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UMass Medical School threatens faculty who indirectly 'contribute' to capital punishment

Policy change justified by racial and ethnic considerations, according to provost's memo.

Updated: September 26, 2021 - 11:25pm

A public university medical school is banning teaching faculty from engaging in any activity that "could" be connected to capital punishment or "render technical advice" about executions.

The University of Massachusetts Medical School is also requiring faculty to "acknowledge and abide by" its new position that "failing to actively oppose the current state" of capital punishment may hurt students, staff and patients of certain races and ethnicities.

School of Medicine Vice Provost Anne Larkin announced the change internally two months ago, citing an ethics opinion from the American Medical Association (AMA) published in 2016 and reaffirmed this year.

The memo was apparently only made public last week, when the Foundation for Individual Rights in Education (FIRE) warned the med school it's violating the First Amendment rights of faculty. 

"Such a policy could be easily redeployed to censor faculty on any number of controversial issues, including abortion care and physician-assisted suicide," according to a Sept. 9 letter to Chancellor Michael Collins from Adam Steinbaugh, director of FIRE's Individual Rights Defense Program.

The policy endangers both faculty who disagree with the school's position and those who might publish research on "which manufacturers' drugs are more likely to result in a painful execution," which Steinbaugh said governments could consult in a bid to avoid Eighth Amendment legal challenges, regardless of the faculty member's intent.

Med school spokesperson Mark Shelton told Just the News it had no comment about FIRE's criticisms. The AMA declined to answer how it feels about its ethics opinion being used to justify a policy that squelches faculty speech, but said physicians who "participate in capital punishment take an active role as agents of the state, not as advocates of patients, even if their intent is to minimize suffering."

The Association of American Medical Colleges "does not prescribe specific policies for its member medical schools," Lisa Howley, senior director of strategic initiatives and partnerships, said in an email. She didn't answer whether it knows how many med schools have policies similar to that of UMass Med. FIRE told Just the News it doesn't know.

UMass Memorial, the hospital affiliated with UMass Med, is known for another speech-related controversy this year. 

Nurse Therese Duke was recorded getting punched in the face by a security guard in Washington, D.C., with a group of fellow President Trump supporters a day before the "Stop the Steal" January 6 rally. Her daughter publicly identified Duke and accused her mother of harassing a black woman.

Several hours after UMass Memorial said Jan. 8 it was investigating whether any employees "may have been involved in the violence" at the Capitol, the hospital announced that a "caregiver" was "no longer a part of our organization." Duke told the Boston Herald she felt "forced" to quit after being publicly outed but did not specify how.

'Violent instrument of institutional racism'

The AMA opinion cited by Vice Provost Larkin says "a physician must not participate in a legally authorized execution," and gives a lengthy list of behaviors that "contribute to the ability of another individual to directly cause the death of the condemned."

The only one that appears to cover indirect participation is "[r]endering of technical advice regarding execution," which Larkin specifically quotes in the memo. "This includes, but is not limited to, providing such information to governments engaged in execution by lethal injection," she wrote.

"It is our position that the stark racial inequities in the implementation of the death penalty in the US are so egregious that even lawful activities that could enable governments in some way to perform executions is contrary to the professional standard for SOM [School of Medicine] teaching faculty," the memo says. 

"We see capital punishment as a violent instrument of institutional racism and support all efforts to see it ended," and "SOM deeply regrets the fact that these prohibitions have not been stated explicitly prior to now."

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The med school's new policy, which implicates faculty speech as both employees and citizens, runs contrary to both the First Amendment and its own Academic Personnel Policy, Steinbaugh wrote to Chancellor Collins.

He cited the past 20 years of Supreme Court and federal appeals court precedents on academic speech, especially matters of public concern, most recently this year when the 6th Circuit sided with a professor who refused to use a student's preferred pronouns.

Its academic freedom promises are contractually binding, and it may not impose "professional standards" on statements made as a citizen, according to Steinbaugh.

The policy makes explicit that its examples of prohibited conduct are not exhaustive, making "no effort to otherwise delineate its outer contours," he said. It affects "a great deal of speech that may only theoretically contribute to the implementation of capital punishment."

The only bone thrown to the "efficient and effective operation of a medical school" is Larkin's claim that some populations "may be morally opposed to research or speech which contributes to the ability of state actors to carry out capital punishment," according to Steinbaugh.

Under this rationale, "administrators in conservative states might be pressured to limit faculty expression that advances abortion," he said, pointing to North Dakota lawmakers' efforts to restrict state universities from partnering with abortion-supporting entities under a matching grant program.

The med school must retract or revise the policy and commit to not punishing faculty "who merely exercise their First Amendment rights," he said, asking for a response by Sept. 24.

UMass Med is identified by as the second-easiest med school in the U.S. based on acceptance rates.

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