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April 13, 1995

Fisher rebuts administration's statements

To the editor:

I am writing this letter to refute the statements attributed to Dr. Thomas Detre, the senior vice chancellor of the Health Sciences, and Mr. Lewis Popper, University general counsel, in the March 30, 1995, University Times. Their comments were made because of dissatisfaction with the Senate Council approval of the resolution by the Tenure and Academic Freedom Committee reaffirming Pitt's policy on externally funded research. They are alleging that they took action in an attempt to thwart NCI's effort to engage in prepublication review. Unfortunately, the documents do not support their position but, to the contrary, indicate that they acquiesced throughout.

The University policy statement of April 3, 1992, addresses the rights, roles, and responsibilities of sponsored research investigators. It clearly states that:

* The University should not accept awards or enter into agreements for the support of research which confer upon another party the power to censor or exercise effective veto power over the dissemination of results and conclusions arising from research.

* The individual investigator should not be the subject of institutional coercion with respect to particular research projects.

* Once accepted by the University, the University must not change the condition of an award unless unusual or extenuating circumstances arise; and in such circumstances changes will be made with full consultation of the investigators; investigators have the right to appeal such decisions.

The actions taken by the NCI with regard to its attempt to review publications prior to submission, even as a condition of grant award, constituted an illegal prior restraint. The University of Pittsburgh failed to comply with its own internal policy by not contesting these actions. Furthermore, they used institutional coercion in an attempt to force me and my colleagues to comply with the NCI's demands.

The following chronology documents their deviation from University policy.

A. March 29, 1994: letter from Leo F. Buscher, Jr., Chief, Grants Management Office, NCI, to Michael Crouch, Director, Office of Research, Pitt (cc to Dr. Detre): "The NSABP must submit all NSABP manuscripts to NCI for approval before submission for publication."

B. April 7, 1994: the NCI revised the terms of Grant U10 CA 12027-23 so that "all NSABP manuscripts must be submitted to NCI for approval before submission for publication." That statement appeared for the first time in the 23 years of that grant award.

C. August 5, 1994: memo from Dr. R. B. Herberman, Director of the Pittsburgh Cancer Institute, to NSABP Faculty Members (excerpt): "In order to fully conform with the mandates from NCI…I would like to obtain your complete cooperation with the following: …all manuscripts or abstracts related in any way to NSABP clinical trials or studies derivative from those trials must be submitted to me for transmission to NCI, for their approval prior to submission to journals, book editors, or societies."

D. September 30, 1994: the University received notice of terms of Grant U10 CA 37377-1052, containing the same requirement for paper submission to NCI prior to publication as appeared in the other grant (April 7, 1994).

E. January 10, 1995: a letter from Dr. Herberman to me stated: "…I hope a close to final draft of the manuscript will soon be in hand. As you know, before finalizing and formal submission to the journal, it still needs to be reviewed by me and NCI staff."

F. January 12, 1995: a letter from Dr. R. S. Ungerleider, NCI staff, to Dr. Herberman stated: "…NCI program staff wish to review the manuscript in its current state to…avoid the need for last-minute large-scale revisions. Please provide me with the current version of the manuscript for this purpose, as well as your estimate of when you estimate its completion."

G. January 19, 1995: memo from Dr. Herberman to me stated: "Per this request from NCI please send me by January 23rd a copy of the current status of the draft of the B-06 reanalysis manuscript, so that NCI staff can initiate its review along with your estimate of date of finalization of the manuscript." On numerous occasions the University was made aware of this violation of academic freedom and restraint on First Amendment rights.

* On April 13, 1994, the NSABP Oversight Committee, and on April 18, 1994, the NSABP Executive Committee: unanimously agreed that the requirement that NSABP submit all manuscripts to NCI for approval prior to submission for publication "represents an unacceptable intrusion into the scientific, intellectual and academic freedom of cooperative groups."

* August 24, 1994: letter from my attorneys informed Lewis Popper that the actions with which the University complied were infringing on my constitutional rights.

* September 9, 1994: the Second Amended Complaint (Count IV) of my lawsuit against the University of Pittsburgh was directed against Dr. Herberman's directives regarding his need for publication review prior to submittal to NCI for additional review.

* January 27, 1995: letter from my counsel to Lewis Popper requesting that he "instruct University personnel to cease attempting to enforce the prior restraints" relative to publication.

The above chronology explicitly indicates that University policy was violated and that acquiescence to NCI's mandate did occur. Mr. Popper's convoluted defense of the University's position vis-a-vis the NCI is a perfect example of "smoke and mirrors." On January 23, 1995, my attorney, Mr. Charrow, wrote to Mr. Robert Lanman, Legal Advisor to NIH, and requested that the NCI desist or face other actions against their unconstitutional prior restraint. In that letter, Mr. Charrow also indicated that the University of Pittsburgh lacks the authority to impose prior restraints on its faculty and, because of its own policy, is precluded from imposing a prior restraint on its faculty. Only then did Mr. Popper express the University's concern. Even then, his January 27, 1995, letter to NCI's Buscher does not directly, indirectly, or remotely state "that the University would not seek NCI's approval before submitting NSABP manuscripts for publication." In fact, it is a masterful effort to beg the issue.

Faculty Council member Balaban's attempt to appease Dr. Detre by stating that the Senate resolution does not allege that the policy had been violated but that it merely reiterates what the policy says, and Dr. Detre's counter-remark that the resolution was "a perfect way of rumor mongering … because the innuendo is that policy has to be reaffirmed because something went wrong" are examples of the bizarre, Kafka-esque quality of the last year since the NSABP's "seizure" by the University of Pittsburgh.

Finally, Dr. Detre's complaint that the administration or the general counsel "…are never consulted to present their point of view" about the issues surrounding the resolution is the ultimate irony, in view of the fact that they denied me and my associates due process for over a year.

Bernard Fisher

Distinguished Service Professor

Department of Surgery

School of Medicine

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