To: Members of the University Community
From: James V. Maher, Provost
Date: February 4, 2002
The Environmental Law Clinic, Academic Freedom, and the Report of the Tenure and Academic Freedom Committee
In the midst of all of the wonderful programs, activities, and achievements of the University in recent years, I write at this time to set forth the University's position with respect to the facts and conclusion of the report of the Tenure and Academic Freedom Committee concerning the School of Law's Environmental Law Clinic. I do so both as the Chief Academic Officer of the University and as one of the individuals to whom that report was formally transmitted.
From the outset, let me strongly reaffirm that the University administration has consistently supported and defended members of the School of Law faculty involved in environmental issues, has never infringed on their academic freedom, and disagrees with both the factual presentation and the conclusion of the report. To further understandings of the current situation, I thought it might be helpful for members of the University community if I discussed the history and current status of academic freedom, its relevance to the Environmental Law Clinic, and why I believe we have been careful not to risk compromising academic freedom in our decision-making.
I. THE ENVIRONMENTAL LAW CLINIC AT THE UNIVERSITY OF PITTSBURGH
The University of Pittsburgh's Environmental Law Clinic was established in January 2001 in order to provide interested students an opportunity to work on real-life cases that involve community organizations and individuals engaged in environmental litigation. Establishment of the Clinic was made possible in part by a $2-million gift from the Heinz Endowments, the earnings from which provide most of the support for its staff and operation.
The Clinic was organized as an integral part of the School of Law, which houses it, appoints its director, and provides the additional funding required for its operation. This structure is consistent with other law clinics at the University of Pittsburgh, and with that of some environmental law clinics across the country. A number of institutions, however, have followed a different organizational model, in which the environmental law clinics are separately incorporated or governed. During its first year, our Clinic has operated at a modest level, with a total of 10 students earning academic credit through their participation in about a dozen cases.
Several years before the formal founding of the Clinic, Pitt law faculty members brought law suits seeking to stop timber harvesting in the Allegheny National Forest in the northwestern corner of Pennsylvania. This generated considerable controversy among elected officials from that region, including members of the state legislature. That controversy has not abated over the course of subsequent years and reached its peak late last May when another of our law professors, acting as an individual, brought another law suit seeking to halt timbering in the National Forest just as the legislature was moving through the final stages of its annual budget process. What quickly followed was an amendment to the University’s nearly $180 million appropriation specifically requiring that “NO FUNDS APPROPRIATED BY THIS ACT MAY BE USED FOR COSTS OF PERSONNEL AND OPERATIONS OF THE ENVIRONMENTAL LAW CLINIC”. [Emphasis in original.] The existence of this limitation was also highlighted by the Director of the Commonwealth’s Bureau of Budget and Fiscal Management in his official appropriation transmittal to the University on July 2, 2001.
For the past few months, both the legislature’s restriction and the University’s legally mandated compliance with it have raised questions regarding the Clinic’s organizational structure, its relationship to the University and the School of Law, and possible options for its support independent of Commonwealth funds. Even more important are questions regarding links between this legislative action and the University’s compliance with it and the concept of academic freedom. Fully understanding those issues is vital to the University and requires a careful review of the complex and changing role of academic freedom, including its principles and history, its current status, and, in particular, its application to our University and its Environmental Law Clinic.
II. ACADEMIC FREEDOM: PRINCIPLES AND HISTORY
The bedrock principles of academic freedom are found in the 1940 Statement of Principles on Academic Freedom and Tenure, adopted by the American Association of University Professors (AAUP) and the American Association of Colleges (now the American Association of Colleges and Universities). Along with a set of interpretive comments appended in 1970, this document is still the basic expression of academic freedom today, and it is endorsed by 173 organizations and associations.
The 1940 document begins with a rationale for academic freedom that remains as relevant today as it was more than 60 years ago: "Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition." [Emphasis added.] The AAUP statement then goes on to describe three basic principles of academic freedom, as well as the limits on those principles. In summary, these are:
- Teachers are entitled to full freedom in research and in publication of the results, subject to adequate performance of their other duties and an understanding with university authorities regarding research for "pecuniary return."
- Teachers are entitled to freedom in the classroom to discuss their subject, but they should be careful not to introduce controversial material that has no relation to that subject.
- Teachers are entitled to speak and write as private citizens, free from institutional censorship or discipline, but as scholars and educational officers they should at all times be accurate, exercise appropriate restraint, show respect for the opinions of others, and make every effort to indicate that they are not speaking for the university.
Those rights and freedoms, which seem self-evident today, are the legacy of many generations of teachers and students intent on the pursuit of truth and knowledge. Inevitably, the new ideas developed in that process were sometimes in conflict with established authority. History records hundreds of instances when new ideas were suppressed and the individuals espousing them were persecuted for their viewpoints. Socrates, Martin Luther, and Galileo are only the most prominent examples. More recent attempts at suppression involved blacklisting, censure, denial of tenure, or firing.
From the Middle Ages until the 18th century, opposition to academic freedom in Europe was largely in the form of censorship by established religion. In the 18th and 19th centuries, newly emerging nation-states also became a major threat to free inquiry, subjecting both universities and professors to government authority. The modern idea of academic freedom, which formed in opposition to these forces, can be traced to the University of Leiden (Netherlands), founded in 1575. The concept was firmly established in Germany at the University of Göttingen (1737) and at the University of Berlin (1811), where the principles of Lehrfreiheit und Lernfreiheit (freedom of teaching and freedom of studying) were formulated and practiced.
The foundation of these principles was that the search for intellectual truth, based on objective and scientific inquiry, transcended religious and political partisanship. In the endeavor to separate knowledge from prejudice, the scholar had to be protected from suppression of new ideas by orthodoxy. This concept of neutrality—the impartial search for the truth on the part of scholars and the enabling role of the university itself in fostering an atmosphere of open inquiry—has been at the heart of the justification for academic freedom, and it is still implicit in the aforementioned AAUP statement. For its part, the University administration assumes a neutral policy concerning the work of faculty and students in order to empower and support their academic freedom.
ACADEMIC FREEDOM IN AMERICA
In contrast to continental Europe, most early American colleges were founded and governed, as had been the case in England, by churches or their representatives to promote religious ends, educate the young, and train ministers. Although the University of Virginia was founded as a secular institution in 1819 on Thomas Jefferson's stated principle of the "illimitable freedom of the human mind," it remained one of the rare exceptions until the second half of the 19th century, when American higher education experienced two dramatic changes. The first of these was triggered by passage of the Morrill Act in 1862, authorizing federal land grants to establish a public university in each state. Within a year of the bill's passage, nine states—including Pennsylvania—had done so, and many other states soon followed suit, either by establishing new institutions or assigning land-grant functions to existing institutions. The second was the rapid emergence of the modern research university, dedicated both to research and to graduate as well as undergraduate study. This was exemplified by the founding in 1876 of The Johns Hopkins University, whose mission was the encouragement of research and the advancement of science. Within a few years, other research universities grew out of such existing liberal arts colleges as Harvard, Yale, and Columbia, and still others were founded by private endowments from such business leaders as Leland Stanford, Cornelius Vanderbilt, and John D. Rockefeller (the University of Chicago).
As a result of these developments, public and secular institutions predominated in American higher education by the beginning of the 20th century. This change lessened religious constraints on academic freedom; however, it also increased potential intrusion from government, business, and other outside forces, all of which exerted pressures on colleges and universities. For example, scholars who supported Darwin's theory of evolution faced ridicule and loss of their positions well into the 20th century. As well, opposition to economic and political theories came from business and government groups, often represented by the same people serving universities as benefactors and trustees. Political and international tensions also led to battles over academic freedom early in the century, when loyalty oaths for teachers were instituted during World War I, and again in the 1930s, when communism attracted considerable intellectual interest.
In this environment, the work of the AAUP (founded in 1915) and other emerging academic societies gave scholars and teachers important support in establishing and preserving their rights and privileges. By the middle of the 20th century, teachers in the U.S., as well as many other countries, had won recognition of the right of academic freedom, but debate continued over the application and limits of that principle. For example, the National Defense Education Act (1958) specified loyalty oaths as a condition for federal aid to students. Also, during the 1950s, U.S. Supreme Court decisions upheld the right to bar public school teachers from advocating the overthrow of the government, the right to discharge teachers who refused to answer questions about earlier communist activities, and (in 1959) the legal right of the House Un-American Activities Committee to investigate possible subversive activities in education. The University of Pittsburgh was not unscathed by these problems. In fact, in the early 1960s, when we were still a private university, Pitt became the site of what has been called “the last national case of anti-communist witch-hunting” when the views of Professor Robert Colodny were attacked as un-American. Though it might seem surprising today, the matter was not easily resolved. Instead, a committee appointed by the Chancellor investigated the charges for several months, and its findings were then reviewed by a second group. In the end, the decision vindicating Professor Colodny was not based squarely on principles of academic freedom but rather on the finding that he was not “a subversive person as defined by the Pennsylvania Loyalty Act of 1951.”
Most of these activities had lapsed by the late 1960s, and the challenges to the application of academic freedom in the following decades have arisen mainly from ambiguities as to the limits of academic freedom when academic activity is extended into endeavors which had not earlier been envisioned as protected by academic freedom. In particular, student and faculty demands for freedom of behavior and a role in university policy—often including sit-ins, demonstrations, strikes, occasional violence and other activist tactics—sought to extend the meaning of academic freedom and, at the same time, complicated the problem of defining its limits.
III. ACADEMIC FREEDOM: CURRENT ISSUES
At the beginning of the 21st century, American society is vastly different from what it was 100 years ago—larger, more diverse, and more tolerant and respectful of different beliefs and behavior. Nowhere is this more true than in higher education. Colleges and universities are far more complex institutions than they were when the modern concept of academic freedom emerged in the U.S. nearly a century ago. Medical schools, law schools, and business schools, as well as schools or programs in social work, nursing, and journalism, have added new dimensions to university curricula, frequently by extending the idea of a “clinic” to mean an instructionally oriented practicum. Many such programs are accredited by outside agencies, such as the American Medical Association and the American Bar Association, whose concerns are as much professional as scholarly. Disciplines like women's studies, special education, and ethnic studies frequently incorporate "advocacy" components in their instructional programs, a component that can be significantly different from the traditional role of scholars and universities. As well, many such programs reach into the broader community in new ways, often through apprenticeships, internships, externships, and clinics.
Consequently, although the concept of academic freedom remains firmly embedded in American higher education, questions about the extent of that freedom and the limits and conditions under which it may be exercised are being debated both within universities and in the courts. In particular, debate centers on three issues: the distinction between academic freedom and the First Amendment right of freedom of expression; the relationship between individual and institutional academic freedom; and the tension between institutional neutrality and advocacy. I will mention some of the issues in each of these three areas and then discuss the role that Pitt and other major universities assign to the collective judgment of the faculties of our schools to manage problems of institutional academic freedom.
ACADEMIC FREEDOM AND THE FIRST AMENDMENT
Limits have always been imposed on free speech by laws regulating obscenity, pornography, and libel, but those standards are less clear than they once seemed to be. Such issues as political correctness, sexual harassment, ethnicity, and racial or gender stereotyping have led some within the academy to question the traditional interpretation of freedom of expression. Attempts to regulate what is seen as objectionable behavior or language on the campus or in the classroom, efforts to censor faculty or student art exhibitions, photographs, plays—even yearbooks and student newspapers—are increasingly contested as infringement of academic freedom.
On the other hand, recent rulings in several cases suggest a narrowing interpretation of academic freedom in the courts. The implication of these decisions is that, in legal terms, academic freedom is little more than the freedom of expression guaranteed by the First Amendment. In contrast to this new direction, the University of Pittsburgh has continued to stand firmly for the traditional interpretation of academic freedom.
INDIVIDUAL AND INSTITUTIONAL FREEDOM
While the traditional view of academic freedom, exemplified by the AAUP Statement of Principles, has focused on the rights of students and faculty in relation to university administrators and boards, the courts have emphasized the importance of protecting the institution itself from undue outside influence. Unfortunately, conflicts can arise between these two areas of interpretation, and case law is still evolving in this area. Again, the tendency of the courts to reduce the academic freedom of the individual faculty member is in sharp contrast to the position the University of Pittsburgh has maintained.
NEUTRALITY AND ADVOCACY
Academic neutrality does not mean that scholars are expected to be "neutral" in regard to truth, knowledge, or the accuracy of their research methods and results; nor is it intended to prevent them from taking controversial positions in regard to social and political issues. Even in reference to the university, rather than its individual members, the concept of academic neutrality does not imply passivity, but adherence to an institutional mission and set of values that encourage a balanced neutrality through free inquiry and honest discussion. The protection of such free inquiry—as at the University of Pittsburgh—is essential in every discipline, but especially in those directly linked to social issues, where differences of opinion and policy are most likely to occur. However, pursuing that responsibility by extending instructional and scholarly activities outside the normal academic forum to include litigation or overt political activity with a commitment to social action has generated controversy in a number of instances at a number of universities.
THE COLLECTIVE ROLE OF THE FACULTY
The University of Pittsburgh, like many other major universities, has addressed areas of potential conflict between academic freedom of the individual and the institution’s academic freedom by assigning responsibility for the delivery of its academic programs to the faculty of the University (or of one of its schools). Thus, curriculum committees define the expectations of individual courses and practica in terms of the goals of the academic program, and these committees generally decide, on the basis of the role of a given activity in the overall program, how restrictive to be in circumscribing the permissible activities of the individual instructor in that activity. In some cases, the curriculum committee might give the instructor wide latitude, but in others it might set a required minimum curriculum that covered most of the available course time and it might specify the course’s textbook. Similarly, some clinical activities are severely circumscribed by the faculty in some of Pitt’s schools and departments. The faculty of the School of Law have not imposed any significant restrictions on the operation of their clinics, and in all of our dealings with the Commonwealth of Pennsylvania over the activities of the clinical faculty, the University of Pittsburgh has resisted demands that it impose a more restrictive framework on the operation of its Environmental Law Clinic than that imposed by the School of Law.
WHERE PITT STANDS
Even as debate over these issues continues on campuses and in the courts, the University of Pittsburgh aggressively endorses the longstanding understanding of academic freedom as discussed above. The University has been and remains determined to resist any infringement of these principles from any source. A free society cannot tolerate the repression of new information, new ideas, and new ways of understanding, however unpopular or controversial they may seem. The purpose of academic freedom has always been to protect and preserve the pursuit of truth and its dissemination. But academic freedom does not benefit only teachers and students. Everyone benefits from academic freedom, and the AAUP Statement of Principles, written more than 60 years ago, still stands as its justification: "Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition."
IV. ACADEMIC FREEDOM: THE UNIVERSITY OF PITTSBURGH AND ITS ENVIRONMENTAL LAW CLINIC
There is no dispute that two basic actions initiated the recent controversy involving the Environmental Law Clinic. 1) The Pennsylvania state legislature inserted an explicit limitation in this year's University appropriations bill stating that no Commonwealth appropriation funds could be used for the Environmental Law Clinic. 2) The University complied with that restriction by assessing the School of Law on an ongoing basis for overhead and administrative costs accrued since July 1, 2001, to be met from its private funds.
The legalities of these actions are equally straightforward. Governments have the legal right both to appropriate public funds and to limit the purposes for which appropriated funds may be expended. This “power of the purse” is exercised regularly and in a range of ways. To advance their policies, for example, governments frequently affect individual or institutional behavior through the creation or definition of funding streams, rather than through laws that require or prohibit particular forms of conduct. For example, Executive Order 11246, signed by President Lyndon Johnson in 1965, requires government contractors to take affirmative action to ensure that targeted ethnic groups and women are fairly included in employment activities. More than 35 years later, universities nationwide accept this requirement in exchange for the privilege of participating in federally contracted research and business.
Just last summer, researchers from this University and others anxiously awaited the President’s release of guidelines for fetal stem cell research. Those guidelines do not prohibit such research, though some had argued for that result. Instead, the federal government used its spending power to achieve what has been labeled a compromise between competing policies. As a result, private companies and others not dependent on federal funding can move forward with research not restricted to particular stem cell lines. However, though the federal government continues to invest heavily in biomedical research, its investments in this area have been explicitly restricted. Researchers supported by federal grants are limited to the use of designated stem cell lines, taken in the past from already destroyed human embryos.
With respect to individuals, there are no civil or criminal penalties, of course, leveled against conspicuous consumers who refuse to save. Instead, congressional tax policy and statutes have encouraged saving by means of tax relief designed exclusively to increase individual propensity to save more for retirement and consume less. In this example, the liberated funds are restricted to use toward savings and may not be legally applied to other purposes. The taxpayer, of course, is free to forgo the larger paycheck and the concomitant savings program with no further legal consequences resulting from the decision.
In like manner, the Commonwealth of Pennsylvania, another of Pitt's principal funding partners, consistently supports the University of Pittsburgh but objects to the activities of our Environmental Law Clinic. To advance its own agenda on behalf of the people of the Commonwealth, the legislature appropriated nearly $180 million to Pitt for the current fiscal year. But, as is now well known, it included an explicit limitation prohibiting use of any portion of the funds by the Environmental Law Clinic.
Obviously, no one who cares about the University would encourage Pitt to decline to accept the appropriation or to ignore the law. Thus, the University has accepted the appropriation and complied with the spending limitation attached to it. But the enactment of that funding limitation also highlights a limitation on academic freedom. Academic freedom provides protection for speech and, in some cases, for action, but it is not the source of a funding guarantee. Throughout the University, each and every day, hundreds of our colleagues make decisions that could lead to their losing funding for their academic projects. If the projects involve only one or a few faculty, these faculty usually have considerable freedom in shaping them, and principles of academic freedom can play some role in protecting those decision-making rights. But faculty making such decisions are painfully aware that academic freedom does not guarantee that a budgetary safety net will insulate them from the economic consequences of their choices, whether the economically damaging decisions are made by government grant monitors, private philanthropists, tuition-paying students or event-attending patrons. In fact, as we all know, academic freedom does not insulate even currently funded programs that remain unchanged from the changing priorities of funders.
Advocates for the Environmental Law Clinic frequently urge that the University should continue its financial support of the Clinic. However, given the clear language of the appropriation act, the continuation of past funding arrangements is no longer possible. Instead, new forms of support need to be found. The search for those resources most appropriately should be undertaken by the School of Law—the unit most responsible for the Clinic’s creation and for its management.
V. THE REPORT OF THE TENURE AND ACADEMIC FREEDOM COMMITTEE
This brings us to the just-issued report of the Tenure and Academic Freedom Committee. This committee normally plays a mentoring role in counseling aggrieved faculty members, and its processes accordingly involve great discretion and confidentiality. While the process the committee uses is quite valuable and effective in most faculty grievance cases, the process resulted in some unfortunate problems with the committee’s report in this instance. In particular, the process followed had no provision for error-checking by all affected parties. As a result, there was no opportunity to alert the committee to some crucial errors and omissions before the release of its report.
To read the report as it stands, an otherwise uninformed reader could conclude that many relevant actions occurred in a very compressed period of time (roughly from mid-July 2001, when Mon/Fayette-related complaints first came to our attention, to early October 2001, when the Office of Budget presented its analysis) and that the legislatively imposed budget limitation was triggered by controversy surrounding the Clinic’s relatively recent intervention in the Mon/Fayette Expressway dispute. In fact, neither is accurate. The report’s summary is grounded in the explicit conclusion that the Clinic’s representation of “a citizen’s group opposed to the Mon/Fayette Expressway…evoked opposition of state legislators, who removed funding for the clinic from the state budget.” However, the available record clearly demonstrates that the action of the legislature was produced by a multi-year dispute tied to timber harvesting in Northwestern Pennsylvania, not to proposed road construction in Southwestern Pennsylvania. Similarly, the report asserts that in September 2001 the Clinic was told “that it could not approach major Pittsburgh foundations for supplementary funding.” In fact, limitations on foundation solicitations affecting the Clinic had been in place for a period of years, reflected a normal process of establishing campaign priorities for the institution as a whole, and were unrelated to the dispute over the Mon/Fayette Expressway. Let me briefly describe the far more extended, and somewhat more complicated, context within which these matters must be considered.
THE UNDERLYING DISPUTE
The event initially drawing the University into the Allegheny National Forest dispute was the submission by two law faculty members, in the summer of 1997, of materials to the United States District Court under a cover letter typed on letterhead of the School of Law. The propriety of that submission was questioned by an attorney representing the federal government. Everyone at the time seemed to agree that the use of institutional letterhead was both inappropriate and inadvertent, and the matter might have ended there. However, explanatory correspondence from the School of Law went further, providing what proved to be overly broad assurances that “[n]either the University of Pittsburgh nor the School of Law has any role in the pending action.”
Those assurances, in turn, prompted follow-up inquiries—by representatives of the federal government, by representatives of the state government, and by “tax-paying citizens”—about the support actually being provided by the School of Law. It subsequently was determined that institutional support included the use of the facilities, equipment, staff and students of the School. That posed problems both because the professor/attorneys were seeking fee awards, making the work potentially remunerative, and because the School had no policies or monitoring processes in place.
These events launched what now has been a multi-year series of sometimes intense exchanges with elected officials (members of Congress, state legislators, county commissioners and school board members, among others) from the state’s northern tier—invariably pressing the complaint that a state-supported institution should not be involved in litigation that they considered to be destructive of the economies of their home communities. Over the course of that extended period, many, many hours have been devoted to the management of this dispute by representatives of the University. Whatever the form of exchange and no matter who was involved, one constant has been our steadfast rejection of any and all attempts to force the University to exercise control over its faculty members that would be inconsistent with academic freedom. And giving credit where it is due, the involved faculty members regularly made efforts to structure their own activities in ways that did not create unnecessary complications for the University, even while meeting their obligations to their clients.
As was noted above, legislative interest in these issues reached new levels of intensity in late May 2001, when the Commonwealth’s budget process was moving through its final stages. At that time, a law faculty member filed a new law suit seeking further limitations on timbering in the Allegheny National Forest. One immediate consequence was that University leaders were summoned to Harrisburg for an emergency meeting with a group of concerned legislators representing districts in the affected region. That meeting included demands that the faculty member be discharged, required to withdraw from the litigation, or otherwise controlled. Those demands were rejected at that meeting and, as the TAF report acknowledges, were again rejected in a subsequent letter sent by the Chancellor.
Perhaps because control of appropriations rests within the power of the Legislature and is not dependent on the consent of University officers, budgetary reductions were not a principal focus of that meeting. However, the prospect of such a response by the Legislature was the subject of contemporaneous public discussion in newspapers in the northern part of the state, and both the most involved legislator and the most involved faculty member had been interviewed by media in that process. When the University’s appropriation was enacted into law, such a limitation was included in the act.
THE LEGISLATIVE LIMITATION AND THE UNIVERSITY’S RESPONSE
More specifically, when the bill authorizing our Commonwealth appropriation was passed into law in mid-June, a concluding section had been added. As noted above, that section reads: “NO FUNDS APPROPRIATED BY THIS ACT MAY BE USED FOR COSTS OF PERSONNEL AND OPERATIONS OF THE ENVIRONMENTAL LAW CLINIC.” Particularly because this “all caps” treatment was not included in the TAF Committee’s report, it should be noted that this was a part of the bill itself, was unique to this one section of the bill, and seemed clearly intended to call attention to the funding limitation.
The formal funding transmittal from the Director of the Commonwealth’s Bureau of Budget and Fiscal Management, dated July 2, 2001, also called specific attention to this provision, stating: “Please note that Section 11 of the enclosed Act provides specific restrictions regarding the use of funds.” Copies of that correspondence were also forwarded to our Vice Chancellor for Budget (who earlier had served as our Director of Internal Audit), both by the Commonwealth and by the Chancellor. On July 9, 2001, the Chancellor specifically directed that the University’s Office of Budget determine what steps should be taken to comply with this legal requirement.
THE OFFICE OF BUDGET’S ANALYSIS
The application of the federal Office of Management and Budget's Circular A-21—which is formally titled “Cost Principles for Educational Institutions”—for assessing the Clinic's overhead costs was not "a questionable accounting procedure" as asserted in the TAF Committee report. Even though we do not normally have to account for the personnel and operating costs of individual academic programs funded through the Commonwealth appropriation, such accounting is routinely required for federal research grants and sometimes required for other funding streams. Because it is a federal requirement that cost accounting for other programs, when it is done, must not result in other agents securing an advantage over the federal government in financial charges, the OMB A-21 has become the standard cost-accounting formula used for educational institutions. This methodology is unassailably accurate, able to withstand scrutiny from state auditors and any potential criticism or challenges from the state. Difficulties with the Commonwealth auditors would not be the only unpleasant consequence of using a different cost accounting procedure; federal penalties can result from costing nonfederal projects differently from federal projects.
Since most of our programs do not have to be analyzed for indirect costs, it is only seasoned principal investigators on federal grants who would be familiar with this cost accounting in a university setting, so it is understandable that many members of the TAF Committee may have been puzzled by this process. It is also important to realize that for the entire thirty-six year history of the University’s state-related status, the University has consistently answered all Commonwealth questions as to the disposition of the Commonwealth appropriation by arguing that our commingled E&G funds could not be peeled apart to re-identify the state monies. While this argument has advantaged us on countless occasions, it leaves us in this case unable to use any of our E&G money to cover Clinic overhead, and reversing the argument for the first time in the long history of our discussions with the Commonwealth auditors (and the first time that the distinction could have legal consequences) would have been most unwise. Even if this were not the case, it would be quite difficult to argue that no state funds had been used for the Clinic if any Clinic support were to be drawn from our E&G operating budget with its commingling of state funds and other University revenues.
THE TIMING OF THE OFFICE OF BUDGET ANALYSIS
The University did not SUDDENLY bill the Clinic $62,599 in overhead costs last October, but rather notified the School of Law that its clinic account would be assessed monthly overhead charges on an ongoing basis, retroactive to July 1, 2001, in order to comply with state law. The University did not begin charging the School of Law until October 2001 because Pitt's OBC was preoccupied during the summer months—its busiest time of the year—with high-priority projects following the passage of the University's state appropriation. These include closing the books for the past fiscal year, “loading” the new budget, and processing retroactive pay increases for faculty and staff. We are all used to having July 1 pay increases only appear in our pay checks on September 30 because of the very heavy activity in this key office during the two months following the nearly simultaneous closing of the fiscal year and passage of the new budget. Another unfortunate consequence of the very busy state of this office in July and August was the delay in completing the analysis of the implications of the Commonwealth prohibition of funds for the Clinic from early July until late September, at which point the Clinic faculty jumped to the incorrect conclusion that the calculation was performed in retaliation for their Mon-Fayette activities.
APPROACHES TO FOUNDATIONS
Once the cost calculation had been made, it was then necessary for the School of Law to identify a non-Commonwealth revenue source to meet this portion of the Clinic’s operational expenses. That burden, it has been said, will “bankrupt” the Clinic in a matter of months. The Committee’s report further asserts that “[t]he month before [this cost calculation was made in October 2001], ELC had been told that it could not approach major Pittsburgh foundations for supplementary funding.” In point of fact, the prohibition regarding the further solicitation of major Pittsburgh foundations applied to all of the clinics of the School of Law and had been in place since the Heinz Endowments made their commitment to the Environmental Law Clinic several years earlier. The overall rationale was clear: in a $500 million campaign, this single program already had benefited through a $2 million grant from one of the University’s most generous philanthropic supporters. Further solicitations from the Clinic directed to other major Pittsburgh foundations would neither be fair to other University programs nor consistent with campaign priorities. This left the clinic free to pursue other local and national foundations where gifts and grants would clearly be tied to programmatic interests and not principally dependent on broader commitments to the University. And, indeed, the Clinic succeeded in attracting support from one anonymous local foundation and is in the process of seeking support from another anonymous local foundation. In the summer and fall of 2001, many good, high-priority University programs were being held back from approaching the foundations who have traditionally been our closest partners because of a mutual foundation-University agreement reached during ongoing negotiations to form the Life Sciences Greenhouse project (an important regional initiative to which those foundations were committed in principle) that was ultimately announced in November 2001 and is still in its formative stages. While it might have been possible to make a difficult case to relax the hold on the clinical program approaches earlier in the multi-year freeze, such a relaxation was out of the question during the last eight months.
Just last week, the Dean of the School of Law confirmed in a message to the law faculty that he and the School’s clinicians are making real progress in fashioning an agreement that “ensures the Clinic’s financial health and its freedom to zealously represent its clients”. The University has not yet seen this agreement-in-progress, and the consent of others would also be required before it could be put in place. However, this progress is heartening.
In its conclusion, the TAF report states that academic freedom is “a complex and difficult subject”. Those of us who have been actively and regularly engaged in the process know that protecting the academic freedom of law faculty members over the course of the last several years certainly has been a complex and difficult task. However, we have been consistent and committed in our efforts to meet that challenge.
The planning now underway within the School is encouraging. We share the goal of structuring the Clinic in a way that protects the Clinic from outside pressures that could compromise its viability and that also protects the broader interests of the School and the University. We further believe that initial responsibility for addressing these matters falls to the School of Law, and we hopefully await the presentation of the proposal now being shaped.