Dealing with Unethical or Illegal Conduct in Higher Education

Investigations into cases of wrongdoing by professors are increasingly in the public eye. But are colleges and universities doing enough to deal with the problem?

By | November 1, 2017

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In 2013, Dong-Pyou Han, then an assistant professor of biomedical sciences at Iowa State University, resigned after admitting to tampering with experiments. He had spiked animals’ blood samples with human antibodies to make it appear as if an HIV vaccine he was helping to develop could successfully protect rabbits. After being charged by a federal prosecutor the following year, Han pled guilty to two felony charges of making false statements on a National Institutes of Health (NIH) grant application and follow-up progress report. He was sentenced to 57 months in prison and had to repay $7.2 million of the NIH grant that had been awarded to him for the research.

While other cases of fudging the data might result in a suspension of funds or mandatory supervision for some period of time, Han’s represents one of the most severe punishments meted out for scholarly malfeasance. Federal criminal charges for scientific misconduct are rare, as are criminal proceedings at any level against professors. Over the past few years, however, increasing media scrutiny, particularly of cases of scientific misconduct and of sexual harassment, has shined a spotlight on how universities handle faculty transgressions. And, at times, the publicity has revealed less-than-ideal responses to cases of alleged sexual harassment and of unethical or illegal conduct by faculty.

For example, in 2016 at the University of Rochester in New York, graduate students and current and former professors within the department of brain and cognitive sciences had filed complaints to university administrators, accusing professor Florian Jaeger of sexual harassment and intimidation. But the university cleared him of violating the school’s harassment and discrimination policy even after an appeal by several of the faculty members, and promoted him to full professor even while the internal investigation was ongoing. This September, the case was brought into the public eye by Mother Jones magazine after the accusers submitted formal complaints to the US Equal Employment Opportunity Commission (EEOC) at the end of August. Three weeks later, the university finally placed Jaeger on leave, and the Rochester president said he regretted promoting Jaeger.

This is but one example of cases of faculty wrongdoing that got swept under the rug by universities. In some instances, accusations are never properly explored. When complaints are investigated, the internal inquiries are typically conducted behind closed doors, where a committee of the accused’s colleagues, not quite impartial, listens to the case and makes a judgment.

“Academia is one of the last bastions where power imbalances spill over into the governance system, including faculty disciplinary committees that are charged with objectively judging their peers,” says a former university administrator who asked to remain anonymous because of involvement in an ongoing university gender discrimination case. As a result, justice is not always served.

How to fire a professor

When a formal complaint of harassment or another transgression is filed within a university, administrators decide whether it is substantial enough to warrant review by a faculty committee, which hears the evidence and rules on whether there was misconduct (and sometimes recommends specific sanctions). Following the committee’s decision, the case goes to the desk of a university provost or president for a final decision. For a tenured professor whose misconduct may be grounds for revoking tenure, there is often an additional hurdle to clear before disciplinary action can be taken.

“A tenured professor has to go through academic review boards to be ousted. Regardless of what the allegations are, the university has obligations to go through that process before pulling someone’s tenure,” says Sharon Vinick, a plaintiffs’ employment lawyer in California who has represented many women who have brought claims of sexual harassment or discrimination within colleges and universities. “There is a heightened scrutiny compared to your typical private employer.” W. Scott Lewis, a partner at the Pennsylvania-based National Center for Higher Education Risk Management (NCHERM) group, agrees: “The additional layer for tenured faculty to be removed can be a difficult and arduous process.” Sometimes, the layers of bureaucracy can stand in the way of efficient disciplinary action. But there are also more egregious cases of universities choosing to go easy on tenured faculty.

Geoffrey Marcy, a former University of California (UC), Berkeley, astronomy professor, was found to have sexually harassed multiple students over the span of a decade. Although the university’s own internal proceedings took place in 2015, Marcy was not penalized until the records were published by BuzzFeed later that year. At that point, Marcy received only a mild reprimand by the vice provost of Berkeley’s faculty, involving an agreement that held Marcy to “clear expectations” regarding his future interactions with students; otherwise he could get suspended or fired. It was only after subsequent public outrage—including a letter to The New York Times penned by 278 of Marcy’s peers, who expressed concern that Marcy had been portrayed in too positive a light—that Marcy resigned. In another instance, the University of Southern California (USC) reportedly sat on complaints of Keck School of Medicine Dean Carmen Puliafito’s illegal drug use and mistreatment of colleagues for at least a year before news reports about the accusations forced his resignation.

Part of the reason why universities are not eager to remove high-ranking professors has to do with maintaining the ability of their faculty to secure grants. “The first thought is always to protect the brand,” says Arthur Caplan, a professor of ethics and bioethics at the New York University’s Langone Medical Center. “As federal and state dollars dry up and grant money slows, schools need to and strive to protect and enhance their reputations, making the management of misbehaving and exploitative faculty members sensitive to the financial woes of institutions.”

William Kidder, a research associate at the Civil Rights Project and himself a university administrator, emphasizes that tenure has a valuable role in protecting academic freedom. But there should be no distinctions between how tenured versus nontenured faculty are treated when someone complains about their behavior, he says. “The same standards should apply whether it’s to a rock star professor or a first-year assistant professor.” Indeed, most state laws, university faculty contracts, and university or college faculty handbooks contain a clause that lists fraud, misrepresentation, plagiarism, and moral turpitude as justifiable reasons for termination, regardless of tenure status.

“The bottom line,” says Caplan, “is that even if professors are serving noble goals like fighting cancer, we still have to be tough” when it comes to disciplining misconduct.

Jumping ship

Even if universities choose to dismiss a faculty member following some transgression, all too often the allegations and proceedings remain confidential. For example, the Title IX law passed in 1972 requires that each institution keep a private record of all gender-bias allegations and cases, but only the statistics from each university are publicly available, while individual cases are typically not shared. This raises the risk that the inappropriate actions will continue at another institution.

“I’ve been involved in instances of professors sleeping with undergraduate students, throwing their names on academic publications that they didn’t write, and had illegitimate personal budget expenses, and nothing happened to them,” Caplan tells The Scientist. “They got passed along, hired by other institutions and repeated the behavior.”

This phenomenon of faculty sexual harassers moving from one college campus to another is what Kidder calls “pass the harasser.” “In the current environment of expensive litigation and very long time periods to complete a full faculty disciplinary process, an individual campus may accurately conclude that a confidential separation agreement with the professor is in the best interest of the college,” says Kidder. Yet that decision may not be aligned with the collective good of the academic community, he adds, especially if the faculty member gets a job at another campus that does not know about the prior misconduct.

Failing to keep records of allegations, or keeping them locked up and secret, is wrong, agrees Vinick. “Schools cannot take a position on the case if it is unresolved, but the administrators could disclose the facts of the complaint, and they could certainly disclose when there have been multiple complaints against a faculty member,” she says. “By not doing that, institutions allow these professors to move from one institution to another and their careers are no worse for it.”

And even if there is disclosure that a prospective faculty member has been found to have violated a university policy, a new school may also be “willing to gamble to get a high-visibility faculty member despite being warned about his or her irresponsible behavior,” says Caplan. One prominent example is that of Thomas Pogge, professor of philosophy and ethics at Yale, who has had several complaints of sexual harassment against him both at Yale and at his prior institution, Columbia University. “I think investigators with lots of grants or who bring fame and visibility can slither their way through the current system,” Caplan says.

Addressing the problem

To avoid bringing on faculty with a track record of wrongdoing, universities have begun to more thoroughly screen prospective hires. Although formal background checks of criminal and public records are still relatively uncommon for all but the higher echelons of schools’ administrative positions, more schools are beginning to require them for all levels, says Terry Leap, a professor in the department of management at the University of Tennessee who studies white-collar crime.

The chance that a prospective faculty member is found to have a criminal record is minuscule, however. “Doing a formal background check of public records basically shows that the school made a good effort that could later negate the chances that someone files a hiring suit against the university. But the background check itself is not likely to uncover anything,” says Leap. In fact, since 2004, the American Association of University Professors has recommended that criminal background checks not be performed for all new hires, arguing that such intrusive measures are “out of proportion to the actual problems facing the academy.”

More telling of a professor’s character may be the letters of recommendation from colleagues, though this requires reading between the lines, says Caplan. There is a practice of not writing anything negative, he explains, but letters that are only lukewarm hint at hidden issues. Going forward, this is a practice Caplan would like to see change. “I think this culture of only orally communicating negative comments but not in letters is wrong, and frankly, unprofessional, because the letters are confidential and we want individuals who are well-vetted.”

I think investigators with lots of grants or who bring fame and visibility can slither their way through the current system.—Arthur Caplan, New York Universi­ty

When it comes to sexual harassment, schools have also stepped up their game, with many adopting a zero-tolerance policy. “In recent years, sexual harassment complaints are a hot-button item, which institutions of higher learning are acting swiftly and decisively to eliminate,” says Leap. “The adverse media publicity and potential monetary liability pose too great a risk to simply sweep the matter under the rug.”

Still, Leap acknowledges that the term “zero tolerance” is usually poorly defined. “It can’t be a ‘no questions asked’—you’re expelled if accused—because that is unfair and too harsh,” he says. “What it actually means in most cases is that the university takes acts of sexual harassment seriously, and the institution will take immediate and decisive action to investigate, adjudicate, and punish offenders.” In addition, faculty found guilty of sexual harassment are often required to undergo training on how to interact with students, says Michael Olivas of the University of Houston Law Center.

Some institutions are taking strides to prevent such incidents in the first place. At the University of California, Berkeley, for example, new university-wide procedures outline how to handle alleged sexual misconduct by faculty and staff. Harassment seminars are another option, and Lewis says his trainings are now frequently requested by faculty. “To me, that is a canary in the coal mine of how faculty and campuses are feeling about these issues,” he says. “This is not the administrators thrusting this training upon their faculty—this is the faculty asking for the training—which shows the faculty are interested, and that is a changing tide.”

Meanwhile, to curb scientific misconduct, earlier this year the National Academies of Science, Engineering, and Medicine committee on research integrity recommended the formation of an independent, nonprofit advisory board to evaluate potential foul play in the lab, so that universities aren’t left to internally handle accusations against faculty. But there’s a long way to go on this front, says Caplan. “[The scientific research community] has not yet found effective programs to teach research integrity and how to avoid misconduct despite the realization that these are growing threats to the integrity of medicine, science, the social sciences, and the humanities.” 

Correction (November 6): The original version of this story misidentified the National Academies of Science, Engineering, and Medicine as the National Academies of Science, Engineering, and Math. The Scientist regrets the error.

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Avatar of: FJScientist

FJScientist

Posts: 28

November 1, 2017

The NAS recommendation for some non-internal body to conduct inquiries into allegations of scientific misconduct may have some merit. That depends upon whether the 'failure rate' in properly assigning scientific misconduct is actually improved through a non-internal board.

There are costs to any investigation. Non-local, investigation requires travel by the investigatory body and likely has a higher total cost (albeit the cost to the University itself may be less if handled by a separately-funded outside body). More difficult to evaluate are the costs to science if misconduct is less apt to be uncovered by internal bodies .

But before blindly going to a non-internal process, do we first need some data to help establish the best way to handle the problem? Are there any ongoing pilot programs to compare the efficacy and costs of local and non-local evaluation or some hybrid of the that? If there is no pilot data available, should there be?

Avatar of: Wombat

Wombat

Posts: 1

November 6, 2017

This is a way oversimplified account of things. It is Trump-like in that it cites a few examples, the same examples EVERY other reporter cites. No data on actual incidence of incidents. Again sort of like Trump on Mexicans. And quoting a few people whoser careers focus on dealing with, if not actually maintaining, the problems?  Sort of like quoting the border control on the immigration issue.

And only one mention of Title IX? And that just for record keeping? Really? Title IX has been a rather big deal recently, it's even been in the newspapers. Try doing your homework next time.

Avatar of: Pyshnov

Pyshnov

Posts: 5

November 13, 2017

The proposed here measures were proposed before. They are either impossible to implement or ineffective. It is also not productive to blame it on the secrecy in universities.

The secrecy can be blown in a second by science journalists if they publish ALLEGATIONS of wrongdoing. This is what media is doing since times immemorial, practically every day: publishing allegations and the evidence of wrongdoing in industry, government, etc. Yet, the science journalists who are often perfectly qualified to investigate the allegations, do nothing.

And now, please see the most revealing exchange of letters I had with Nature:

http://www.universitytorontofraud.com/nature.html

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