This morning sixteen federal agencies announced revisions to the Federal Policy for the Protection of Human Subjects, effective 19 January 2018. The final rule preserves and clarifies the NPRM’s deregulation of oral history. This is a great victory for freedom of speech and for historical research.
Few if any argue that journalists should be required to submit their work to IRB review. Some IRB apologists think journalism is too important to bear restriction, while others consider it so full of “blatant bias and even hyperbole” that it doesn’t deserve the dignity of review. But all participants in the debate, at least in United States, seem uncomfortable with the idea of subjecting journalists to prior restraint.
The question, as always, is how to draw the line between journalism and regulated forms of conversation. The NPRM’s proposed rule attempts to do so with a specific exclusion for “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected.” Will that suffice?
Neither the NPRM's language nor SACHRP's proposed replacement is quite right, so let me suggest an alternative.
George Mason University, my employer and my home, has issued a new Standard Operating Procedure (SOP) on Histories and Journalism, modeled closely on the excellent policies at Columbia and University of California, San Diego.
Writing in the Journal of Academic Freedom, law student James Nichols presents Canada’s TCPS2 as a model of balance “that promotes intuitive and promising research without sacrificing human integrity and protection.” However, his conclusion is largely speculative, since we still lack studies of how the document is working in practice.
[James Nichols, “The Canadian Model: A Potential Solution to Institutional Review Board Overreach,” Journal of Academic Freedom 6 (2015)]
The long awaited Notice of Proposed Rulemaking: Federal Policy for the Protection of Human Subjects, released today, suggests the complete deregulation of “oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected.”
In the coming 90-day comment period, historians will need to insist that this remains an unqualified exclusion. Still, despite this last peril, we have much to celebrate.
Law professor Samuel Bagenstos argues that recent Title IX excesses follow the pattern of IRB horror stories: the feds threaten drastic action, so university administrators hyper-regulate. He offers disability rights as an example of a less punitive regulatory effort that has produced good results.
[Samuel R. Bagenstos, “What Went Wrong With Title IX?,” Washington Monthly, October 2015.]
Adam Hedgecoe reports on two cases in which British university administrators turned to their university research ethics committees (URECs) not to protect the subjects of research, but to block controversial research they feared would tarnish the universities’ reputations.
[Adam Hedgecoe, “Reputational Risk, Academic Freedom and Research Ethics Review,” Sociology, June 25, 2015, doi:10.1177/0038038515590756.]
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