The University Record, April 26, 1993

Priorities in policing science need to be evaluated, Hopkins’ counsel says

By Mary Jo Frank

The public may overlook the moral transgressions of movie stars and other public figures, but woe to the scientist who betrays the trust upon which his colleagues rely.

“A prominent scientist brought down makes good press,” said Estelle A. Fishbein at her April 14 lecture “Priorities in Policing Integrity,” which was part of Sigma Xi’s Ethics and Science Lecture Series.

Fishbein, vice president and general counsel for the Johns Hopkins University, said there is no doubt that the public trust in science and in scientists has deteriorated in the past 25 years as a result of science’s widely reported scandals.

Initially, academic institutions were not well prepared or equipped to resolve accusations of fraudulent behavior in research, according to Fishbein, past president of the National Association of College and University Attorneys.

“Nevertheless, I believe that the record of our universities in pursuing accusations of scientific misconduct compares most favorably with that of the federal agencies that have entered the business of policing science,” Fishbein said.

Universities have earned and deserve the confidence of the public and the government as they attack this extraordinarily difficult and sensitive problem, she added.

“What we need do now is examine our priorities in policing science to make sure that the zeal for uncovering fraud does not leave a trail of unintended victims and stifle the appetite for non-conformist inquiry.”

Referring to federal initiatives to deal with allegations of scientific fraud, Fishbein said that every lawyer who has handled a discrimination case filed with a federal agency knows that the tendency of any governmental enforcement agency is to shelve a case to avoid a conclusion rather than make a finding in behalf of the accused.

“My further concern that fairness to the accused is less a priority to government enforcers than it should be, arises from the publication on June 12, 1992, of a Notice of Proposed Rulemaking in the Federal Register announcing the intent of the Public Health Service (PHS) to exempt a new system of records related to inquiries and investigations of scientific misconduct from certain requirements of the Privacy Act,” Fishbein said.

The government’s purpose, she explained, is to enable the PHS to withhold from a scientist accused of scientific misconduct the identity of informants and letters or other documents that make the accusation of misconduct—eroding the protections intended by the Privacy Act.

“The potential for abuse is great since government investigators may be influenced by unreliable information and maliciously motivated accusers,” she noted.

Who better than the accused is able to offer information to investigators bearing on the credibility and motives of an informant, but which may not be readily apparent to agency investigators, Fishbein asked.

At the Johns Hopkins University School of Medicine the accused faculty member is informed of the source of the accusation. This practice has not appeared to deter whistleblowers, particularly because the procedures warn that there must be no recrimination for a person bringing an allegation of professional misconduct in good faith.

Although over the past 20 years Johns Hopkins has had several instances where misconduct charges have led to dismissal or resignation of a faculty member, the school has not become embroiled in lengthy and contentious litigation charging that its procedures were unfair, she said.

Fishbein also is concerned about accusations of scientific misconduct arising from disputes that are bound to occur as the result of competing theories and quarrels about methodology. Such giants as Darwin, Mendel and Einstein were accused of fraud in their time and later, she recalled.

“We must avoid cultivating a police-state mentality in our laboratories and research programs,” Fishbein said. Scientists must remain free to pursue new and unorthodox avenues of inquiry without fear of being victimized by meritless accusations of scientific misconduct.

“The ultimate priority in policing science must be to find a proper balance and, in doing so, preserve the academic freedom of legitimate scientists.”