Will the Federal Government Finally Deregulate Oral History?
For the past twenty years, university-based oral historians—both faculty and students—have faced oversight by institutional review boards, or IRBs, committees designed to protect the rights and welfare of participants in “human subjects research.” In some cases, university administrators have threatened researchers with firing or denial of degrees for alleged infractions of IRB rules. More commonly, historians who seek to work within the rules have found their projects delayed, disrupted, and sometimes blocked outright by ethical codes and federal policies that seem poorly suited to the practices of oral historians.
This may be about to change. On September 8, 2015, sixteen federal departments and agencies jointly released a notice of proposed rulemaking that would amend the federal regulations (known as the Common Rule) that govern IRBs. Among many other reforms the new rules would, the notice explains, “explicitly exclude oral history, journalism, biography, and historical scholarship activities that focus directly on the specific individuals about whom the information . . . is collected.” If enacted as written, the proposal would resolve the longstanding acrimony between IRBs and historians.
In theory, requiring outside, ethical oversight of oral history projects makes perfect sense. Oral historians have long recognized their obligations to their narrators, and the Oral History Association adopted its first guidelines in 1968. Today, the association’s “Principles and Best Practices” demand that historians “insure that narrators voluntarily give their consent to be interviewed and understand that they can withdraw from the interview or refuse to answer a question at any time,” and that an interviewer “avoid making promises that cannot be met.”
The importance of such safeguards became especially clear in 2011 when the U.S. Department of Justice, on behalf of British authorities, secured a subpoena for tapes and transcripts of interviews with participants in the Troubles of Northern Ireland. The interviewers had thought that by depositing the materials across the ocean at Boston College, they could assure their narrators of confidentiality, even as participants spoke about unsolved murders. But treaties span oceans, and Boston College surrendered eleven recordings to the Police Services of Northern Ireland, while sending others—not yet the subject of subpoenas—to the narrators, who could choose to destroy them. Years after the first subpoena, researchers, participants, and Boston College librarians were blaming each other for the fiasco.
Some observers take such failures as evidence of the need for oversight of oral history, perhaps by IRBs. In 2012, Martin Meeker, a historian with the Regional Oral History Office at the University of California, Berkeley, argued that “undergoing IRB review alone would not be enough to ward off lawsuits. However, working closely with our IRB and abiding by its recommendations does, we think, provide a measure of protection” by securing the aid of an office “expert in litigation that emerges from research” and by assuring “in the event that we are sued, the buck need not stop at the desk of the program’s director, which is key when thinking about the long-term viability of an oral history program on an intensely political campus such as Berkeley.”
In practice, IRBs are as likely to hamper a project as to help it. While Meeker is right that interviews can raise legal issues, IRBs are composed not of legal experts in privacy law, but of fairly haphazard assortments of professors and outsiders with minimal training even in research ethics, much less law. Empirical studies of IRBs across disciplines (Robert Klitzman’s Ethics Police?  is the latest) have cast doubt on their ability to reliably monitor even the biomedical studies for which they were originally designed, much less the qualitative work of social science.
The requirements that IRBs do impose are often irrelevant or downright detrimental to the teaching and practice of oral history. In 2013, Carl Kramer, the retired director of the Institute for Local and Oral History, Indiana University Southeast, complained that his university required potential interviewers to complete “a national training program for human subjects research that was oriented toward biomedical and psychological standards, including units on dealing with pregnant women and fetuses [and] medically-oriented conflict of interest issues. It took me approximately seven hours to review the tutorial and take the exam.” Feeling that it would be unfair to impose such a time-wasting training program on his students, he gave them the option of taking a separate exam instead. Half the students chose this option, and thus completed their oral history course without ever having the chance to interview someone.
Historians who do slog through the long, irrelevant training and submit an application often find themselves swatting away bad advice. Most commonly, IRBs may expect that narrators’ identities be hidden, and that recordings and transcripts be destroyed at the end of a project. These practices are common for many disciplines, such as psychology, that seek to study representatives of broader groups and care less about the specific experiences of individuals. But for oral historians, for whom capturing those specific experiences is the aim of their enterprise, these requirements are nonsensical. Similarly, IRBs accustomed to the standardized scripts and questionnaires used by other disciplines have rejected plans by oral historians to tailor questions to each narrator.
Another major point of disagreement concerns the possibility that giving an interview will harm a narrator. IRBs are pledged to the principle of beneficence, which under some interpretations means “do no harm.” But, as oral historian Linda Shopes noted in 2000 during the last round of IRB debates, historians take no such pledge. “What is at issue is the notion of critical inquiry,” she explained, “inquiry that does challenge, that may be adversarial, that may even ‘expose,’ as interviews with Klansmen and women and with Nazi collaborators, for example, have done. Yet current regulations, interpreted narrowly, can have a chilling effect on historian's freedom to pursue difficult topics.”
Although isolated discussions of IRB oversight of oral history date back to the 1970s, only in the 1990s did large numbers of university IRBs begin asserting jurisdiction over oral history projects. At first, historians hoped that they could work within the system by explaining historians’ methods and ethics to IRBs, who would then simply enforce what historians should have been doing all along. But that proved difficult given the regulators’ assumptions about harms, anonymity, and other key concepts. By 2000, Shopes and Donald Ritchie, representing the American Historical Association and the Oral History Association, respectively, negotiated with the federal Office for Human Research Protections (OHRP) to interpret the regulations to exclude oral history entirely. In 2003, it briefly seemed as though they had succeeded, but the OHRP followed up with another, contrary interpretation, and then announced that it would not reconcile the differences.
In the following years, individual universities—including Columbia, Princeton, the University of Texas at Austin, and the University of Michigan—adopted policies specifically relieving historians of the need to consult an IRB, although in some cases these policies have quietly disappeared from university websites. Similar policies were adopted by the U.S. Army and the Smithsonian Institution. For the most part, though, academic historians seemed to be stuck with ambiguous regulations requiring them to submit to inappropriate oversight.
Then in July 2011, the Department of Health and Human Services issued an advance notice of proposed rulemaking (ANPRM), the initial step in what could become the first major revision of human subjects regulations since 1981. Much of the ANPRM consisted not of concrete proposals but of questions posed to anyone who cared to comment; even the choice of questions suggested the range of possibilities being considered by regulators. For historians, the biggest news was question 25, which asked: “Are there certain fields of study whose usual methods of inquiry were not intended to or should not be covered by the Common Rule (such as classics, history, languages, literature, and journalism) because they do not create generalizable knowledge and may be more appropriately covered by ethical codes that differ from the ethical principles embodied in the Common Rule?” After eight years, federal officials were again dangling the possibility that history and related fields could escape regulation altogether.
Historians seized the moment. In the fall of 2011, they responded to question 25 with a call for freedom from regulation. As Alice Kessler-Harris, then president of the Organization of American Historians, wrote at the time, “resentful professors have been asked to tell IRBs who they want to interview and why. Assistant professors who have not asked for prior permission have been told they cannot publish articles on which they have worked for years. Graduate students have been told to alter the questions they want to ask.” Historians had had enough. Better still, they found allies. In January 2014, a committee appointed by the National Research Council recommended that human subjects regulations not apply to “interviews with individuals for the purpose of establishing a historical record.”
The September 2015 notice of proposed rulemaking accepts these arguments. For historical research it notes, “the ethical requirement is to provide an accurate and evidence-based portrayal of the individuals involved, and not to protect them from public scrutiny. Therefore, the protections afforded to individuals by the Common Rule seem unhelpful in furthering the aforementioned ethical goal in this context. Additionally, these fields of research have their own codes of ethics, according to which, for example, consent is obtained for oral histories.” In other words, historians, whether working with interviews or documents, would remain subject to the ethical constraints they have crafted for themselves. But they would be free from inappropriate federal regulation.
The proposal could still be modified, however, and the Organization of American Historians is likely to join other scholarly historians in response during the public comment period, which runs until 5pm on December 7. Individual historians may comment at www.regulations.gov, using docket ID number HHS–OPHS–2015–0008. This public comment period is an important opportunity for historians to applaud the proposal as it now stands and to oppose any modification.
Zachary M. Schrag is a professor of history at George Mason University and the author of Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965–2009 (2010). Since 2006 he has covered IRB debates on his Institutional Review Blog.