Penn State’s Protection Racket, 17: Academic Freedom

Here’s the opening of Penn State’s policy on academic freedom (HR 64):

Academic freedom refers to the environment provided by the University that permits faculty members to engage in their scholarly pursuits of teaching, research, and related activities at institutions of higher education.

This, then, is the “framework” that matters. The university provides an environment for faculty to do their work–including research and “related activities.”

Academic freedom thus embodies the conditions necessary for the University to fulfill its mission of creating new knowledge and of effectively communicating accumulated knowledge and understanding to students and to the community at large.

The university fulfills its mission when it provides academic freedom to its faculty. The university’s mission is fulfilled by faculty pursuing their teaching, research, and related activities.

With academic freedom comes “academic responsibility”:

Academic responsibility refers to the duty and obligation of all faculty to pursue their academic pursuits with forthrightness, recognizing that while all members of the University have the right to express their own views and to hear the views of others expressed, as well as the responsibility for according the same rights to others, they also have a duty to make it clear when they are not speaking for the institution in matters of public interest.

That is, the duty faculty have to the university is to pursue their work “with forthrightness.” That might well be the basis for disclosing their work and not keeping it secret, but there’s nothing, absolutely nothing here that would indicate that the university should own and control all such work, whenever administrators get it into their heads that they might sell off that work (and especially sell that work off as monopolies, and especially rather sell off the monopoly who gives a rat’s ass about the work that created the opportunity for the monopoly). Along with this responsibility is to make it clear that one does not speak for the institution when pursuing one’s academic work. That makes sense. But the point of academic freedom is simply that faculty should speak for themselves and not claim that any one of them speaks for the institution “in matters of public interest.” And there’s nothing here at all that suggests that faculty cannot speak (or act) if an administrator purports to speak on a matter of public interest. An administrator, for instance, might create a university statement on catastrophic, CO2-driven climate change , but that does not mean all faculty in atmospheric sciences must then tow the line and conduct research only if it supports the administrator’s statement (and thus an “official” university position).

Academic freedom thus embodies the conditions necessary for the University to fulfill its mission of creating new knowledge and of effectively communicating accumulated knowledge and understanding to students and to the community at large. Academic responsibility refers to the duty and obligation of all faculty to pursue their academic pursuits with forthrightness, recognizing that while all members of the University have the right to express their own views and to hear the views of others expressed, as well as the responsibility for according the same rights to others, they also have a duty to make it clear when they are not speaking for the institution in matters of public interest. The University should be an institution whose members may express themselves, while protecting and respecting the rights of others to learn, to do research, and to carry out the essential functions of the University free from interference or obstruction.

We might then ask, in a university that promises academic freedom, what obligations does a faculty member or student have to the university? How do these obligations arise? To strip faculty and students of their place in the university, and consider them only as “individuals” is already to pack into the premise a repudiation of the relationship that faculty and students have with the university. There’s a reason to do this, of course, and we will get to it. But the ploy is evident in stripping faculty and students of their standing in order to announce a policy on conflict of interest.

Here’s Penn State’s policy on academic freedom “related to the University”:

The efficient operation of any institution requires cooperation among its personnel. The faculty member agrees, therefore, to abide by the regulations of the University, and to perform to the best of his/her ability such reasonable duties as are assigned by authorized University officials. Faculty members are free to speak and write on governance issues of their respective departments, colleges, units, libraries, and of the University as a whole, and are free to speak and write on all matters related to their professional duties without institutional discipline or restraint. Similarly, faculty members recognize that they are expected to exercise professional responsibility in their service roles. Faculty members are responsible for respecting confidentiality and the privacy rights of others.

Duties are those that “are assigned by authorized University officials.” Do faculty have an assigned duty to “transfer technology”? To turn over their personal property to administrators for licensing fun for profit? Not here. We will ask whether “the regulations of the University” may properly include assignment of one’s personal rights in inventions to the university, as a condition of “employment/appointment/association.” We will answer, no, they cannot. And Penn State administrators no doubt will go WTF, we can do whatever we want. And perhaps they can, these days.

The academic freedom policy then considers, as a separate matter, research. Clearly, research is not something “assigned by authorized University officials.” Research is not a matter “related to the University.”

Faculty members are free to engage in research or scholarship of their own undertaking, and in the publication of the results, subject to the adequate performance of other academic duties.

A patent application is a publication. That’s the very heart and soul of a patent–that the inventor publishes her invention in exchange for a limited monopoly on the practice of the invention. If the academic freedom policy is followed, then Penn State cannot demand, outright, ownership of any and all inventions. But here’s the rub:

Research conducted for this University shall be in harmony with the provisions set forth in the official research policies of the institution, or in memoranda of agreement entered into between the University and industries or other agencies.

We might note that research is not considered in the provision regarding the regulations of the university–and here, in the provision specific to research, we get a different citation, to the “official research policies of the institution” not to university regulations generally.

Research must be “in harmony with” “official research policies.” Not unofficial stuff, like the material posted at Penn State’s sponsored projects office web site, full of silliness and misrepresentation. Official stuff. Official research policies. We might ask whether an IP policy is an official research policy, especially when it has been removed from a “research” series of policies and given its own, distinct identification system. “In harmony,” too is not “shall comply with,” though the two phrases share some sense. The expectation, however, is that of “running parallel with” rather than “submitting to administrative requirements.”

We might ask whether an “official research policy” is compliant with academic freedom that declares that all research results that might be sold for profit (“potential commercial value”) are owned and controlled by the university, and that any effort by the inventor to resist such ownership or to influence for personal reasons any subsequent IP management by the university is a personal conflict of interest. We might answer that the academic freedom policy clearly takes precedence, and an assurance that faculty are free to publish means that no other university policy can take away that freedom merely because something to be published might have value as a patent monopoly.

The second part is somewhat easy–if the university contracts with sponsors, then faculty must follow the terms of those contracts. Nothing there, however, gives university administrators the right to impose restrictions on faculty and then contract with a sponsor to lock in those restrictions. Things go the other way–a sponsor requires provisions, and a faculty investigator accepts those provisions, and a university administrator has no reason to object to those provisions, and so a contract is drawn up. Of course, in a corrupt or inept university, things don’t work this way, but we ought to be allowed to aspire to competence and integrity, no?

In a public institution, conflict of interest does not have to do with a conflict between an individual’s interests and the institution’s interest, but with a conflict between the individual’s interests and the individual’s institutional duties. That is, the institution defines duties for an individual, and the question of conflict has to do with whether the individual can properly do those duties in the context of a personal “economic” interest that runs in conflict with those duties, or gives the appearance of running in conflict. The focus is the duties that one has, not what the institution generally wants for itself. A university might want to buy up real estate surrounding its campus so it can expand, but it is not a conflict of interest for faculty members to own property where the university wishes to expand, nor does such ownership conflict with their duties as faculty members. If an administrator leading the effort to purchase such real estate also owns property in an area targeted for purchase, then there is a conflict of interest that must be managed. The difference has to do with the duties an individual has, not whether an individual’s property stands in the way of a university objective.

We might then observe that the university has no business creating a policy that requires faculty to turn over their real estate to the university simply because administrators have decided the campus should expand. Policy or no policy, it’s nonsense. Even if a university used eminent domain to take faculty property, it would still owe those affected “just” compensation. It would not be a “duty” of a faculty member simply to turn over the property, nor would it be an “obligation” to the university for the faculty member to sell low or abandon the property.

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