BY STEVEN LUBET
Hank Reichman’s recent post on the Bandy Lee case at the Yale Medical School raises an important point that deserves some further consideration. To recap, Dr. Lee has sued Yale for firing her from an unpaid, part-time position in the psychiatry department. Lee’s offense involved tweeting about the mental health of Donald Trump and Alan Dershowitz, asserting, for example, that they suffered from a “shared psychosis.”
Yale’s psychiatry department chair, John Krystal, notified Lee that she would be terminated if she continued tweeting about Trump’s (or presumably anyone’s) mental health. Such tweets, Krystal informed Lee, constituted violations of the American Psychiatric Association’s so-called “Goldwater Rule,” which declares it unethical for a psychiatrist to offer a professional opinion or diagnosis “about an individual who is in the light of public attention . . .unless he or she has conducted an examination and has been granted proper authorization for such a statement.”
Lee kept tweeting along the same lines, and Krystal eventually dismissed her for “repeated violations of the APA’s Goldwater Rule” which “raised significant doubts about” her “clinical judgment and professionalism.”
Upon learning of Lee’s dismissal, a group of prominent psychiatrists and psychologists wrote an open letter to Krystal, objecting to Yale’s invocation of the Goldwater Rule and noting that “the validity of the Goldwater Rule has been widely disputed: many professionals consider it a scientifically untenable privileging of corporate psychiatry’s interests over individual psychiatrist’s rights of free speech and expressions of conscience.”
Reichman cautiously tends to agree with Lee’s supporters. Recognizing the possibly different standards for faculty in professional schools, he concludes that “in Lee’s case,” the violation of a controversial ethical standard should not “justify a finding of lack of fitness.”
I am not a fan of the Goldwater Rule, and I tend to agree that it has outlived whatever usefulness it might once have had. It is certainly controversial within the psychiatry profession, especially in the age of Donald Trump. I am more or less inclined to agree with Lee’s defenders, but there is another side that is at least worth considering.
Whatever its virtues or faults, the Goldwater Rule has been reaffirmed over the years by the American Psychiatric Association (to which Lee, it must be noted, does not belong). Unlike legal ethics and some medical ethics principles, the APA’s rules do not have the force of law. On the other hand, the Yale Medical School may certainly adopt and enforce its own ethical principles, which was apparently the situation in Lee’s case, of which she was warned. The fact that there is not an academic consensus about the Goldwater Rule should not be determinative, so long as the principle involved is professionally reasonable, which is evidently true of the Goldwater Rule. Ethics evolve, after all, and there may be valid and important rules that have not yet achieved, or lost, consensus.
The interplay between professional standards and academic freedom is tricky, as Reichman observes. For example, I would support disciplining, or potentially dismissing, a clinical law professor who tweeted out a breach of client confidences, even if the speech involved was in the public interest. Maintaining confidences, of course, is more universally accepted in law than the Goldwater Rule is in psychiatry. I can imagine, however, a situation in which a law school imposed additional ethical obligations on clinical faculty, beyond the universally accepted rules, making adherence a condition of employment. Whether such restrictions violate academic freedom would be a question, I think, of degree.
Here is a more concrete example. Massachusetts has adopted a legal ethics rule allowing (but not requiring) a lawyer to breach client confidences in order to “prevent the wrongful execution or incarceration of another (that is, a non-client),” even if the attorney’s actual client objects. Illinois and most other jurisdictions have rejected Massachusetts’s exception. Instead, they follow the traditional rule that client confidences are inviolate, and cannot be revealed even to get an innocent person out of prison or off death row. Needless to say, many lawyers, and probably most non-lawyers, believe that it should be unethical to countenance the execution of an innocent person simply for the sake of keeping a client’s secrets.
Could a clinical law professor in Chicago be disciplined for ignoring the Illinois rule and following the Massachusetts rule instead? Could the clinical professor defend such a choice in the name of academic freedom?
Conversely, could a Massachusetts law school continue to enforce the majority rule, as a matter of its own standards, requiring clinical faculty to absolutely maintain confidences, with no exception for freeing the wrongfully convicted?
Dr. Lee herself was not prevented from excoriating Trump and Dershowitz, or otherwise expressing her political opinions, but only from diagnosing them at a distance. She may have other defenses – some procedural, some based on the actual wording of her tweets – that will have to be addressed in court.
Adherence to some professional standards must be a condition of maintaining a faculty position in a professional school, especially in a clinic. But which standards, and how are they to be determined? I fear that the answers are not at all straightforward.
Steven Lubet is Williams Memorial Professor and Director, Bartlit Center for Trial Advocacy, at Northwestern University Pritzker School of Law
My old friend Steve Lubet’s comments on this issue are most welcome as they highlight the complexity of academic freedom in professional disciplines. Similar concerns arguably have been implicated in the case of Scott Atlas at the Hoover Institution or even that of John Yoo at Berkeley Law. When Yoo took a leave of absence to work in the George W. Bush administration, his work involved justifying enhanced interrogation techniques widely condemned as torture. When he returned to the university there were calls for his removal. Lacking evidence of “clear professional misconduct,” however, the faculty and administration properly declined to act. Atlas, a former member of the Stanford University medical faculty and a fellow of the Hoover Institution, served as the Trump administration’s chief advocate for herd immunity in response to the COVID-19 pandemic. The Stanford Faculty Senate passed a resolution declaring that his “disdain for established medical knowledge violates medical ethics defined by the American Medical Association” and that his “behavior is anathema to our community, our values, and our belief that we should use knowledge for good.” Academic freedom should surely protect Atlas’s views as a citizen, but faculty members were suggesting that he had abused his White House position by implying that he was a qualified medical professional in the field (he is a radiologist, not an expert in either infectious disease or epidemiology) and in so doing had violated medical ethics. Still, the resolution did not call for disciplinary action.
Academic freedom protects teaching, research, and extramural expression “as a citizen.” But for clinical faculty, one might ask, where among these three does clinical practice–the representation of clients or the treatment of patients–reside? Publication in a law or medical journal is clearly research. An op-ed or a tweet is almost always expression as a citizen. But where does conduct in treatment (for medicine) or in handling a case (paid or pro bono) for an attorney lie? Lee’s tweets were, I think, clearly extramural expression. But an attorney breaching client confidentiality, whether justified or not (as in Lubet’s example), is behavior that doesn’t quite fit any of these three areas, or so it seems to me. Policy making like that in which Atlas and Yoo engaged may straddle the border between extramural expression and professional scholarly activity. So too might clinical practice in law or medicine. Nonetheless, the bar should be set high in determining whether or not judgments about such services are relevant to a faculty member’s fitness to teach or conduct research.
Thanks, Hank. You are right that the parallels are not exact (they seldom are). Lee was speaking as a clinician, but not about one of her own patients. My confidentiality example directly involves obligations to clients. Atlas is no longer on the medical school faculty at Stanford, so it is not obvious which ethics standards apply to him.
The commonality is the question of how professional/clinical ethics intersect with academic freedom. At a high level of generality, I would say that professional schools are entitled to insist on faculty compliance with professional ethics standards, even if that results in limits on extracurricular speech. Academic freedom does not require toleration of unprofessional conduct.
Of course, the high level of generality is not much help deciding specific cases, including Dr. Lee’s. If Sydney Powell had been a law school adjunct — thankfully, she was not — I doubt many would see a problem terminating her contract.
Apologies: I misspelled Mr. Lubet’s name. Here is the corrected version. Thank you.
Mr. Lubet states that “The interplay between professional standards and academic freedom is tricky.” I would say it is “selective.” Otherwise, in law for example, the AALS and the MRPC provide fairly unambiguous rules and guidelines on how lawyers or law professors conform to “higher duty” in public expression, including the ARDC’s fascinating Rule 8.4 (g).
Surely if the Yale individual in question (likely employed at will, if even an “employee,” and as unpaid, a difficult contract or labor law complaint) otherwise made similar comments about Biden being” senile” it would invoke an interesting case in evidence, speech and liability standards, but might also fall into the same professional conformity guidelines (there is an interesting national security, citizen and constitutional exception). Her expressive repetition especially, along with Yale’s warning trail, support the university’s position (I do not endorse it).
But Mr. Lubet leaves out Mr. Dershowitz and his influence at Yale (he is an alum of Yale Law and former assistant editor at its Journal) and his general aggressive routines of intervention or advocacy (recall the “Dershowitz-Finklestein Affair” for example). Yale is managing his formal threats in corporate liability, tort and reputation risk, not the Constitution: Alan is the “Ralph Nader” of defamation complaints, along with the asserted imprimatur of “Martha’s Vineyard” society where Yale derives much financial nourishment. This issue really doesn’t fall into free speech doctrine, or if its does, is overridden in corporate governance and economic concerns.
What is most fascinating perhaps it that Lee’s comments were not deleted, edited, removed, blocked or that she wasn’t “de-platformed.” Surely such a statement about Biden or Harris would not have survived publication and dissemination on the “Twitter” platform, and the Goldwater Rule, affirmed by its selective detractors. Regards, ’96, UChicago
> At a high level of generality, I would say that professional schools are entitled to insist on faculty compliance with professional ethics standards, even if that results in limits on extracurricular speech.
Lord knows I’m no lawyer, nor did I stay at a Holiday Inn Express last night. But I’m not sure that this will always get Yale, or its public-school equivalents, off the hook. Courts rightly accord to universities and colleges primacy in defining their own mission and standards of merit. One does not want to see every tenure-denial case wind up in litigation, with juries or judges becoming an academic equivalent of the instant-replay booth in close NFL games. But do the standards adopted by professional bodies deserve the same level of deference? That seems to me to be a different matter entirely—especially if the professional body in question were to seek to apply a sanction that it would be unlawful for the employing university to impose.
Whether that applies to Dr Lee’s case, I don’t know. Assuming that the APA didn’t exist, or didn’t have a Goldwater Rule, would Yale be entitled to impose its own, and fire her for contravening it? If the answer is “no,” then it would seem to me that the University, the Association, or both might be on somewhat thin ice.
Is there some good reason why a NEW thread had to be created here — and elsewhere — when a pre-existing set of comments already exists, and that we can draw from? Paranoid that I am, I sometimes think that these “More on …” (Moron?) posts are meant precisely to erase previous commentary that is not in line with the Party line. SOMETIMES, not always. 🙂
Frank, as mentioned previously, we often publish multiple posts on the same topic by different people or by the same person as events develop. Academe Blog uses the WordPress platform—it is not a Reddit post, forum, or chat room—so a “thread” format would not make sense in our case. Of course, readers are not under obligation to comment on every post.
Repeating the previous explanation is of no real help. I am not, after all, stupid. However, the explanation does not make much sense to me — especially in this case, where a threaded approach would have incorporated several pertinent comments that would have integrated well with the “new” stuff and presented a more complete picture of the issues at hand.
Of course, if there is a TECHNOLOGICAL reason why people who have read the prior post, like Steven Lubet, can’t just post to an already-existing thread, then I’ll shut up.
I’ll shut up anyway since there seems to be no move on the part of administrators to rethink this issue. 🙂