a second independent analysis of Study 329’s raw data, which found “no significant difference” between Paxil and a sugar pill on any of the study’s eight prespecified outcome measures, in the International Journal of Risk and Safety in Medicine. In other words, contrary to what Keller had reported, Paxil failed to show effectiveness in the treatment of childhood depression. The Jureidini study found that, after Keller and his co-authors broke their scientific “blind,” intended to protect researcher objectivity, they added and tested a variety of new study endpoints. (This is often dubbed “data dredging,” because the process can be used to search for more desirable outcomes.) As the Jureidini team noted, “the rationale given for these extra measures was that they were added according to ‘an analytical plan developed prior to opening of the blind’”; however, no written evidence of this plan has ever been produced, “raising uncertainty about Keller et al.’s claim.”

According to the Jureidini study, Keller and his co-authors also presented a distorted picture of Paxil’s safety by failing to report that eleven of the study’s patients taking Paxil had suffered serious adverse side effects (including eight cases of suicidal behavior and thinking). Keller’s published study noted simply that, of the eleven patients, only one experienced a side effect (a headache) considered related to the treatment. Keller, in a 2003 letter to the editor of the Journal of the American Academy of Child and Adolescent Psychiatry responding to earlier charges of distorted reporting, stood by his findings, arguing that they still provided “significant evidence of efficacy of paroxetine compared with placebo in adolescent depression.”

Patient litigation related to the Paxil case also led to the release of internal company documents suggesting that Keller had violated traditional standards of “academic authorship” and “independent scholarship” by working closely with a GSK-paid ghostwriter. These documents also raised questions about the accuracy of the study’s findings. In one in-house e-mail message dated October 14, 1998, a GSK executive notes, “The results of the [Paxil] studies were disappointing. The possibility of obtaining a safety statement from [these] data was considered but rejected. The best which could have been achieved was a statement that although safety data [were] reassuring, efficacy had not been demonstrated.” This may explain why GSK hired a professional ghostwriter to work with Keller.

In 2008, shortly after Jureidini’s study appeared, David Egilman, a clinical associate professor in community health at Brown University, sent an e-mail to David Kertzer, Brown’s provost, requesting that the university investigate Keller’s possible role in scientific misconduct. In 2009, the Brown Daily Herald, the student newspaper, published an editorial questioning Brown’s apparent reluctance to hold Keller accountable. In September 2010, I asked Brown to formally comment on the status of any internal investigation of Keller and to explain why Keller had been retained in his position as chair of psychiatry through the end of 2009. Brown’s communications office replied as follows: “Thank you for your inquiry regarding faculty research. The University takes seriously its obligation to ensure integrity in the conduct of academic research and scholarship. While individual cases are confidential, the University investigates any and all allegations of misconduct and takes appropriate action.” Brown’s website currently states that Martin Keller is a full professor who “made major research contributions to the understanding and treatment of mood disorders.”

Academic Commercialism

Is Brown committed to money or to scholarship? This is not merely a rhetorical question. Kern fought to defend his academic integrity and medical responsibility to patients when relations with his corporate sponsor soured. Keller worked with a drug industry sponsor to publish what the Jureidini study suggests were intentionally mischaracterized medical findings that placed the public’s health at risk.

Keller and Microfibres brought in money to Brown University. Kern brought in far less.

The Keller and Kern cases help to illustrate what’s wrong with current efforts to address commercial threats to academic freedom; they also demonstrate why greater AAUP engagement in addressing these commercial threats, and defining “best practices” for academic industrial relationships, is urgently needed. The AAUP’s Policy Documents and Reports does include a 2004 Statement on Corporate Funding of Academic Research and a 1990 Statement on Conflicts of Interest, but the academic community needs far more precise standards and greater engagement on commercial issues (see sidebar for some suggestions).

In recent years, editors of science journals, members of Congress, federal agencies, education experts, public interest groups, and professional societies—including the Institute of Medicine—have called on US universities to regulate financial conflicts of interest on campus more vigorously. By and large, however, the academic community has resisted regulation of commercialism on campus as well as periodic attempts by the federal government (in 1989, 1995, and 2001) to attach stricter conflict-of-interest rules to the receipt of federal research grants. A growing chorus of critics now considers these university-enforced conflict-of-interest rules far too variable and weak.

In part, this avoidance of the adverse effects of commercialism stems from not wanting to bite any hand that feeds (even though today private industry accounts for a mere 6 percent of academic research funding nationally; 60 percent of academic research is funded by the federal government). Commercialism can be tricky for the faculty to tackle, in part because it often pits faculty members against one another.

However, in my view, another major obstacle stems from the faculty’s current tendency to view academic freedom more as an “individual right” than as a collective, professional right rooted in the university’s core commitment to knowledge for the public good. Consider, for example, the conflict-of-interest problem on campus. Today, one frequently hears entrepreneurial faculty members argue that any effort to restrict financial conflicts of interest (by academic administrators, journal editors, or the federal government) constitutes a violation of individual professors’ academic freedom rights, because such regulation could impede the financing of a professor’s research. In 1993, Kenneth Rothman, an epidemiologist currently at Boston University’s School of Public Health, likened policies requiring mere public disclosure of a professor’s financial conflicts of interest (by science journals, for example) to academic “McCarthyism.”

If the academic community wants to address the formidable challenges raised by academic commercialism, it must reject this overly narrow, individualistic interpretation of academic freedom and return to the highly persuasive arguments about collective academic freedom and the public good that the AAUP originally advanced to justify academic freedom in its 1915 Declaration of Principles on Academic Freedom and Academic Tenure and other early statements. This original defense of academic freedom may be roughly summed up as follows: in order for US universities to have the ability to fulfill their research and teaching responsibilities for the benefit of society, professors must be treated not as mere contract employees but rather as professional scholars who are free to think critically and speak openly without fear of arbitrary dismissal or other workplace censorship and retribution. The societal benefits that can emerge from this unique academic sphere include the provision of a broad-based, liberal education; expert advice (for government agencies, industry, and the broader public); pathbreaking scientific research; noncommercial research for the public good; graduate-level training; and other educational and knowledge functions uniquely performed by universities. This founding justification for why the public should grant tenure and intellectual freedom to professors is essentially one of “rational instrumentality”: if society is going to subsidize the university, and its professors are going to be asked to provide scholarship, expertise, and advice, then society must have bona fide assurances that those professors’ research and academic work are rooted in rigorous scholarship, scientific methods, and disinterested inquiry and have not been unduly influenced by outside special interests. This was a profoundly bold concept in 1915: before then, most university boards of trustees treated academic employees as workers for hire who could be dismissed at will.

However, as the AAUP’s founding Declaration makes clear, this extraordinary privilege of academic freedom also comes with responsibilities. In exchange for academic freedom (not to mention financial support), professors are expected to dedicate themselves to the advancement of scholarship, the search for truth, and knowledge generation for the public good. In the words of the 1915 Declaration, “The existence of this association . . . must be construed as a pledge, not only that the profession will earnestly guard those liberties without which it cannot rightly render its distinctive and indispensable service to society, but also that it will with equal earnestness seek to maintain such standards of professional character, and of scientific integrity and competency, as shall make it a fit instrument for that service.”

This is the underlying social compact into which the academic profession entered in order to ensure its intellectual freedom. Our current tendency to view academic freedom as a personal “right”—disaggregated from these collective commitments—has made regulating campus-based commercialism more difficult. Emphasis on individual rights has enabled powerful academic constituencies to use the banner of academic freedom to argue— inappropriately, in my view—for a laissez-faire approach to campus commercialism, which has made collective faculty attempts to rein in commercialism far more challenging.

Consider what happened in spring 2007, when the faculty senate at the University of California, Berkeley, voted on two resolutions relating to BP’s ten-year, $500-million biofuels research alliance with Berkeley and two other major public research institutions. One resolution called for an independent “blue-ribbon” faculty committee to oversee the BP alliance and to draft a set of protocols capable of guiding the future of large-scale industrial alliances on campus. The other, introduced by Randy Schekman, a prominent molecular biologist, sought to counter the first resolution. Schekman’s resolution asserted that “neither the Academic Senate nor any faculty may infringe on the right to freedom of inquiry by other faculty by seeking to deny them public or private research resources that fall within the existing rules and regulations of sponsored research at the University of California at Berkeley.” This second resolution, based on an excessively individualistic reading of academic freedom, won the day with overwhelming support from professors in the hard sciences, even though there was never any faculty proposal on the table to cut off faculty funding from BP.

The Path Forward

The more the academic community exposes what is at stake when its mission to serve the public good is threatened, the more the social value of the university’s unique labor force is revealed and affirmed. If, for example, David Kern’s case had been championed more vigorously, it might have served to demonstrate why academic physicians need the protections of academic freedom in order to carry out vital public-health research. Similarly, if academic professional societies had called for an investigation into the case of Martin Keller, their findings, too, might have galvanized a larger movement to “take back” academic medical schools from the pharmaceutical industry. These were missed opportunities to affirm the public value of the university.

Since I first began writing about academic commercialism in 1998, I have spoken to dozens of professors who have tried to oppose commercial threats to the core academic mission of universities but encountered lukewarm or inadequate support from academic peers, unions, and national academic bodies such as the AAUP, the Association of American Universities, and the Association of American Medical Colleges.

Kern now works outside his field of occupational health and is no longer in academia. He provides direct inpatient care at Togus Medical Center in Maine. In a recent e-mail message, he wrote, “The AAUP hosted a press conference on my case in Boston . . . in the spring of 1999 just as I was preparing to leave [my position at Brown University]. Too little too late in contrast to the impressive work of the Canadian Association of University Teachers in support of Nancy Olivieri.” (Olivieri is a professor at the University of Toronto in Canada who waged a long, ultimately successful academic freedom battle involving a major university hospital donor; see James Turk’s article in the November–December 2010 issue of Academe for a discussion of the case.)

In an interview, the AAUP staff member who handled Kern’s case explained that while he sympathizes with Kern’s frustration, the AAUP is bound by existing procedures and protocols. In general, the AAUP will not undertake an investigation concerning a faculty member’s academic freedom claims while there is opportunity for the faculty member’s grievances to be investigated by a duly constituted faculty body on the professor’s own campus.

I can certainly understand why an organization like the AAUP, with its limited resources, might have trouble thoroughly assessing each academic freedom case that comes its way. The AAUP deals each year with close to a thousand cases calling for its advice and assistance, and only a handful become the subject of full investigations and published reports. Recently, the AAUP has addressed cases involving threats to academic freedom from commercial sources, such as BP’s confidentiality agreements with academic scientists working in the Gulf of Mexico and the agricultural industry’s attempts to block a film screening at the University of Minnesota, through statements of concern and investigative inquiries.

More concerted, collective action is needed, however, to address commercial threats to academic freedom. In the sidebar, I outline how I believe the AAUP and other academic organizations can better address these commercial challenges and preserve the university’s unique public mandate.

The time to act is now. If the university looks and behaves more and more like a for-profit commercial entity—and its commitment to producing and transmitting reliable public knowledge grows increasingly suspect in the public’s eye—then the societal justification for academic freedom will simply fall away, as will the public’s willingness to finance universities. Much as they did when the AAUP was founded, the faculty must take the lead in addressing these threats to the national interest.

Portions of this article were adapted from University, Inc.: The Corporate Corruption of Higher Education.

Jennifer Washburn is a research analyst and freelance journalist based in Brooklyn, New York. She is the author of University, Inc.: The Corporate Corruption of Higher Education and recently served as a Frederic Ewen Academic Freedom Fellow at New York University. Her e-mail address is

Academe, 2011 January-February