Human Subject Protection, Academic Freedom 
and the First Amendment: Can't We Have It All?

Symposium at the American Psychological Association Convention, 
San Francisco, August 19, 2007.

      Participants:
	- Michael Birnbaum, California State U. - Fullerton
	- Richard O’Brien and Kurt Salzinger, Hofstra U.
	- John Furedy, U. Toronto

      Chair: John Mueller, U. Calgary

John H. Mueller, PhD
University of Calgary, Calgary, AB, Canada 
mueller@ucalgary.ca

     Introduction to symposium 

For 60 years the role of Division One has been to identify pervasive topics and issues that transcend specialties. Today it is hard to identify an issue that has broader impact than the ever-expanding presence of Institutional Review Boards (IRBs). At their outset some 30 years ago, research ethics committees had the mandate to decide whether the public is at more than everyday risk from your project, and it was understood that this would be a rare event in psychological research. However, the domain of such reviews has expanded greatly, with little evidence of need or effectiveness. Furthermore, forums to meaningfully discuss concerns with this enterprise are very limited, compared to the ubiquitous and increasingly obligatory workshops that focus entirely on how to comply with the progressively more complex regulations.  

Psychology, and other disciplines, seem to have essentially endorsed the ideological position that research ethics committees trump all other concerns, thus sacrificing academic freedom and other principles such as freedom of speech and association for academics. This seems a precarious position for any scientific discipline, particularly one that depends upon sound research to develop public policy as well as theoretical understanding. 

Our symposium brings together presenters to comment on the damages that have arisen from uncritical compliance with IRBs.  We feel that it is time to reject the claim that researchers are to blame for problems with IRBs. Instead it is the ethics enterprise itself that must be the focus of examination, and with the tools appropriate to any research enterprise, specifically empirical evidence as opposed to legal and philosophical creations. Only in this way can we be sure that research subjects are really safer with IRBs than without IRBs.

 Michael H. Birnbaum, PhD
California State University, Fullerton, CA 
mbirnbaum@fullerton.edu

Title:   When is ethical review itself unethical?

The IRB policies of many universities, when applied to psychology and other "harmless" fields of research, have caused more harm to society than good. Compared to other activities, like driving to work or visiting a hospital, psychological studies have caused very little harm.  Very few people are killed or injured in psychology studies, and there are very few claims of damage. Yet, many students and professors spend a good deal of time in paper work that yields no benefit to society. 

Some IRBs have declared themselves censorship boards, and in order to "protect" other people, have acted in a way that can only be described as civil rights violations. I will tell several anecdotes of actions by IRBs: the researcher who was ordered not to study "pain" but who was allowed to study "discomfort;" the man who was ordered to drive sixty miles in traffic in order to sign his IRB application in a color other than black; the woman who sued her university for sex discrimination when an IRB treated her the same way as that man; finally, the man who was ordered not to speak to his wife. 

The theme of this analysis is to ask the question, "When is ethical review itself unethical?"

John J. Furedy, PhD
University of Toronto, Toronto, ON, Canada
furedy@psych.utoronto.ca

Title:   IRBs as bioethical industrial waste for both research and society

The concept of disinterested, scientific inquiry that is concerned with the search for truth (which is also the main purpose of a university, and hence the main reason for the protection by the university of the academic freedom of both students and faculty), rather than conformity with some ideology or being subordinate to current practical needs, began with the pre-Socratics. Later, Socrates, in opposition to the Sophists' approach, introduced the need for clearly defining one's terms. The Aristotelean taxonomic orderliness, which is the characteristic of all genuine sciences, is a critical part of the Socratic tradition to inquiry,

I shall argue that the IRBs that were introduced in human psychological research during the last two decades are squarely in the Sophistic, post-modern, anti-inquiry tradition. Their implementation is taxonomically chaotic (as I suggested in a 2004 APA symposium), and is deleterious for both the conduct and teaching of research. 

Psychology is particularly vulnerable to this form of Sophism, because its status as a genuine science is more questionable than of a harder science like chemistry or physiology. The taxonomic chaos also diminishes genuinely ethical behavior by researchers who learn to deceive IRBs rather than being concerned with the actual safety (but not self esteem) of their subjects (but not research participants - these are confined to intellectual collaborators in the research). 

Finally, viewed as citizens, researchers, in giving up their academic freedom and their First Amendment rights, move society toward the fear end of what Sharansky recently referred to as the free-fear societies continuum.  Accordingly, the "industrial waste" metaphor applies with one exception: most industries produce some benefits and this production is subject to a cost/benefits analysis, whereas so far there is no systematic evidence to indicate that IRBs produce any benefit.

Richard M. O'Brien, PhD, and Kurt Salzinger, PhD
Hofstra University, Hempstead, NY
crash61@optonline.net

Title:  IRB Prior Approval: Unnecessary, Counterproductive and Antithetical 
          to Academic Freedom

In response to abuses in government medical research a half century ago, the Belmont Commission was formed to develop guidelines for ethical research. The Belmont Report included recommendations on how to protect subjects and facilitate research. The authors of the Belmont Report endorsed the dual goal of limiting harm to today's citizens without obstructing the research that would benefit the citizens of tomorrow.

These goals were laudatory. The way they have been implemented is a violation of the very report on which they are based. Chief among the problems in execution is the micromanagement of research by government mandated institutional review boards (IRBs). These boards operate with unlimited arbitrary authority and no accountability for the outcome of their decisions. 

The Constitution of the United Sates places restrictions on the actions of government. Even when the end may be quite desirable, there are legal limits as to what means may be used to achieve that end. Hamburger has forcefully argued that the actions of IRBs violate the first amendment to the Federal Constitution. Similarly, the Supreme Court has ruled that academic freedom is a critical value related to freedom of speech as defined in the Bill of Rights. The American Association of University Professors has cited prior review of research by IRBs as a threat to academic freedom. Further, a recent University of Illinois white paper on "mission creep" expressed growing concern about the breadth and unfettered actions of these boards. 

There seems to be momentum building against the IRB/censorship based model of "protecting" human subjects. Fortunately, there is no real conflict between academic freedom and human subject protection although academic freedom and prior review by institutional review boards may be mutually incompatible. We have to find a better approach to achieve the goals of the Belmont Commission.