- Researchers filing suit to challenge the fairness of rules governing research
misconduct prior to a determination of misconduct will have their cases summarily
- Researchers filing suit to claim imminent irreparable harm from an on-going
misconduct investigation will fail unless they plead and show that loss of
grant support is imminent and will exclude them from their occupation. Such
plaintiffs may suffer sanctions from the court unless they can at least demonstrate
a serious danger of having their grant money reduced, and that such reduction
would exclude them from their occupation.
- Tenured professors with guaranteed employment will face enormous obstacles
when trying to convince a court that they are in imminent danger of losing
- On the other hand, if found guilty, tenured professionals can expect to
see universities, especially public institutions, make OSI misconduct determinations
(and similar actions by other agencies) grounds for tenure revocation. This,
after all, is only a logical extension of the current practice of using success
in the grants business as the yardstick for granting tenure.
- Certain employees, such as research directors on annual contracts, may be
able to convince a judge that they will be excluded from their occupation
should their access to grants be "stripped away" during misconduct investigations
or hearings. Their remedy, however, may not permanently derail of the investigation.
At most, it will enjoin whatever aspects of the investigation (for example,
leaks in the ALERT system) that created the imminent danger of irreparable
harm to their positions.
- A judge may not be sympathetic toward plaintiffs with little or no value
as teachers or academic administrators in their university or elsewhere since
the harm is not caused only by a misconduct investigation.
- The most favorable case for research professionals involves a young professor
as s/he begins research and teaching in a tenure-track appointment. It would
be in the interest of such individuals to have success criteria in the "grants
business" spelled out in his or her annual employment contracts. Such individuals
might be faced with non-renewal of their contract by a misconduct investigation
and unable to find alternative employment due to their lack of experience.
This is the sort of imminent irreparable harm that might move a judge to provide
relief by enjoining the source of potential harm.
- Misconduct proceedings are going to become longer and more burdensome. All
but the wealthiest will find that they are unable to afford this newly granted
right to be due-processed. Even without court action, the cost of representation
during a misconduct investigation can easily exceed $50,000, payable in advance.
With court action, the amount could quadruple. Will universities pay the costs
of defending their professors? Will future grants have a new budget line for
misconduct defense? Many institutions already have a history of refusing to
support faculty members when they are under attack. Indemnity clauses in employment
contracts may become a new status symbol for universities and researchers
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