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CAUT Bulletin Archives

September 1999

Academic Freedom Questioned in the David Kern Affair

"The freedom to pursue research and the correlative right to transmit the fruits of inquiry to the wider community -- without limitations from corporate or political interests and without prior restraint or fear of subsequent punishment -- are essential to the advancement of knowledge. Accordingly, principles of academic freedom allow professors to publish research findings that may offend the commercial sponsors of the research, potential donors, or political interests ..."1

The June issue of the Bulletin published the story of David Kern and his pending dismissal from Memorial Hospital, a Brown University-affiliate. Many in the academic community believe Dr. Kern's contract was not renewed as a result of research findings he presented to a medical conference against the wishes of his employer. CAUT urged readers to write to the new president at Brown University, Dr. Gordon Gee, asking him to reverse the termination of Kern's contract. Reprinted below is a copy of a letter sent by Professor Andy Liu, CCAE/CASE 1998 Canadian University Professor of the Year, asking President Gee to choose the defence of academic freedom to the bureaucratically safe policy of risk-aversion. President Gee's reply follows.

Was Brown University Derelict in Duty ...

"President Gordon Gee -- You have come to the office of the president at a crucial time. The reputation of Brown University is severely tarnished by its treatment of Dr. David Kern and you must act immediately to defend academic freedom.

"I was flabbergasted at the report of the committee of inquiry convened to hear the appeal of Dr. Kern in his dispute with Microfibres Inc. Although the committee found Dr. Kern's academic freedom had indeed been violated, it concluded the company's motive was merely "to avoid bad publicity and to protect its economic position." I am sure former U.S. President Richard Nixon would have dearly loved to see Watergate hushed up, because it gave him a lot of bad publicity and adversely affected his position, economic and otherwise.

"The motive of Microfibres was understandable, but why did it not see that its heavy-handed approach could only bring about the opposite result? Trying to silence people is extremely short-sighted and will not work, as history has taught us time and again.

"Your former administration's "risk-averse stance" was equally amazing and far more alarming. It abdicated its responsibility of upholding the integrity of your institution. That committee was convened to dismiss Dr. Kern's appeal, not to inquire about its circumstances.

"This case can be productively reopened. It is not too late for Microfibres to realize that having health risks at the worksite is not itself an issue. In fact, it is almost unavoidable. The issue is how the company deals with the situation. It must cooperate, in good faith, with Dr. Kern and Brown University to study "flock worker's lung" and try to solve the problem. Its effort will then be applauded. I am sure the findings will have broader implications industry wide. When these are reported in important conferences, it can only add to the prestige of all concerned parties.

"Please put your stamp on the new administration by doing something which is good for Microfibres, good for Brown University, good for Dr. Kern, and above all, good for academic freedom and the integrity of our institutions."

... Or Staunch Defender of the Faith

"Professor Andy Liu -- As you may not know, the differences between Dr. Kern and his employer, Memorial Hospital, occurred more than a year before I arrived at Brown University. I have, however, thoroughly reviewed the substantial written record, including information provided by Dr. Kern, faculty, administrators and Memorial Hospital. Above all, I am impressed with the complexities of the issues involved and by the high degree of misinformation surrounding the case -- misinformation, it appears to me, that persists today.

"I wish to make two points at the outset. First, I want you to know that Brown University's commitment to academic freedom, including the right to publish results of research and other scholarly work, is absolute and unwavering. The full and free exchange of ideas must be the lifeblood of any serious enterprise; and it will continue to be so at Brown.

"Second, I believe it is impossible to understand the Kern case unless the institutional relationships are clear. Dr. Kern was and is an employee of Memorial Hospital, a Brown University-affiliated independent hospital, where he directed the Occupational Health Service. As I understand it, the work Dr. Kern performed for Microfibres Inc. was a fee-for-service arrangement between Memorial Hospital and Microfibres. Brown University was not a party to any agreement and was not consulted before Dr. Kern signed the confidentiality agreement that would later prove so troublesome.

"While I thank you for expressing your concern about Dr. Kern's case, I do not entirely share the belief that Dr. Kern's contract was terminated as a consequence of exercising his right to academic freedom. The written materials I have reviewed in the case paint a very complex and confusing picture, but it is clear the hospital had notified Dr. Kern earlier of its concern that the Occupational Health Service was failing to sustain itself financially. Memorial Hospital had made at least one earlier attempt to offer Dr. Kern an alternative position in another of the hospital's programs.

"Late in 1996, when the School of Medicine received notice of Memorial Hospital's decision not to continue the Occupational Health Service, the university took steps to support Dr. Kern. (I note, parenthetically, that by the time the university became involved in the case, the arrangement between Memorial Hospital and Microfibres had ended and relations between Dr. Kern and his employer were strained.)

"Dean of Medicine & Biological Sciences Donald Marsh, Provost James Pomerantz and ultimately President Vartan Gregorian met with hospital administrators and faculty. Although Memorial Hospital remained firm in its decision not to continue the Occupational Health Service and not to offer Dr. Kern a new five-year contract, it agreed to continued support and technical assistance for the service during the two years remaining in Dr. Kern's contract.

"The dean of medicine and the provost supported Dr. Kern's right to make his finding public, and Dr. Kern did indeed present his research at the American Thoracic Society in May 1997 and published his findings in Morbidity and Mortality Weekly Reports and the Annals of Internal Medicine.

"At President Gregorian's urging, Memorial Hospital offered to underwrite Dr. Kern's salary for two years at any other health organization that would continue occupational health and safety work. If Dr. Kern did not accept employment elsewhere by June 30, 1999, Memorial Hospital agreed to extend his employment one year beyond the terminal year of his contract.

"It is my understanding that Dr. Kern has been offered full-time employment with another university in this area, which has an occupational health and safety program, but has accepted only a part-time arrangement. Under the extension arrangement, he is entitled to remain at Memorial Hospital until June 2000.

"I am deeply concerned that media reports about Dr. Kern's case continue to contain so much misinformation. Stories about Dr. Kern's "firing" by Brown are unfair and untrue on their face. Indeed, someone recently led a UPI reporter to believe that Dr. Kern had been in a tenured position at Brown. Even the old canard about Brown fearing to offend a significant donor appears to have been revived. The circulation of misinformation is simply shameful.

"Academic freedom is a bedrock principle for Brown, and our university will continue to support its faculty in that regard, including our faculty based in hospitals. Although I am confident that the university's efforts had a positive impact on Dr. Kern's situation, I do not see a productive way in which the case can be reopened. While I regret that a more satisfactory result could not be obtained, I believe the consequent campus discussion of the rights, privileges and responsibilities that attend membership in an academic community has been beneficial.

"Please be assured that I will be at the forefront of efforts to ensure academic freedom at Brown University."

1 Excerpt from AAUP policy statement on Academic Freedom in the Medical School.