U counsel's question to faculty causes a flap

An effort to revisit a U study that led to man's suicide in '04 ignites debate over academic freedom.

To the University of Minnesota's top lawyer, Mark Rotenberg, it was a reasonable question. To supporters of U bioethicist Carl Elliott, it was a veiled attempt to silence criticism.

Elliott's criticism of two Medical School professors has triggered an escalating debate in academic and legal circles. The latest flashpoint came when Rotenberg posed this question for faculty discussion:

"What is the faculty's collective role in addressing factually incorrect attacks on particular University faculty research activities?"

Elliott said the question was unfair because it implied inaccuracies, and intimidating because it came from the office that manages the legal force of the university.

Rotenberg said he never intended to threaten Elliott or any faculty member -- and that he drew up the question only because faculty requested his input.

As the fracas grows in faculty committees and on legal blogs, it offers a rare look into the tensions behind academic freedom.

The debate stems from issues surrounding the 2004 death of Dan Markingson -- a mentally ill patient who committed suicide while enrolled in a U study of anti-psychotic drugs.

Elliott wrote a hard-hitting story in the September/October issue of Mother Jones magazine noting that Dr. Stephen C. Olson, an associate professor in the U's psychiatry department, placed Markingson in the study after he landed at Fairview-University Medical Center as a delusional patient who had threatened to kill his mother.

Elliott questioned financial ties between the drugmaker and the researchers. He reported that the department had been struggling to recruit subjects for the study, funded by AstraZeneca, the maker of Seroquel, one of the study drugs. Most studies of anti-psychotic drugs bar researchers from recruiting patients at risk of violence or suicide, Elliott wrote. "Conveniently, however, the [AstraZeneca] study only prohibited patients at risk of suicide, not homicide,'' the story said.

His story noted that the head of psychiatry at the U, Dr. Charles Schulz, had consulting ties to AstraZeneca and a leadership role in the study.

It also quoted four experts who criticized the study as flawed, shallow and driven by marketing purposes.

"It is one thing to ask people to take risks for science, or the common good, or to help other people,'' Elliott wrote. "It is another thing entirely to ask them to risk their lives for the marketing goals of AstraZeneca.''

The Legislature has since adopted "Dan's Law,'' banning patients under civil commitments from being able to consent to medical research without the recommendation of the treating psychiatrist -- who must not be the psychiatrist conducting the drug trial.

When the Board of Regents declined to reopen the Markingson case, it noted that several agencies, including the Food and Drug Administration and the state attorney general's office, found no wrongdoing. Board Chairman Clyde Allen wrote that "at this time, we do not believe further University resources should be expended re-reviewing a matter such as this, which has already received such exhaustive analysis by independent authoritative bodies."

The FDA concluded that there was "no evidence of misconduct or significant violation of the protocol or regulations." The Minnesota Board of Medical Practice also cleared Olson and Schulz after reviewing allegations filed by Markingson's mother, Mary Weiss.

In February, the Faculty Consultative Committee asked Rotenberg to suggest questions for a discussion of issues raised by the Markingson case, e-mails show.

In his reply to the committee, Rotenberg proposed questions about the "risks and challenges posed by increasing reliance on corporate funding'' of university research, among other things. In fiscal 2010, business and industry sponsored $35.4 million in research spending at the U -- 5.4 percent of total research expenditures of $653.6 million.

'Factually incorrect attacks'

But it's his question about "factually incorrect attacks" that has gotten attention.

Rotenberg said that just as his prompt about corporate funding didn't imply that he opposes it, the question about faculty was open-ended. "It's very unreasonable and inaccurate to suggest that I have ever done anything to abridge or restrain Professor Elliott's exercise of freedom to criticize other faculty members," Rotenberg said.

Elliott said the question "tries to discredit my account of the study in which Dan Markingson died.''

Brian Leiter, a University of Chicago law professor and director of the Center for Law, Philosophy & Human Values, said Elliott's article was well within the bounds of fairness.

"He is an expert in this area,'' Leiter said. "It's not like some weird hoby of his.''

Rotenberg's question is out of sync with the moral obligation that universities have to foster and protect academic freedom, Leiter said. The general counsel's office should back faculty research into controversial matters, even when the inquiries allege university wrongdoing, he said.

'Cold climate' on campus?

Faculty leaders have tried to discuss Rotenberg's question broadly, rather than in the context of the Markingson case.

"The intent of the question has been misinterpreted," said Kathryn VandenBosch, chairwoman of the Faculty Consultative Committee. While the question's wording "could have used some editing'' because it speaks to an individual case, she said, it was meant to dig into a broader issue: "Whose responsibility is it to set the record straight?"

Last week the American Society for Bioethics and Humanities issued a statement noting that faculty discussion of Rotenberg's question has "given rise to the public perception that the University has attempted to squelch inquiry.'' Hilde Lindemann, a board member of the society, said the debate itself could create a cold climate for criticism of the university.

Prof. Karen Miksch, co-chairwoman of the U's Academic Freedom and Tenure Committee, said that since the group took up the question, "certainly we've been hearing some concerns" from faculty members worried about the general counsel's intent, she said.

"Myself, I'm always looking for ways for us to make sure we have a climate on campus where a variety of viewpoints can be expressed," she said. "So if people are feeling silenced, that in itself is worrisome."

Jenna Ross • 612-673-7168 • jross@startribune.com Tony Kennedy • 612-673-4213 • tonyk@startribune.com

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