June 2004
Research “Strings”: Their Nature, Scope, and Impact
Research is a vital component of the overall mission of the University of California. In a 1970 Resolution on Research, the Regents acknowledged the importance of research and its role in the teaching and public service missions of the University. The resolution asserts that h performed by UC faculty is “an indispensable part of the educational process” and makes a "vital contribution to the defense of the United States; the social and community needs of the State of California, and its people; and the health and well being of all mankind." Increasingly, however, UC and other institutions are being faced with research funding requirements and restrictions that could compromise the research mission of the University. In response to concerns about sponsored project award terms that arose during the Academic Senate’s examination of issues with contracts and grants containing SUTI language and bans on tobacco funding, the Academic Council issued a charge to the University Committee on Research Policy (UCORP) to broadly review research-funding policies at UC.
Types of Restrictions and Requirements
In response to this charge, UCORP has been identifying restrictions and requirements occurring in contracts and grants for research, as well as the various policies and regulations that are currently used to guide the University’s decisions to accept or reject these “strings.” These terms have appeared in every stage of the sponsored project awards process, from language in the Requests for Proposals and proposal application forms, to clauses in the award documents. A few of the most common types of funding provisions being imposed by sponsors are restrictions and requirements on the conduct of research, the ownership and publication rights of research results, and the conduct and activities of the institution.
Conduct of Research
Citizenship restrictions, background check requirements, and conditions permitting the sponsor’s approval of research staff are examples of sponsor-imposed provisions on the conduct of research that are becoming more common. There are, however, a number of consequences for allowing these criteria to be used to restrict participation in research projects. Limiting participants in a project based on factors other than their research abilities can undermine research excellence. In 1988 the Council of Chancellors sustained the following rationale for opposing citizenship requirements: “It is expected that University researchers will be selected for participation on projects on the basis of merit and ability to contribute to the research project…To allow an external sponsor to dictate irrelevant criteria, such as the requirement that employees be U.S. citizens, which are unrelated to research objectives, interferes with the quality of research” (C&G Operation Guidance Memo No. 90-3). Besides this basic principle that research abilities should be the determining factor for selecting an individual to participate in a project, it is also a violation of federal and state laws, as is outlined in UC’s Nondiscrimination and Affirmative Action Policy Regarding Academic and Staff Employment, to engage in discrimination against any person on the basis of race, national origin, citizenship, or a variety of other personal factors.
There are additional legal liabilities for releasing citizenship and other personal information to a research sponsor. Many sponsors may not realize that it is a violation of UC policy and federal and state laws and regulations for the University to release citizenship, nationality or country of origin information to any entity other than the U.S. Citizenship and Immigration Services (formerly the INS), the Department of Labor, or except when required by law. UC’s newly published Contract and Grant Operating Guidance Memo No. 04-02 outlines these applicable laws and policies and provides guidelines for how to respond to sponsor requests for citizenship information. Requirements for background checks also involve the release of personal information (e.g., birth date, citizenship, home address, social security number, income tax withholding) that is protected under the Federal Privacy Act and the California Information Practices Act. As outlined in UC Business and Finance Bulletin RMP-8, Legal Requirements on Privacy of and Access to Information, the University cannot disclose any personal information “in a manner that would link the information disclosed to the individual to whom it pertains” unless it meets the conditions of disclosure under the state and federal laws.
Research Results
Accepting controls on the University’s ownership of and right to publish research results grants a sponsor the ability to interfere with the University’s fundamental mission “to discover knowledge and to disseminate it to its students and to society at large” (APM 010). The experience of one faculty member, UCSF Professor Betty Dong, illustrates the complications that can arise from accepting publication restrictions. In 1988 a pharmaceutical company offered to sponsor a research project in which Dong would compare generic thyroid medications to the company’s brand name counterpart. The contract agreed to by the University allowed the company to authorize publication of the research results. Dong’s subsequent research findings indicated that the generic drugs were bioequivalent and could be substituted for the brand name drug, a result that was potentially unprofitable for the company. For six years the sponsor blocked any efforts by Dong to publish the study until finally, under pressure from the Food and Drug Administration and others, the sponsor agreed to allow publication of the research findings. As a result of Dong’s publication ordeal, State Senator Quentin Kopp sponsored Senate Concurrent Resolution (SCR) No. 66, which was adopted by the legislature in 1996 and calls on California’s colleges and universities to refuse “gag” clauses in postsecondary academic research.
As documented in a recent report of a joint Association of American Universities (AAU) and Council on Governmental Relations (COGR) task force, federal agencies are increasingly including controls on the dissemination of research results in their sponsored contracts and grants. These terms are contrary to various federal policies on “fundamental research.” National Security Decision Directive 189 (NSDD 189) prohibits federal agencies from posing restrictions on the conduct of, or reporting of the results from unclassified fundamental research. Projects that allow publication restrictions, whether sponsored by the government or industry, are also excluded from the safe harbor provision for fundamental research under federal export control regulations, and therefore a researcher could be required to obtain an export license before sharing “technical data” with a foreign national, either inside or outside of the U.S. Violation of these export control regulations can result in serious civil and criminal penalties for the researcher and the University.
Conduct and Activities of the Institution
Foundations and corporate sponsors are increasingly seeking to influence the conduct and activities of the institutions and researchers they sponsor. One way in which this can occur is by allowing a sponsor to prohibit the University and its scholars from receiving funds from other sources. For example, a sponsored research contract may include a clause that constrains the principle investigator from receiving funding from other sponsors to conduct similar research. Similarly, provisions in a sponsored research award may restrict the grantee organization, including all of its researchers, from accepting funding from sources in conflict with the sponsor’s objectives (e.g., award clauses from anti-tobacco foundations that restrict the institution from accepting funding from tobacco-related companies). These provisions impede academic freedom by effectively limiting a researcher’s ability to seek various avenues of funding and pursue certain research topics.
Other sponsor-imposed conditions go beyond simply restricting an institution’s or investigator’s ability to pursue certain funding sources, but instead seeks to limit the behavior of the institution and its affiliations with entities or individuals that engage in certain types of activities. Recently the Ford Foundation added new language to their standard grant agreement that states, “By countersigning this grant letter, you agree that your organization will not promote or engage in violence, terrorism, bigotry or the destruction of any state, nor will it make sub-grants to any entity that engages in these activities.” According to the memorandum from the Ford Foundation explaining this new grant policy, “This prohibition applies to all of the organization’s funds, not just those provided through a grant from Ford.” A similar clause from the Rockefeller Foundation states that grant recipients must not “directly or indirectly engage in, promote or support other organizations or individuals who engage in or promote terrorist activity.” Sponsor-imposed conditions such as these can interfere with the University’s commitment to uphold and preserve the principles of academic freedom, which include “freedom of inquiry and research, freedom of teaching, and freedom of expression and publication.”
National Responses
The UC Academic Senate is not alone in its efforts to examine and respond to concerns about research funding “strings.” In response to the new anti-terrorism clauses that were added to the Ford and Rockefeller Foundation standard grant agreements, the provosts of nine universities – Chicago, Columbia, Cornell, Harvard, MIT, Pennsylvania, Princeton, Stanford and Yale – recently cosigned letters to both organizations to challenge these new policies. The letters expressed concerns that the new anti-terrorism policies would infringe upon academic freedom and, because of their vagueness, could be interpreted broadly to include political or cultural activities on the campuses, such as partisan lectures or exhibits. In 2002, an MIT ad hoc Faculty Committee on Access to and Disclosure of Scientific Information, led by former Air Force Secretary and Professor Sheila Widnall, issued a widely distributed report “In the Public Interest.” Concerns about restrictions on the conduct and results of research prompted the Presidents of the National Academies to issue a joint statement citing the need for “an appropriate balance between scientific openness and restrictions.” Similar concerns also lead the House Committee on Science to convene a hearing, at which Provost (then Chancellor) M.R.C. Greenwood testified, on “Conducting Research During the War on Terrorism: Balancing Openness and Security.” Recently a joint AAU and COGR Task Force on Restrictions on Research Awards and Troublesome Research Clauses transmitted its final report and recommendations to John Marburger, Director of the Office of Science and Technology Policy (OSTP). This task force identified troublesome research clauses through solicitation of examples from 20 public and private institutions, which included UC Berkeley and UC San Diego. COGR, in conjunction with MIT, is also currently maintaining a list of contract clauses reported by universities that contain restrictions on information release and foreign nationals.
UC Policy
University policy currently prohibits the acceptance of research contracts that contain these and other types of “strings.” In addition to the policies outlined in the previous sections, another factor driving the University’s decision to decline restrictive contract terms is that funds for sponsored projects or programs are awarded to the corporation known as “The Regents of the University of California,” not the individual researcher, and therefore any commitments accepted under awards are the commitments of the corporation (C&G Manual 13-200). UC’s research administration officers invest a considerable amount of time negotiating problematic language out of award agreements – a process that can create significant time delays for a research project. These efforts to negotiate acceptable award language have generally been successful; however, when a resolution cannot be reached, the University has chosen to walk away from the contract. Recently one UC campus declined two awards totaling nearly $500,000 after two months of unsuccessful negotiations with the corporate sponsor to eliminate publication and citizenship restrictions from the contract terms. Since problematic language often does not emerge until the award is offered, faculty are encouraged to inquire before submitting a grant proposal about the probability of these “strings” being included in the research contract.
UCORP’s Report
Sponsor-imposed “strings” on the conduct of research, the ownership and publication rights of research results, and the conduct and activities of the institution are only a few categories of restrictions and requirements on research funding currently being studied by UCORP. “Strings” are not solely a sponsor-imposed phenomenon, but may also be mandated by law or University policy. UCORP is continuing to examine these and other research “strings” and intends to issue a final report to the Academic Council in July.
Acknowledgement
Thanks are due to Professor Janis Ingham, UCORP Chair, and Professor Steve Thorsett, Chair of the UCORP subcommittee on research “strings,” for their contributions to this report.
-Kimberly Peterson