publication date: Mar. 18, 2015
MD Anderson Preempts AAUP’s Report By Releasing the Draft to the Press—With a Foreword
By Matthew Bin Han Ong
MD Anderson’s message to the American Association of University Professors boils down to this:
A pox on your house.
For starters, President Ronald DePinho and his administration declined to meet with an AAUP committee when it came to campus to investigate a tenure dispute. (The Cancer Letter, Sept. 19, 2014).
This snub notwithstanding, AAUP provided MD Anderson with a draft report marked CONFIDENTIAL: NOT FOR RELEASE. The association’s objective was to give MD Anderson the opportunity to comment—and a comment is exactly what they got.
In the afternoon of March 13, the cancer center’s executive team threw the thing to the press.
Journalists received the confidential document, paired with a preface of sorts: a blistering letter calling it a “thirty-seven page biased editorial by misinformed individuals seeking to paint MD Anderson in the most negative light, possibly in hopes of recruiting additional membership to their labor union for certain university employees.”
The draft report and the MD Anderson letter are posted here.
“MD Anderson does not typically release drafts of reports,” officials said in an email explaining the contemptuous move to the press. “However, given the surprising focus of this document and the significant errors throughout, we feel that we need to be fully transparent about what the AAUP considers an honest and fair assessment of a public institution operating under both state and federal law.
“In addition to several significant fact errors, the majority of the 40-page report are devoted to unfair and inaccurate personal attacks on MD Anderson’s president and his wife,” MD Anderson officials said in the email. “These attacks are also unrelated to the AAUP’s focus: faculty employment measures. We remain confused as to why the document includes these assaults.
“Our term appointment measures were created by The University of Texas System and have been in place for several decades. Our current president—who did not create these procedures nor has he altered them—has only been in office for three years.”
The AAUP investigation was triggered by refusal on the part of DePinho and his administration to provide justification for denying tenure renewals to two faculty members (The Cancer Letter, April 25, 2014).
Debra Nails, a professor of philosophy at Michigan State University, chaired the AAUP investigation. The other three investigators are employed by medical institutions (The Cancer Letter, Sept. 19, 2014).
If the association finds MD Anderson at fault based on the investigating committee’s final report, the cancer hospital could join over 50 institutions on the association’s censure list. Founded in 1915, AAUP has 47,000 faculty members and 300 chapters.
MD Anderson’s administration took exception to the broad scope of the AAUP report, which notes allegations of conflicts of interest on the part of DePinho and his wife Lynda Chin, a senior scientist at the cancer center.
The report also focuses on the controversy over plummeting faculty morale at the cancer center. The faculty’s angst—overwork and dissatisfaction with top leadership—has been shown in nearly identical results from four surveys over two years.
Now, DePinho is under a directive from the UT System Chancellor William McRaven to improve morale. McRaven is expected to meet with MD Anderson faculty in a closed-door meeting later today.
“A Tactical Cheap Shot”
According to AAUP, the final published report differs in most instances —at times, significantly—from the draft.
“Our investigating committee interviewed by telephone the chief medical officer for the six University of Texas medical schools, but the MD Anderson administration declined to meet with the committee when it visited Houston in September,” the association said in a statement March 16. “Last Friday afternoon, the administration submitted comments to us in response to the draft report. The same afternoon, it released those comments, along with our confidential draft report, to the media.
“It is hardly unusual for an administration to take issue with material in a draft report, but it is rare indeed for an administration to violate the confidentiality of the draft, which is maintained primarily to protect the institution and its administrators and faculty members.”
Major research institutions generally do not resort to taking a “tactical cheap shot,” said Matthew Finkin, director of the Program in Comparative Labor and Employment Law & Policy and the Albert J. Harno and Edward W. Cleary Chair in Law at the University of Illinois.
“I can’t recall any major research institutions being in this position,” said Finkin, who has participated in four AAUP investigations and chaired two.
“As I understand it, in this case, the administration refused to meet with them, although the central administration did, which I find very strange,” Finkin said to The Cancer Letter. “The University of Texas System people were quite willing to meet with the committee. It’s the MD Anderson people who were not.”
Finkin is the author of two definitive books on tenure in the U.S.—The Case for Tenure, and For the Common Good: Principles of American Academic Freedom. He is also an author of Labor Law, a leading casebook in American legal education.
“For an institution to release the report when they know it’s sent to them in confidence for the purpose of fact-checking, and then to publicly criticize the report for inaccuracies—most of which are terribly minor, if indeed they were inaccurate—is a tactical decision to attempt to discredit a process for doing what it should do to ensure the very end that the administration is criticizing in force.”
AAUP abides by an open, scholarly process, Finkin said.
“That series of interrogatories that the MD Anderson leadership put to the association? I must say, it was responded to in a genial manner. If I were still general counsel, I would have said, ‘Go to hell. Go back to the Utah report in 1915, it’s been 100 years, we’ve been doing this ever since,’” Finkin said (The Cancer Letter, Sept. 19, 2014).
“MD Anderson criticizing AAUP for doing what they’re supposed to be doing, as I said, is a tactical cheap shot to try to undermine the credibility of the report,” Finkin said.
“I think this is in keeping with their whole approach to this problem—denial and attack. I find it rather tawdry.”
MD Anderson Threatens to Sue AAUP
In a letter dated March 13, DePinho’s administration threatened “likely” legal action for statements made in the draft report regarding Chin, who is married to DePinho.
AAUP officials declined to comment on the content of the draft report.
“As is our practice, the AAUP distributed the draft investigating committee report to interested parties at the MD Anderson Cancer Center on a confidential basis,” said Gregory Scholtz, AAUP associate secretary and director of the Department of Academic Freedom, Tenure and Governance. “These included both the center and system administration, the subject faculty members, and others. Our purpose in doing so was to solicit their comments and corrections of fact so that the final report would be as fair and accurate as possible.”
DePinho’s administration demurred, saying that it is not their job to ensure accuracy.
“At the outset, we believe it is important to note that it is not our responsibility to correct factual misstatements in the document, nor do we purport to do so in every instance we have found,” the executive leadership wrote in their letter to AAUP. “Reading the document, however, leaves the clear impression there was little or no effort by the AAUP to validate any factual statements, particularly given some of the more glaring errors. That being the case, we find the document to lack credibility in most respects.”
AAUP appreciates MD Anderson’s comments, Scholtz said to The Cancer Letter.
“Though the MD Anderson administration declined to meet with the investigating committee when it visited Houston, we are appreciative that they are now willing to provide us with their comments on the draft text,” Scholtz said. “We will certainly take their comments into account as we prepare the report for publication, and we expect that, as a result, we will produce an even better final version.
“We have also received the comments of other interested parties, all of whom had a much different opinion of the quality of the report than that of the MD Anderson administration.”
According to Finkin, there is nothing AAUP can do about a leaked draft report.
“If MD Anderson has released it, then it is now out in the ether,” Finkin said. “It is what it is.”
“Reinstatement Will Not Occur”
In the draft report’s conclusions, the AAUP committee stated that DePinho’s administration acted in disregard of its own policies, as well as tenure principles and procedures widely practiced by institutions of higher education.
“The administration of the University of Texas MD Anderson Cancer Center acted in disregard of the 1940 Statement of Principles on Academic Freedom and Tenure, which affords the protections of tenure to full-time faculty members after seven years of service, when it failed to retain Professors Kapil Mehta and Zhengxin Wang following thirty and twelve years of service, respectively, without having afforded them the protections of academic due process,” the committee members wrote in the draft report.
The decision to censure an institution rests with the AAUP’s annual meeting of members and delegates, which is usually convened in May or June.
“The investigating committee had neither the authority nor the desire to censure,” the committee wrote. “The committee was committed to working with the faculty, the administration, and the University of Texas System generally to prevent the possibility of censure.”
In its response to AAUP, DePinho’s administration appears to have drawn the line:
“Despite the AAUP’s repeated position that the only acceptable outcome concerning the two individuals in question is reinstatement, given that one is employed elsewhere and the other is retired and working at MD Anderson in a part-time capacity, reinstatement will not occur.
“We are left with the AAUP’s conclusions in the document that are either demonstrably inaccurate or find fault with the administration of MD Anderson for not abiding by the non-authoritative AAUP’s principles, by which MD Anderson has never been governed. Moreover, the rules that govern MD Anderson’s handling of these matters, those promulgated by the Board of Regents of The University of Texas System, have been explicitly followed.”
Finkin: MDA Lawyers “Obviously” Did Not Read Reports
The MD Anderson executive leadership—in a lengthy footnote in their March 13 letter to AAUP—cites previous AAUP investigations, implying that in certain cases, AAUP defended faculty members against dismissal even after they had been convicted for criminal activity:
“One would think such a high correlation between the Promotion and Tenure Committee recommendations and the actions of MD Anderson administration would demonstrate continued employment for term tenured faculty at the institution is indeed a matter of rebuttable presumption.
“However, our own investigation of AAUP decisions in other instances would make one believe that in the AAUP’s opinion the presumption can never be rebutted since even criminal activity by a faculty member is still not reason for dismissal by their employer.
“See AAUP investigative reports concerning The University of South Florida (2003)[Faculty member pled guilty to and was convicted of, ‘conspiring to make or receive contributions of funds, goods, or services to or for the benefit of the PIJ, a specially designated terrorist organization,’];
“City University of New York (2004)[Faculty member convicted of providing material support to terrorist activity.]
“University of Virginia (2001)[Faculty member pled guilty to criminal financial misconduct yet the AAUP stated, ‘An arrest (and even a subsequent guilty plea) do not retroactively justify an administration’s unilateral action to dismiss a member of the faculty.’]”
MD Anderson’s assertions are wrong, said Finkin, the law professor at the University of Illinois.
“MD Anderson’s footnote on presumptions is obviously drafted by a lawyer,” Finkin said. “They cite the case of The University of South Florida. The faculty member was not convicted at the time. Ultimately, he was prosecuted, and found not guilty of the major charges. The jury hung on one minor charge and he later pled guilty to that to make the case go away. But he was actually acquitted of the major charges, which was supporting terrorist organizations.”
As for the City University of New York faculty member, Finkin said the issue was whether he was convicted at the time of the AAUP investigation.
“I chaired that committee, and Debra Nails was on it. The faculty member in question wasn’t convicted, he was indicted at the time of the case,” Finkin said. “Two years later, there was a trial and he was convicted.
“However, the whole issue in the case was, ‘Is an indictment enough merit for an administration to summarily suspend the faculty member?’
“That committee also consisted of the late Richard Uviller, a well-known professor of criminal law at Columbia University, a former city and federal prosecutor, and a very tough guy. The report goes on at length about what an indictment means.
“MD Anderson’s assertion about the conviction was simply wrong. The faculty member was not convicted at the time of the investigation.
“If MD Anderson’s lawyers had actually read the report, they would see that was a critical distinction.”
MD Anderson’s executive leadership also took the University of Virginia case out of context, said Jordan Kurland, AAUP’s associate general secretary.
“The case involved embezzlement. This was a faculty member who was using government funds for personal use,” said Kurland, who has staffed AAUP investigations for 50 years. “The University of Virginia’s procedures for dismissal were, on the face, exactly what AAUP recommends.
“The administration that was in authority at that time said, ‘Well, that obviously means anything related to academic performance, either incompetence or neglect of work, or personal conduct i.e. making a pass at a student.’
“This is a question of stealing money from the state. The auditor’s office of the Commonwealth of Virginia, not a faculty hearing, is the appropriate venue—they do this all the time,” Kurland said to The Cancer Letter. “It was through the auditors of Virginia that the finding was reached, to which the professor pled guilty.
“We took the position in the case that no matter what the nature of the charges against the individual might be, in terminating a tenure case, a faculty body needs to pass on it. What we said to UVA at the time was they erred in not having a faculty body do this.
“We did not impose censure, we called for corrective action vis-à-vis policy by the administration, and in the months following, the UVA did adjust its rules as we recommended, and closed that loophole so that in the future, all cases would have been run by the faculty.
“So what I’m saying is, MD Anderson grabbed onto this one sentence without going into the reasons for it.”
Attacking the credibility of AAUP, as opposed to disputing the facts and conclusions of its draft report, is not standard behavior, Finkin said.
“The snide insinuation that the AAUP will defend convicted criminals willy-nilly is simply not tied to the facts of those cases—certainly not South Florida, and not City University of New York,” Finkin said.
“And here, MD Anderson’s executive leadership had obviously not read the reports, and they’re accusing AAUP.”