After Removal from Grant Follows Public Criticism of Oil Industry, University of Alaska Professor's Retaliation Claim Dismissed
October 21, 2009
The University of Alaska has dismissed a retaliation claim brought by Professor Richard Steiner, an outspoken critic of the oil industry. Professor Steiner's claim concerned his removal from a $10,000 research grant administered by the National Oceanic and Atmospheric Administration (NOAA) in 2008, following a press conference held by Steiner in which he criticized NOAA and the University of Alaska (UA) for allowing Shell Oil to be a sponsor of a university conference focusing on offshore development. Following his removal from the NOAA's "Sea Grant," which supplied part of Steiner's salary, UA replaced the funds with its own.
Steiner's grievance, backed by the faculty union United Academics, alleged that his removal from the NOAA Sea Grant program was direct retaliation for his criticism of the oil industry. Steiner's grievance also alleged that he had been subjected to harassment and had his office relocated against his wishes as a result of his public comments. UA's decision, issued by general counsel Roger Brunner, rejected Steiner's allegations.
The denial appears to end Steiner's appeals, as The Chronicle of Higher Education reported yesterday that Steiner did not believe the faculty union would seek to enter binding arbitration. However, Public Employees for Environmental Responsibility (PEER), a non-profit organization advocating on Steiner's behalf, told the Associated Press that they planned to send a formal petition to the Obama administration "to make sure that people who receive NOAA grants aren't constrained from speaking out as scientists or as citizens."
From FIRE's perspective, Steiner's case is troubling and complex. Troubling, because it seems uncontested by either the NOAA or UA that the funding was removed from Steiner as a result of his speech on matters of public concern. That's obviously cause for great concern, particularly in a situation such as this one, where a speaker like Steiner is an expert in his field and thus uniquely equipped to inform the public debate. In funding scientific research, it seems troubling that the government also asks that researchers not speak publicly about the conclusions suggested by their work when such conclusions impact the public.
The case is complex, however, because the NOAA may attach reasonable conditions to its research grants—including, in this case, strong recommendations that grant recipients "not take positions on issues of public debate." By engaging in advocacy, no matter how relevant or important, Steiner disregarded the grant's recommendations, and the NOAA's subsequent efforts to get him removed from the grant were both successful and unsurprising. Further complicating the issue is the fact that Steiner does not have a "right" to a NOAA grant, at least not in the same way that he has a substantial property interest in his employment by UA as a tenured professor, which means that his grant may be removed without the due process considerations that would be invoked were UA to have fired him. Indeed, had he been fired, his retaliation claim would likely have been entirely meritorious. But the removal of grant money at the agency's request is trickier.
UA argues in its decision that the NOAA's concern about Steiner's public criticism was not related to the viewpoint he was expressing, but rather his subsequent ability to effectively perform the funded task after engaging in advocacy. As such, UA argues, the NOAA's concern was legitimate, and removing Steiner from the grant was an issue of performance, not of the content of his speech. Steiner insists otherwise. Without evidence of a double standard at work for professors receiving NOAA grants and praising instead of criticizing the oil industry—a double standard that Steiner says exists—it's difficult to say, although I have my strong suspicions.
It is worth noting again that UA restored Steiner's funding following the removal of the NOAA grant, although Steiner's grievance argues that removal of the grant has other costs, as well, including a loss of access to the grant's network. The UA decision notes that Steiner admitted that no one at the university had asked him to stop speaking his mind, nor was he planning on doing so. But the larger question is, in a sense, not whether the NOAA, as a government agency, may ask UA to remove Steiner from the grant—it may—but whether it should, and whether UA should acquiesce in turn. Given that government funding makes up a very substantial part of total funding of scientific research, if every professor engaged in scientific research and reliant on government funding is required to be "neutral" or otherwise silent about the policy implications suggested by their research, the government impoverishes and skews debate by imposing such requirements (or, like the NOAA here, recommendations). This seems antithetical to the public interest, if within the government's rights as grantor.
Interestingly, PEER's press release states that the organization is "preparing a formal rulemaking petition later this month for submission to NOAA Administrator Jane Lubchenco seeking clarification of the Sea Grant no-advocacy guidance," arguing that "receipt of a federal grant should not be cause for suspending First Amendment free expression rights or for cancelling the moral obligation of scientists to speak up to protect our resources."
FIRE will keep Torch readers posted.