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Legal Watch: Corporate Interference in Research
By Donna R. Euben
A disturbing trend in higher education is corporate interference in academic research. The 1940 Statement of Principles on Academic Freedom and Tenure provides that "[t]eachers are entitled to full freedom in research and in the publication of the results." And in 1957 U.S. Supreme Court Justice Felix Frankfurter recognized in Sweezy v. New Hampshire that inquiries into social problems "must be left as unfettered as possible." Recently, however, some corporations have started to use legal maneuvers to compel faculty members to disclose confidential academic research or to restrict the publication of scholarly work funded by, but critical of, a corporation. Such actions threaten the academic freedom of both individual professors and institutions of higher education.
In 1998 Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, was sued for defamation by Beverly Enterprises, which owns a chain of nursing homes. Bronfenbrenner testified at a congressional "town meeting" about her research on the company’s violations of labor law. The company not only sought $225,000 in damages, but also demanded that she turn over years’ worth of confidential research, including interviews with company workers and union leaders. The company ultimately dropped the suit, but damage was done. As Bronfenbrenner reported, "I’ve had numerous phone calls from people who are afraid to do research analyzing corporate behavior, because they don’t want to end up in jail." Cornell University vigorously defended her in the suit, and the AAUP filed a friend-of-the-court brief on her behalf.
Also in 1998 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 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 federal appellate court ruled in favor of the researchers, finding that professors, like journalists, have a right to maintain the confidentiality of their sources under the First Amendment. The court recognized Microsoft’s need for the notes and tapes, but found that the company’s interests did not outweigh the rights of the professors: "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."
Legal maneuvering can also be triggered when a faculty member seeks to publish research that is funded by, and critical of, a corporation. 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 Brown released him after he presented information, 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. Kern had signed a nondisclosure agreement in 1994 with the manufacturer and the hospital, but contended that it did not govern subsequent consulting work that generated 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."
Faculty members and administrations must work together to protect "unfettered" academic research from corporate interference. As Arthur O. Lovejoy, a founder of the AAUP, observed in a 1937 AAUP article, "The distinctive social function of the scholar’s trade cannot be fulfilled if those who pay the piper are permitted to call the tune."
Donna Euben is AAUP counsel.
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