BY ZACHARY M. SCHRAG

This is a cross-post of a blog post by Zachary M. Schrag, who published it on his Institutional Review Blog. Schrag, a professor of history at George Mason University, was one of the authors of a 2013 report by a subcommittee of the AAUP’s Committee A on Academic Freedom and Tenure, Regulation of Research on Human Subjects: Academic Freedom and the Institutional Review Board.

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.

The NPRM somewhat confusingly listed a number of activities “deemed not to be research” in §__.101, then presented the definition of research itself in §__.102. The final policy more logically defines research, then lists “activities … deemed not to be research.”

Whereas the NPRM excluded “Oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information is collected,” the final rule offers a broader exclusion:

For purposes of this part, the following activities are deemed not to be research:
(1) Scholarly and journalistic activities (e.g., oral history, journalism, biography, literary criticism, legal research, and historical scholarship), including the collection and use of information, that focus directly on the specific individuals about whom the information is collected. [§__.102(l)(1)]

(Emphasis added, because I can.)

So freedom depends on the activity, not the discipline, with literary critics, law professors, and others who interview individuals benefiting. Another section of the announcement notes that this provision will also apply to political scientists and others who hope “to hold specific elected or appointed officials up for public scrutiny, and not keep the information confidential.”

The announcement explains the reasoning:

In these activities, the ethical requirement is to provide an accurate and evidence-based portrayal of the individuals involved, and not necessarily to protect them from public scrutiny. For example, a biographer might collect and present factual information to support the biographer’s opinion about the character of an individual to show that the individual does not deserve the positive reputation he or she enjoys in society. These fields of research have their own codes of ethics, according to which, for example, consent is obtained for oral histories. We note that this consent standard should address the issue of oral histories of tribal members. For these reasons, we have determined that it is appropriate to remove these activities from the definition of research and from the scope of the Common Rule.
In response to public comments, §__.102(l)(1) refers to more fields and methodological traditions than were proposed in the NPRM. The final rule also explicitly cites those fields and traditions as examples, in order to clarify that the focus is on the specific activities that collect and use information about specific individuals themselves, and not generalizing to other individuals, and that such activities occur in various fields of inquiry and methodological traditions. Literary criticism has been added as an example because while a piece of literary criticism might focus on information about the author(s), it would typically focus on the specific author(s) in view. Legal research has been added as an example because it would often focus on the circumstances of specific plaintiffs or parties involved in a case. It is not the particular field that removes the activity from the definition, but rather the particular activity’s focus on specific individuals.

I will be posting more later about the potential effects of the revised rule on the humanities and social sciences more generally. For now, I salute all those who worked for so many years to liberate oral history, especially Jonathan Knight, Cliff Kuhn, Don Ritchie, Roy Rosenzweig, Linda Shopes, Rob Townsend, and everyone who took the time to comment on the ANPRM and NPRM.