The ethics of peer review. (Perspectives).

WHAT LESSONS CAN WE LEARN about professional ethics and peer review from the recent failures of some of our sister professions, the accounting and legal professions and the clergy? George Soros (2002), analyzing what went wrong over the last ten years in our financial markets leading to extensive corporate fraud, identifies two specific elements: "a decline in professional standards and a dramatic rise in conflicts of interest. And both are really symptoms of the same broader problem: the glorification of financial gain irrespective of how it is achieved."

Soros believes that the independent ethical principles and social concerns of the professions serve as the anchor that keeps markets stable against unrestrained self-interest. In the 1990s too many members of the accounting and legal professions, drawn toward financial gain, did not maintain their independent ethical principles and judgment. Rather than act as a constraint against excess, they facilitated unrestrained self-interest. The peer culture of the elites in both professions shifted away from playing a mediating role with respect to client demands to pressing for maximum client advantage.

These failures of peer culture and professional independent judgment have been costly to both the accounting and legal professions. The Congress, reflecting public outrage, enacted the Accounting Industry Reform Act (Sarbanes-Oxley), essentially federalizing the regulation of the accounting profession under the Public Company Accounting Oversight Board. The accounting profession is no longer a peer review profession. The same legislation calls for the Securities and Exchange Commission (SEC) to promulgate rules that also federalize significant aspects of the corporate law practice dealing with public companies. The SEC's rules go farther than the legal profession's own rules in creating duties to report corporate wrongdoing.

In the recent child abuse scandals, significant numbers of clergy in the Roman Catholic Church failed to create a peer culture of high professional standards and peer accountability. The resulting public outrage also has led to a substantial loss of peer review autonomy for the Catholic clergy.

These derelictions in our sister peer review professions and the consequent loss of professional autonomy and self-regulation provide both a warning to the academic profession and an incentive for a self-audit of our profession's ethics and peer culture. A self-audit begins by clarifying the responsibilities of the profession and then articulating the first principles of academic ethics.

Responsibilities of a learned profession

In the tradition of the learned professions, society and members of a profession form an unwritten social compact whereby the members of a profession agree to restrain self-interest, to promote ideals of public service, and to maintain high standards of performance in the area of the profession's fiduciary duty to society. In return, society allows the profession substantial autonomy to regulate itself through peer review. The ethics of each profession are descriptive of the profession's duties under the social compact. To support the social compact and its autonomy, a profession must develop clear principles of professional conduct and create peer collegia of both high aspiration in terms of professional ideals and effective peer review to maintain minimum professional standards of competence and ethical conduct.

In each generation, a profession must renew the social compact to reassure the public that their interests are being served and that the profession may be trusted with high public purposes in its area of fiduciary responsibility. This generational renewal for both the public and those entering and currently in the profession requires (1) comprehensive, accessible, and clear codes of professional ethics, (2) continuing education of the profession and the public on professional ethics and the social compact, and (3) ethical leadership from within the profession to create peer cultures of high professional ideals and effective peer review.

First principles of peer review

The fiduciary responsibility or mission of higher education is the creation and dissemination of knowledge. Knowledge creation includes the scholarship of discovery, integration, application, and teaching. Dissemination of knowledge in higher education involves a unique kind of teaching that is closely related to knowledge creation and different from teaching in secondary education, that is, the teaching of the discipline of dissent. The discipline of dissent, in Eric Ashby's definition (1968-69), requires that the student become familiar with both what is already known about a subject and how to question that orthodoxy. Teaching at this level develops in the student (1) an understanding of first principles in a discipline(s), (2) a critical analytical ability, and (3) an understanding of the methods for resolving disputes within and among the disciplines.

It is the university's unique mission of creating knowledge and teaching the discipline of dissent that justifies our tradition of academic freedom (the conditions of employment necessary for faculty to achieve the mission), peer review as the linchpin of academic freedom, and shared governance as the negotiated mechanics of peer review. In this tradition, knowledge is the evolving critical consensus of a decentralized community of inquirers who adhere to the principle that knowledge claims must be capable of being checked and have withstood checking, regardless of the source of the claim or the identity of the inquirer. The academic profession constitutes a significant proportion of the decentralized community of inquirers on which knowledge creation depends.

By virtue of the academic profession's special competence in the community of inquirers, including the knowledge of existing scholarship and the mastery of the techniques of investigation and validation in the disciplines, the profession sought unique conditions of employment that would protect a professor's right to offend in the pursuit of knowledge (Hamilton 2001). Challenging existing orthodoxy has always been risky in employment settings. Academic freedom describes these conditions of employment, whereby college and university employers, acknowledging higher education's unique mission of creating knowledge and teaching the discipline of dissent, have granted exceptional vocational freedom of speech to professors in research, teaching, and extramural utterance without lay interference, on two conditions: (1) that individual professors meet correlative duties of professional competence and ethical conduct, and (2) that the faculty as a peer collegium also has correlative duties of peer review, both to moni tor and maintain minimum standards for each professor and to create a culture of high aspiration with respect to professional ideals.

This tradition of faculty self-governance in peer review of professional competence and ethical conduct makes academic freedom unique, not the tenure system that has many parallels in other employment settings. Peer review is the linchpin of academic freedom.

The tradition of shared governance is a corollary of, and necessary condition for, the concepts of academic freedom and peer review. What do rights of freedom to research and freedom to teach mean where peer review in the context of a discipline (not the governing board or president) determines competence and ethical conduct? The peer review paradigm means that peers define both the minimum standards and the professional ideals that define competence and ethical conduct in the discipline for both professors and students.

Structure of peer review

While effective peer review is the linchpin of the social compact and professional autonomy in the learned professions, its structure differs among the professions for historical reasons. For the academic profession, the diagram describes the major players in peer review.

The duties of peer review

In the diagram at the right, items 1 to 3 under Peer Review in the College or University put responsibility for peer review on the faculty of an institution. This responsibility is further defined by the American Association of University Professors (AAUP). While not the only source for standards of professional conduct, AAUP statements have played the most substantial role in defining the tradition of the rights of academic freedom and the correlative duties of both individual faculty members and the faculty as a peer collegium. The AAUP tradition provides that the faculty has the following duties of peer review:

1. to be the source for the definition and clarification of standards of professional conduct and to take the lead in ensuring that those standards are enforced;

2. to determine in the first instance when individual professors inadequately meet their responsibilities of professional competence and ethical conduct;

3. to be honest and courageous in their duty to detect and eliminate the incompetent during the period of probation;

4. to strive to be objective in professional judgment of colleagues;

5. if faculty members have reason to believe a colleague has violated some standard of professional conduct, to take some initiative to inquire about and, if the inquiry so justifies, to protest against apparently unethical conduct;

6. not to discriminate against or harass colleagues;

7. to show due respect for the opinions of others;

8. to respect and defend the free inquiry of colleagues;

9. to assume a more positive role as guardian of academic values against unjustified assaults on academic freedom from within the faculty itself;

10. to accept their share of faculty responsibilities for the government of their institution;

11. recognizing the particular obligation of professors as citizens engaged in a profession that depends upon freedom for its health and integrity, to promote conditions of free inquiry and to further public understanding of academic freedom; and

12. to create a peer culture of high aspiration with respect to the ideals of the profession.

Does peer review fulfill the social compact?

We do not know with clarity the degree to which peer review actually works, especially for tenured faculty. There is much reliance on anecdote and personal experience to fill in this gap in research.

There is some literature suggesting that the peer review model of the professions may be based on the false premise that a collegium will, in fact, supervise itself. In reality, a collegium may have a strong tendency to become a "delinquent community." Over 200 years ago, Adam Smith in Wealth of Nations noted that professors at Oxford "make a common cause, to be all very indulgent to one another, and every man to consent that his neighbor may neglect his duty, provided that he himself is allowed to neglect his own" (1994).

In 1975, Eliot Freidson studied a large medical group to observe how the day-to-day work of medicine was controlled by the physicians. The doctors formed what Freidson called a collegium, which insisted that self-government was solely its own legitimate function, but which left "individuals free to work in their own ways within the very broad limits set by obvious unethicality or incompetence." Freidson found that the collegium consistently abdicated the role of exercising organized sanctions, permitting "all but gross and obvious deviance in performance, so long as inter-collegial relations remained manageable."

The collegium's rules of etiquette, in Freidson's view, took priority over standards of performance and accountability and "discouraged critical attitudes toward colleagues, the communication of critical information to others about the performance of colleagues, the discussion of critical evaluations with colleagues, and the undertaking of collective social control." Large numbers of offending actions remained unexamined and unacknowledged, and often the offender remained unaware of the fact that his or her action was offensive to others. Freidson noted the paradox that physicians in the group would complain of others' professional misconduct but then find fault with and resist administrative efforts to address the issue.

These rules of silent acquiescence in the face of professional misconduct were designed, in Freidson's analysis, to leave each member of the collegium a maximum amount of autonomy in work performance and behavior. To describe this collegium, Friedson borrowed from the sociological literature the term "delinquent community."

Existing data on the academic profession lend some support to Freidson's observations. Faculty members (Swazey, et al.) in a 1993 Acadia Institute survey of 2,000 professors in chemistry, civil engineering, microbiology, and sociology reported substantial differences between their espoused values and the actual practice in their departments. In principle, 55 percent of the faculty respondents believed that they should, to a great extent, exercise responsibility for the conduct of their colleagues, but "just 13 percent judge that faculty in their department exercise a great deal of shared responsibility for their colleagues' conduct, whereas 30 percent hold that there is very little or no manifestation of collegial responsibility." The authors conclude that "our survey data, and statements by faculty and graduate students whom we have interviewed, challenge the idea that faculty actually practice an ethic of collective governance."

Jonathan Knight and Carol Auster (1999) surveyed faculty in 1998 concerning the likelihood that a professor who is told that another professor has engaged in unprofessional conduct will take up the matter with the accused or an administrator. Sixty percent of the respondents reported that students had complained to them that another professor's conduct was unethical, and 58 percent reported the same thing happening with regard to colleagues complaining about other faculty. Slightly more than half (54 percent) who characterized the complaints of students as "very serious" pursued the matter with the subject faculty member; under half of the respondents (45 percent) took the same step regarding complaints from other faculty members. Fifty-two percent of the respondents had expressed concern to an administrative officer that a faculty member may have violated standards of professional ethics. The Knight and Auster study has both good news and bad news: The good news is that roughly half of the respondents took their peer review obligations seriously; the bad news is that almost half did not, even when the alleged misconduct is "serious."

Based on 4,110 responses in a 1999 study of graduate students in eleven arts and science disciplines from twenty-seven universities, Chris Golde and Timothy Dore (2001) present findings similar to those of the 1993 Acadia study. Golde and Dore find, "The data indicate that the ethical dimension of faculty and professional life--how to act responsibly and in the best interest of the profession, is not, as often assumed, part of graduate training." The authors conclude that "[t]he health of the academic profession, with norms of self-regulation and peer review, depends on shared values and practices. Students told us that they are unclear about many of the customary practices that rely on a shared understanding of ethical behavior. Those responsible for doctoral education cannot assume that norms and practices are routinely and informally handed down."

How to foster effective peer review

These data indicating a high degree of misunderstanding of the social compact and the correlative duties of peer review are predictable on two grounds. First, the academic profession still lacks a comprehensive, accessible, and clear code of professional ethics. The AAUP has issued several applicable statements, but they suffer from vagueness and lack of comprehensiveness and clarity. Approximately one quarter to one third of the disciplinary associations do have comprehensive, clear, and accessible codes of ethics, but many of the disciplines have very abbreviated ones. The disciplinary focus of the existing comprehensive codes contributes to the fragmentation of the academic profession and the loss of a sense of academic citizenship across the disciplines. Umbrella academic organizations like the AAUP, the American Council on Education, or the Association of American Colleges and Universities should step forward to draft a comprehensive, clear, and accessible model code of ethics for the profession. The dis ciplines could then adopt supplementary codes to address problems unique to a discipline.

Second, while a few graduate programs require students to take a course on professional ethics, in general the academic profession requires no ethics education for graduate students or new professors, let alone continuing ethics education for veterans. Professors are socialized into the disciplines, not into the academic profession. Many poorly understand the traditions and ethics of the profession, particularly the profession's collective duties. Keetji Ramo (1999) concludes that the professoriate has yet to find an effective, universal means through which to systematically imbue its future members with a sense of academic culture that cuts across disciplinary lines. Individual professors fail to identify with the professoriate as a professional culture.

Each faculty should require both new and veteran professors to take a course from time to time on academic tradition and academic ethics. Again, the national academic organizations should step forward to develop effective educational materials for this purpose. We do have some experience teaching research ethics in the sciences and professional ethics in the law schools. The most effective strategy has been a problem-oriented approach where the teaching methodology builds the skills that academic ethics and effective peer review require. The participants discussing the problem should see themselves as the peer collegium trying to address the issues together. The discussion should develop the following skills:

1. Recognizing ethical and shared governance issues in a professional context;

2. Analyzing a problem based on the tradition and ethics of the profession; and

3. As a peer group, discussing, questioning, disagreeing with civility, and formulating group standards, strategy, and consensus.

Conclusion

The failures of our sister professions and the consequent loss of their peer review autonomy is a warning to the academic profession. In each generation of our profession, we must do better at renewing the social compact. This generational renewal requires a comprehensive, clear, and accessible code of professional ethics and continuing education of the profession and the public (including boards of trustees) on academic ethics and the social compact. National academic organizations and senior faculty must step forward to provide the needed ethical leadership to accomplish these two goals.

The last sentence of the AAUP's founding document, the 1915 Declaration of Principles on Academic Freedom and Academic Tenure, urges the profession to honor the social compact: "It is conceivable that our profession may prove unworthy of its high calling, and unfit to exercise the responsibilities that belong to it. But it will scarcely be said as yet to have given evidence of such unfitness. And the existence of this Association... must be construed as a pledge, nor only that the profession will earnestly guard those liberties without which it cannot rightly render its distinctive and indispensable service to society, but also that it will with equal earnestness seek to maintain such standards of professional character, and of scientific integrity and competency, as shall make it a fir instrument for that service.

Are the peer collegia of our profession maintaining "with equal earnestness" high standards of professional character, integrity, and competency?

WORKS CITED

Ashby, Eric. 1968-69. A Hippocratic oath for the academic profession. Minerva, 7:3, 64-65.

Freidson, Eliot. 1975. Doctoring together: A study of professional self control. New York: Elsevier.

Golde, Chris and Timothy Dore. 2001. At cross purposes: What the experiences of today's doctoral students reveal about doctoral education.

www.phd-survey.org.

Hamilton, Neil W. 2001. The ethics of peer review in the academic and legal professions. South Texas Law Review, 42:2, 227-300.

Knight, Jonathan and Carol Auster. 1999. Faculty conduct: An empirical study of ethical activism. Journal of Higher Education, 70:2, 188-210.

Ramo, Keetjie J. 1999. Assessing the faculty's role in shared governance. Washington, DC: American Association of University Professors.

Smith, Adam. 1994 (originally published in 1776). The Wealth of Nations. New York: The Modern Library.

Soros, George. 2002. Busted: Why the markets can't fix themselves. New Republic, Sept. 2, 18-21.

Swazey, Judith P., Karen Louis, and Melissa Anderson. 1993. Ethical problems in academic research. American Scientist, Nov.-Dec., 542-53.

RELATED ARTICLE: THE STRUCTURE OF PEER REVIEW IN THE ACADEMIC PROFESSION

Individual Professor

Peer Review in the College or University

1. Peers in the department, or in the case of professional schools, the faculty, create a culture of some level of professional aspiration and minimum standards of professional conduct.

2. Peers make the initial determination on appointments, retention, promotion, tenure, and post-tenure review.

3. Peers make the initial determination on substantial sanctions for incompetence or unethical conduct.

4. Department-level administrators, who are peers in the discipline, make initial decisions on annual performance reviews and salary and other benefits that follow from that evaluation.

5. College or university administrators and governing boards, giving deference to the faculty's academic judgments, review all decisions on appointments, retention, promotion, tenure, disciplinary sanctions, and performance reviews.

Peer Review by the Academic Profession Other than in Employment

1. Peers in the discipline critique published research.

2. Peers in the discipline can bring to bear informal pressure on unethical conduct or incompetence in published research.

3. Peers in disciplinary associations, with few exceptions, do not investigate or impose sanctions concerning charges of violations of disciplinary ethics.

4. Peers in the disciplines make determinations in peer-review processes on research submitted for publication, grant proposals, opportunities to present papers at conferences, and recognition in the discipline. Peers in the disciplines also provide letters of recommendations and outside reviews of scholarship for promotion and tenure.

5. Peers in disciplinary associations, in some cases, draft and adopt codes of ethics.

6. Peers in accrediting organizations determine whether a department, faculty, or institution meets academic standards.

NEIL W. HAMILTON is professor of law at the University of St. Thomas (MN). His Academic Ethics: Problems and Materials on Professional Conduct and Shared Governance was recently published by ACE/Praeger.