The Threat to Academic Freedom on Campus

Columbia Law School Professor Philip Hamburger Warns Institutional Review Boards Stifle Important Research, Violate the First Amendment

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New York, November 24, 2009 -- Chances are you never heard of the Institutional Review Boards that approve many research projects on college campuses. Many professors do know them, but wish they never had.
IRBs were created to approve and oversee research involving human subjects. But boards set up with a “sensible goal” to protect against dangerous experiments have turned into “censorship committees” that trample on free speech, said Philip Hamburger, the Maurice and Hilda Friedman Professor of Law.
“These are committees that have been given the power to bar inquiry and to bar publication, and they do it on a massive scale,” Hamburger said during a panel discussion on academic freedom at the Heyman Center for the Humanities at Columbia University. “It’s probably the most widespread violation of the First Amendment in our nation’s history.”
Hamburger has extensively studied the boards, which were set up under federal law in their current form in the 1970s. He noted their origin may have stemmed from concerns over medical studies, but have since morphed to also cover the social sciences. So, even an opinion poll or an oral history project may require approval and be subject to change by one of the 4,000-plus IRBs on campuses and research centers.
Even in medical research, Hamburger believes they are dangerous because they stifle knowledge that would otherwise save lives.
“Of course, the chief concern that academics conform is because they want to publish,” Hamburger said. “If you do not conform to the IRB, you will have a hard time doing future research.”
Hamburger said the IRBs are akin to the Star Chamber in 17th Century England, which required a person to get a license before a book or pamphlet could be published. Such licensing, he added, is banned under the First Amendment but has essentially gone unchallenged when done by IRBs.
“We have to comply or else we can be fired,” Hamburger said.
Some critics have argued that IRBs are not covered by the First Amendment because they target research. However, Hamburger noted that federal regulations define “research” in terms of an attempt to publish or acquire publishable knowledge and thus limit freedom of speech and press, and also discriminate on the basis of content.
Moreover, the threat of lawsuits by research subjects – either perceived or real – has resulted in an “extraordinarily defensive posture” that has made universities “totally risk-averse,” said Jonathan Cole, the John Mitchell Mason Professor of the University and former Columbia University Provost.
“The consequences have been to create these huge bureaucracies, very costly ones and also cut off research that often could be very beneficial to the public,” said Cole, who moderated the panel.
One axiom of academia has been publish or perish. As Hamburger sees it, if IRBs remain unchecked, the latter is all but assured when the former is not allowed to happen.
“The real danger we face is censorship, when academics are denied the same freedom other people have to do ordinary talking,” Hamburger said. “This is a disaster, not only for academics, but for the whole nation.”
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