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An Off-Color History: How The Color of Law Misrepresents
The Origins of Racial Segregation
Richard Rothstein's Color of Law[1] has made quite a splash and is widely praised for its no-holds barred look at American racism. Rothstein has toured the country lecturing about the book, has been interviewed on National Public Radio and other outlets many times, and has been widely praised and cited by mainstream liberals – and even some on the left.
Rothstein is correct to attack the systematic racism that has long plagued this country and to lay bare the way our cities have been racially segregated – and continue to be to this day. This is not exactly news, but it is an important truth that bears repeating for every generation. So, to the extent that it helps educate the young and especially white Americans about certain harsh realities, The Color of Law serves a good purpose. This country's sorry record on race needs to be aired as an essential part of our urban history.
On the other hand, Rothstein is wrong in ways that mislead readers about the causes and course of racial segregation. His errors of theory and fact seriously undermine the value of the book as a work of historiography and are a disservice to progressive politics today. Indeed, Rothstein ends up bolstering conservative positions on several fronts, starting with the idea that racism is not a structural element of US civil society and that government is the problem not the solution. Whatever his good intentions, Rothstein's dubious scholarship has some very bad, if unintended, consequences.
Rothstein's central argument – as stated in the subtitle of the book – is that the federal government imposed the modern racial order on this country in the 20th century, particularly residential segregation. The first fundamental error of this thesis is that it underestimates the power of White Supremacy as the ruling order of the United States from its foundation. Rothstein spends precious little time on the history of white dominance over American society and how it was imposed in the 18th and 19th centuries, with and without the aid of governments. The racial order of this country goes back to the colonial era and has been reinforced again and again by people of European heritage looking to strengthen and defend White Privilege. They have done so by keeping people of color – natives, Africans, Asians, and Latins – "in their place" economically, legally and geographically.
Rothstein could be forgiven for not replaying the history of racism in the US to concentrate on the 20th century, if he did not commit the sin of blithely dismissing the theory of "structural racism" derived from years of study of American history by race scholars.[2] In its place he favors a purely legal theory of de jure racial segregation (p. xv). This approach naively reproduces prevailing legal doctrine that harkens back to Classical Liberalism, in which law is the foundation of the modern social order and that order is arrived at through a "social contract".[3] This is the origin myth of bourgeois political theory, but it bears little relation to the reality of how modern state power has been constructed over the centuries.
Here lies Rothstein's second fundamental error, his theory that the state establishes the rules and civil society follows along. It is not news that US law and government have helped to impose and support a racist order, including racial segregation; this has been a normal function of the American state for three centuries. The US Constitution, for example, included the 3/5ths rule for counting slaves and the federal government backed fugitive slave laws. But why did this happen? Because the politics of the time were deeply influenced by the power of southern planters, supported by northern merchants and a large percentage of the white people, south and north. It took years of abolitionist agitation, slave struggles and a Civil War to change that. Then, after a brief period of Reconstruction when the federal government supported black freedom and political rights, the southern landowners and their henchmen reinstituted black subordination throughout the states of the Old South. Bucking the racial order has been the exception, not the rule, of American governance.
Do states just make up the rules and then impose them on a reluctant people? No, laws, agencies and the whole apparatus of the state did not burst full-born like Athena from the head of Zeus; they were put in place piece by piece along with the development of modern capitalist societies and racial orders.[4] In the process, they have mostly conformed to the existing social order and the will of the powerful who dominate civil society – unless they are seriously challenged from below. Indeed, class systems and racial orders require states to back them up through law, regulation, policing and terror, or else the repressed may rise up and return the favor. At one point, Rothstein observes that, "Without our government's purposeful imposition of racial segregation, other [private] causes...would have [had] far less opportunity for expression." (p. viii). That is most certainly true, but that is precisely why all governments are called upon by private actors to enforce their preferences. Civil powers alone aren't enough.
There are, of course, dirigiste states that lord over civil society and dictatorships where a small clique uses the state for its own ends. But the U.S. is not Russia or Zimbabwe. Rothstein completely misunderstands how government works in the United States and how state policy relates to private power. American government is famously "federalist", meaning that it splits power between the federal government and the states, the states and local governments, and among a slew of local governments: counties, municipalities, and special districts. Furthermore, political representation is based geographically, so that, as Tip O'Neill famously said, "All politics is local". The virtue of US federalism is the way it makes government accessible and dispersed; the drawback is that it puts the state at every level in the thrall of parochial interests and local power structures. So if, in fact, American society is racist, then we would expect that governments from the local to the federal would be likely to represent the prevailing racial order.
Thus, in the end, Rothstein achieves the opposite of what he apparently sets out to do. Instead of indicting America's racial order, he lets White Supremacy off the hook for its foul deeds.
And by putting the blame chiefly on the state, he bolsters the long-standing conservative case against government (and liberal policy makers) as the cause of social malfunction. The upshot of bad history is that Rothstein ends up blaming mostly the wrong people – federal policy makers – rather than the wealthy and the capitalists who actually rule this country and its many levels of governments. This plays right into the hands of Fox News and conservative ideologues.[5]
Rothstein's wrongheaded approach undergirds the detailed history of 20th century housing policies that fills the bulk of The Color of Law. Again, his primary target is the federal government and the ways it enabled and even imposed segregation on localities in the 20th century. It is undeniable that federal promotion of zoning, mortgage guarantees and public housing mostly lined up with the prevailing practices of racial segregation and reinforced them in important ways, given the powerful reach of the feds and their money. But Rothstein's idea that this was imposed on reluctant localities is ludicrous.
This is not just a theoretical difference; Rothstein's empirics are faulty because he has to twist the facts to fit a bad theory. In order to makes the case that the federal government imposed residential segregation, he cherry-picks examples of government agencies refusing to approve projects where white liberals were willing to live with black families or white developers wanted to build integrated housing. Yes, there were such instances, but they are notable precisely for being exceptional efforts to break through the color line.
In reality, the record of urban politics in the 20th century shows white people and their leaders getting the segregation they wanted with the help of local, state and federal governments. Not only were laws and regulations written and enforced with white preferences in mind, the consequences of governments not going along were clear. If whites didn't get the segregated neighborhoods they wanted, they were quick to protest, riot and resort to violence. Rothstein notes a few such cases but passes over them too glibly.[6]
Furthermore, in telling the story of law and residential segregation, one cannot begin with public housing and zoning without first grasping the prior history of deed covenants, racial exclusion, and use restrictions reaching back to the 19th century, and without taking into account the power of the real estate industry as it developed in the early 20th century. Not only was racial segregation not new by the 1930s, it favored by upper class home owners and seen as the best business for an important sector of capital.
Deed covenants go back to the 1880s and grew out of the common law of nuisance. They were the first major way of protecting white and upper-class property from the intrusion of immigrants, industry and people of color. Covenants were built into the first large-scale developments of the 1900s and 1910s, such as Roland Park in Baltimore, the Country Club District in Kansas City, and St. Francis Woods in San Francisco. These were the work of the first "community builders", as Marc Weiss has dubbed them, who founded the powerful National Association of Real Estate Boards (NAREB), backed better planning, zoning and subdivision rules, and later created the Urban Institute. Most houses built before the 1960s still have such covenants on their deeds, even if they are now unenforceable.[7]
Zoning goes back even farther. The first racially-targeted land use restrictions, which were aimed at the exclusion of Chinese laundries, appeared in the 1860s in Modesto and San Francisco. The reason developers and their upper class customers turned to zoning in the early 20th century was that deed covenants proved to be too piecemeal to protect their territories of privilege effectively. The first zoning laws were explicitly racial, but that was overturned by the US Supreme Court in 1917. It was only after the court, in the Euclid v Ambler decision of 1926, said that zoning was not an unfair taking of private property that the new, improved system of spatial ordering became universal among city governments.[8]
The Euclid decision points to another reason for separating industry, workers, pollution and other undesirables from the neighborhoods of the upper classes. Covenants and zoning were meant to protect class privilege, the single-family home and, above all, real estate values. Rothstein is wrong to dismiss these as mere excuses for racial segregation. He underestimates the power of America's commercial culture and the way the homes serve financial purposes of property owners. Not only are developers keen on profiting from land value appreciation, home owners always have one eye on house prices.[9]
Nearly everyone of importance in city-building and public policy in the early 20th century agreed on the desireability of racial segregation, whether it was from outright racism, for keeping the peace or upholding land values.[10] It wasn't just "white folks" in general but the entire real estate industry leading the way: bankers, builders, and brokers, plus all the supporting cast of architects, landscape architects, civil engineers, lawyers, and urban planners. Even the most progressive of urban reformers, such as Catherine Bauer, Clarence Stein, and Henry Wright, tolerated racial segregation in housing and urban development.[11]
The consequence of this consensus was that when the New Deal policies of public housing, mortgage rescues and federal mortgage insurance came along in the 1930s, they were following in a long-established tradition of racial segregation; they did not invent it. Furthermore, the laws creating key programs like the Home Owners' Loan Corporation (HOLC), the Federal Housing Administration (FHA) and Federal National Mortgage Association (Fannie Mae) were passed (and written) with the help of NAREB and the mortgage banking industry. The chief economist of NAREB, Homer Hoyt, wrote the regulations for the FHA that included redlining as a means of minimizing risk for lenders and investors. As Weiss has observed: "Since the mandate was to stabilize homeownership and reduce long-term insurance risk from a purely financial and actuarial perspective, redlining made economic sense, even if it was immoral as social policy".[12]
I have a further objection to The Color of Law in that Rothstein treats the New Deal as if Franklin Roosevelt and the New Dealers were just another bunch of racist white folks and that's all there is to it. The book even features FDR in the frontispiece, portraying him as central to the story of American racism. This is nonsense and a serious misrepresentation of the New Deal and what it tried to do for Americans. To begin with, most New Deal leaders, including Harold Ickes, Frances Perkins, Harry Hopkins and Eleanor Roosevelt, were profoundly anti-racist, and they made serious efforts to defy white supremacy and segregation. Moreover, they were pretty much the first federal officials to do so since Lincoln and Reconstruction.
As a result, many New Deal programs like the Civilian Conservation Corps (CCC), Works Progress Administration (WPA) and public housing (under the Public Works Administration and the US Housing Administration) were not segregated at the beginning. The CCC, for one, was gradually forced to segregate its camps due to local pressure from southern and rural communities. The WPA built thousands of integrated recreation facilities, including swimming pools, and there is ample photographic evidence of integrated WPA work teams, especially in service projects like sewing rooms, classrooms and clinics. The CCC and WPA employed over a million African Americans and other people of color, who were paid the same regardless of race. The New Dealers were well aware of the plight of African Americans and targeted them with programs for farm loans, housing, schooling and more. It is especially galling that Rothstein starts his book with an attack on public housing, which the New Deal tried to build in quantity for the first time in US history and which provided tens of thousands of new homes for people of color. Public housing has always been a pariah in American politics and Rothstein plays right into that prejudice.[13]
Needless to say, Roosevelt the man is not the same as the New Deal as a whole, and he should be judged on his own. FDR was a consummate politician who read the tenor of the times better than almost anyone else and was remarkably concerned about the plight of common people. He was neither racist nor particularly anti-racist (much to Eleanor's chagrin). Two of his worst decisions were the failure to back a federal anti-lynching law in the mid 1930s and the internment order for Japanese Americans in 1942. The former caved to Southern opinion to hold together the Democratic coalition in Congress and the latter to anti-Japanese sentiment and war hysteria on the West Coast. Roosevelt should be judged harshly on both counts, but this neither negates all his other contributions nor does it make the New Deal part of the seamless web of White Supremacy. [14]
To be sure, the New Deal was not the Civil Rights movement – which came a generation later – but nor was it just a handmaiden to the US racial order of the time. It tried to buck that order in many cases and fell in line with it in others; an overall judgement is neither black nor white. But to condemn it from a position of juridical purity is ahistorical and misleading. While the New Deal's racial policies were seriously flawed, they played a significant role in nurturing the roots of the black liberation to come.[15]
The upshot of Rothstein's perverse "hidden history" is a very public shaming of the New Deal, its leaders and its policies. This, too, conforms to popular conservative ideology that denigrates one of the most progressive moments in American history and government.[16] Instead of this kind of whitewash, it is important to revisit the history of New Deal policies to see how and why it went wrong on race in cases such as Social Security, the National Labor Relations Act and housing policy, while still doing a great deal of good for ordinary Americans. Overall, the New Deal should be remembered as the time of the greatest federal effort in American history to support working people – millions of whom were not white.
A final complaint against Rothstein is that he only talks about racism in black and white, as if other people of color have not been its victims. It is a very East Coast view. Seen from the West Coast, the racial order has looked much different, and it was just as vicious in targeting Chinese, Japanese and Filipinos, among others. Rothstein may be correct that, overall, African Americans have suffered the most from White Supremacy, but one could give a good counter argument from the point of view of the genocide of native peoples. There is really no excuse for Rothstein's dismissive statement that "government-organized discrimination and even segregation of other groups, including Hispanics, Chinese and Japanese ...was of a lesser degree." (p. 233). The lack of a single mention of Asians, Chinese, or Indians/Native Americans in the index of The Color of Law is telling.[17]
I want to end on the key point of where social change and racial progress comes from. The Color of Law is meant to educate us about the past, but in the end leaves us ignorant of how politics and power really work – which leaves us unable to see how to make the future look different. American racism and the racial order are not an unmovable barrier and they have been pushed back considerably since the middle of the 20th century. How was that done? Not by correcting the erroneous legal reasoning of the Supreme Court, as Rothstein seems to think. The final chapter of the book on "fixes" for segregation is all about law and policy, but taking those in isolation just won't do the job.
Major social change never comes without a fight and massive popular struggles that have brought about improvements in the conditions of working people and people of color over time. That is how the Civil Right movement arose in the interwar period and finally triumphed in the realm of law and policy in the 1960s, after years of hard work and mobilization. Good policies can help, of course, as they did during the New Deal or the 1960s, but a fundamental social revolution against White Supremacy can only come through political upheaval and conflict, led from below. Rothstein has almost nothing to say about any of that.
[13] For further evidence of New Deal inclusion, see the work of The Living New Deal project at: https://livingnewdeal.org/what-was-the-new-deal/new-deal-inclusion/
Thanks to Rachel Brahinsky and Marc Weiss for feedback on this essay.
Peter Selz (1919-2019)
Peter Selz, the internationally celebrated art historian, professor, and essayist who served as founding director of the UC Berkeley Art Museum and Pacific Film Archive from 1965 through 1973, passed away early this morning, surrounded by family and friends. He was 100 years old.
“Peter Selz was a remarkable individual whose contributions to BAMPFA, UC Berkeley, and the broader art world are too numerous to count. Over the course of his tenure as our founding director, Peter transformed BAMPFA from a modest university art collection into the internationally renowned art and film institution it is today," said Lawrence Rinder, BAMPFA's director and chief curator. "Generations of Bay Area art lovers have benefited from his insight, knowledge, independence, and boundless energy, and his legacy will reverberate across and beyond our museum for decades to come.”
From his humble beginnings as a Jewish-German immigrant who fled Nazi Germany for the United States in 1936, Selz rose to become one of the most distinguished scholars and curators of the postwar art scene, developing close friendships with some of his generation’s most influential artists—including Mark Rothko, Willem de Kooning, Sam Francis, Christo, and many others. After studying in Paris under a Fulbright scholarship and holding professorships at multiple prestigious universities, Selz moved to New York in 1958 to become the Curator of Painting and Sculpture at the Museum of Modern Art. The position put him at the crux of powerful crosscurrents that were reshaping the New York art scene, from the influence of Abstract Expressionism to the rise of Pop art and Conceptualism. With a restless intellectual curiosity that would come to characterize his curatorial practice, Selz used his platform at MoMA to highlight work by an eclectic range of important artists, mounting influential midcareer surveys of Rothko, Jean Dubuffet, and Alberto Giacometti, among others.
In 1965, Selz accepted an invitation from the University of California to move to Berkeley and become the founding director of the museum that later became BAMPFA. What was then called the University Art Museum was conceived in the early 1960s to showcase the University’s growing art collection, which had recently been transformed by a gift from Hans Hofmann of nearly fifty of the artist’s finest works. As the museum’s first director, Selz was intimately involved in shaping the institution literally from the ground up—from engaging the renowned architect Mario Ciampi to design the iconic modernist building to partnering with the film director and scholar Sheldon Renan to establish the Pacific Film Archive at the heart of the museum’s program.
During his nearly decade-long tenure as founding director, Selz launched the young museum on an ambitious course, more than doubling the size of its collection with the addition of many Old Master, Modern, and contemporary masterworks and mounting massive exhibitions that took full advantage of the museum’s cavernous 100,000-square-foot facility. As his daughter Gabrielle Selz later observed, her father’s curatorial approach in Berkeley defied many of the fashionable art world trends of the 1960s; as the New York art scene deepened its embrace of Pop and Minimalism, the University Art Museum under Selz’s leadership celebrated the emergence of the countercultural Funk art movement with the massively influential group exhibition Funk in 1967. Selz also championed the work of figurative artists like Nathan Oliveira and ceramicists like Peter Voulkos, who went on to great acclaim despite working against the prevailing abstractionist trends of the period. As a professor in UC Berkeley’s art history department, Selz continued to distinguish himself as a scholar and essayist, authoring books and exhibition catalogs on Sam Francis, Ferdinand Hodler, German and Austrian Expressionism, and many other topics.
Selz concluded his tenure as the museum’s director in 1973 but continued to teach at UC Berkeley for more than a decade thereafter, retiring as an emeritus professor in 1988. He remained a major force in the Bay Area art scene even after stepping down as director, curating numerous exhibitions and partnering on projects with civic leaders and artists. Among these were the internationally acclaimed environmental artists Christo and Jeanne-Claude, who engaged Selz as the project director of their ambitious installation Running Fence—a 24.5-mile long fabric fence crossing the Marin County hills, which was completed in 1976.
A beloved member of the Bay Area art community through the end of his life, Selz was recently honored with a one hundredth birthday party at BAMPFA on April 2. In what would be his final public appearance, Selz expressed to a large and affectionate audience his sense of optimism about the future of the art world: “I can say there’s a lot of very, very good art being produced now, a lot of surprises … I have felt optimistic about art all my life.”
Selz is survived by his fifth wife, Carole Schemmerling Selz; his daughters Tanya Selz and Gabrielle Selz from his first marriage, to Thalia Cheronis Selz; his stepdaughters Mia Baldwin and Kryssa Schemmerling; and his grandson, Theo Mync.
Opinion
Editorials
It's Deja Vu All Over Again
The mantra for the current era should be Dorothy Parker’s rumored telephone greeting: “What fresh hell is this?”
Every day the national administration produces a new unbelievable occurrence, most often generated by the guy at the top. The last couple of days, however, have revealed, to my great surprise, that there’s someone in the White House that makes Donald Trump look sane and sober.
That would be John Bolton, who with his henchman Michael Pompeo has been ginning up a war with Iran.
How do I know? Well, it’s that same old script, always good for a remake. The first version, in my youth in the early ‘60s, was the Tonkin Gulf incident, the one where an imaginary battle between a U.S. ship and the North Vietnamese produced, per Wikipedia,“ the passage by Congress of the Gulf of Tonkin Resolution, which granted President Lyndon B. Johnson the authority to assist any Southeast Asian country whose government was considered to be jeopardized by communist aggression. The resolution served as Johnson's legal justification for deploying U.S. conventional forces and the commencement of open warfare against North Vietnam.”
The second bigtime remake was the episode of the WMDs, the Weapons of Mass Destruction, also imaginary, which were used to justify George W. Bush’s invasion of Iraq.
This history explains why some of us have been just a wee bit skeptical about the latest Gulf incident, this one in the Gulf of Oman. It’s alleged that a drone was shot down, maybe by Iran, maybe inside or perhaps outside Iranian territory.
And since nutty John Bolton has made no secret of his desire to crush Iran by any means necessary, suspecting him of producing yet another remake of the same old script only makes sense.
In any event, some of us who have seen the previous versions of this movie are wondering what we can do this time to change the plot.
Do we believe that Donald Trump had a sudden attack of common sense, asking if it’s really smart to kill a hundred or so people to avenge downing a drone? And even suggesting that it might just have been a mistake?
Will wonders never cease?
When this latest episode first hit the small screens in Berkeley, a veteran organizer wrote to an email list of her peers, including me, that she feared imminent war with Iran, and wondered what we could do to stop it. The responses included the usual suggestions: demonstrate, march, write postcards to legislators, telephone their offices…etc. etc .
I have the greatest respect for all the women on her list. They range in age from mid-seventies to nineties, and they’ve been opposing war in all of its manifestation for most of their long and busy lives, taking action for many years under the banner of Grandmothers Against War.
I’ve intersected several ways with various of them, one all the way back to Ann Arbor in the 1960s, and I admire what they’ve accomplished—no, we’ve accomplished--including ending the war in Vietnam, no minor feat. Their roots go back at least to Women for Peace (aka Women Strike for Peace), a movement started in the '60s which hoped to appeal to the better instincts of the powerful, mostly men in those days.
Sadly,most of today’s powerful, still mostly men, with one Super-Grandmother exception, appear to be utterly lacking in conscience, despite Trump’s uncharacteristic last minute halt to the assault on Iran. That’s why I was encouraged to learn what some of the Grandmothers on the email list have already started doing: stopping war from the bottom instead of at the top.
They are working with an organization that is dedicated to “trying to make sure young people understand the realities of joining the military before they enlist.” They've created an appealing web site designed to counter all the pro-military propaganda and undelivered promises which are used to entice young people to join the services, https://www.beforeenlisting.org
There are many reasons why young people should not sign up for military duty. One very important indicator is the high suicide rate among service members and veterans. The Planet reported on this anecdotally way back in 2004, and it’s only gotten worse since then.
I learned about the devious tricks used to persuade the young to sign up a number of years ago, when I got an anguished call from the single mother of a Richmond high school student. His grandmother had been my close friend before she died much too young of breast cancer, and since then I’d occasionally been a stand-in advisor for her children and grandchildren.
The mother told me that her son, who was about 17 or 18, had been sweet-talked by a glib recruiter who came to his school into agreeing to join the army. She knew, as did I, that it was very unlikely that he would get the training described, and very likely that instead he’d be tossed into whatever phase of the unending Middle East war was going on at the moment. I also knew that promises by recruiters were not enforceable.
I did some quick legal research and made some phone calls and then called the recruiting officer, who insisted on meeting me in his office deep in the bowels of Eastmont Mall, at that time the hangout for young people in East Oakland who had no good way to spend their time.
Without referencing my research I suggested that the boy wanted to withdraw from his enlistment and that his mother agreed. The sergeant gave me a long dishonest song and dance about how that was forbidden by a binding contract the youngster had signed. I knew better and told him so, and after some brief stonewalling he agreed to tear the contract up.
Most kids who make bad decisions, however, don’t get much advice about their rights. That’s why the work of Before Enlisting is so important. Potential recruits need information about alternatives which will get their lives on track, and the web site offers many.
My young friend has certainly found one that works for him. We’d kind of lost touch since he escaped the army, so I was delighted to get a wedding invitation from him just last week. I looked him up on Facebook (it’s not all bad!) and discovered that he’d found his way to a culinary training program and established what sounds like a great career as a chef, working alongside his intended bride.
It’s stories like this one which emphasize that we don’t just need to stop this endless war, whichever one it is, we need to dismantle a system based on tricking young Americans into becoming cannon fodder for phantom conflicts. Marches and postcards and petitions and op-eds and all the other traditional methods of trying to change the hearts and minds of decision makers and the voting public still have their place, but one-on-one personal contact as facilitated by Before Enlisting with those who’ve been targeted by the military service is saving lives one at a time in a domain outside the reach of the Trumps, Boltons and Pompeos.
Here’s how to reach Beyond Enlisting from their site:
“If you are an educator interested in learning more about what we can bring to your school or classroom, please do not hesitate to reach out.
“Or, If you are interested in learning more about our program as a veteran interested in presenting in schools, or as a youth or civilian volunteer, please get in touch!
“You can reach us by email at beforeenlisting(at)gmail(dot)com, or by phone: (415) 547-0126. We would love to walk you through what we offer (classroom presentations, group discussions, assembly performances, veteran Q&A, Warrior Writers readings...) and find what would be the best fit for you. Looking forward to talking!”
Though working with Beyond Enlisting won’t prevent war with Iran, at least not this week, you can see the results right away, and it’s a satisfying accomplishment.
Public Comment
The UC-GlaxoSmithKline Deal Should Be Surrounded by Red Flags. Where Are They?
Last week, drug company GlaxoSmithKline (GSK) announced its five-year $67 million partnership with UC Berkeley’s Jennifer Doudna and UC San Francisco’s Jonathan Weissman. Their stated goal is to establish a genomics institute with the aim of using CRISPR gene editing to find new medicines.
The GSK funds will support the Laboratory for Genomic Research, a new facility in San Francisco that will employ 24 full-time UC and 14 GSK scientists. GSK will play a hands-on role. Their prerogatives will influence the work that happens at the lab and they will have the option to license patents on discoveries. The arrangement raises obvious questions not only about conflicts of interest but also about handing a private corporation the benefits of research incubated by a public university.
Doudna, a biochemist and molecular biologist who co-discovered CRISPR, showed no such doubts. “We see … opportunity to leverage the best of academic science and research … with also the very best of pharmaceutical science …,” she said. GSK’s science officer boasted that they made the decision to establish the partnership “maybe even within minutes of discussing it.”
What could be unseemly about such unquestioning commitment and speed, especially when holding out the promise of finding new medicinals?
Twenty years ago, the answer may well have been “a lot.” In 1998, when agricultural biotech company Syngenta (formerly Novartis) gave $25 million to UC Berkeley’s Plant and Molecular Biology Department, red flags flew up immediately . The funding triggered intense concern over how a cash infusion from industry could negatively influence academic research and whether—and in what ways—the public service responsibilities of the university would be compromised by the corporate funds.
These are the same flags that should be waving in response to the GSK-UCB-UCSF deal. But the drowsy news coverage of the collaboration suggests that much has changed, quietly, in the intervening years. The steepening ascent of bio-entrepreneurialism continues to rub out the hazy line between university and commercial research. And apparently vanishing along with that division is a traditional, profound, and highly reasonable stricture: even the perception of conflicts of interest must be avoided because the public can’t easily know what’s influencing a researcher or affecting a publicly funded research agenda. Although it’s a struggle to maintain this restraint against profit motives and unchecked discretion, maintain it we must if we are also to maintain public trust.
And the public has plenty of reason to be skeptical. In 2012, GSK was fined $3 billion for engaging in illegal marketing and kickbacks . In addition to greasing the palms of those who agreed to write prescriptions, its misdeeds included hiring “independent” doctors to push their treatments, paying for articles in medical journals in efforts to boost its medical products, and promoting misinformation about the safety for children of one of its antidepressant drugs, Paxil. In 2018, GSK set off privacy abuse alarms when it bought a $300 million stake in 23andMe to get access to that company’s massive bank of genetic data.
Now, GSK employees will work side by side with University of California employees in a gleaming new Laboratory for Genomic Research. Such an industry-academic collaboration is unlike others we’ve seen. To be sure, it’s become common for corporations to fund academic research and for university researchers to create their own companies. These models and the conflict-of-interest problems they embody have become part of the troubling new normal. The GSK-UC deal amps the problem up considerably. What does it mean now that public university researchers will be foundational blocks in a major drug company—and one with such a dicey ethical track record? How much automatic but unearned public repute has GSK just secured by clothing itself in such academic credentials?
For their part, scientists often profess incredulity that financial interests can affect what and how they research. “It is widely accepted among members of the scientific community,” explained Tufts University’s Sheldon Krimsky in Science in the Private Interest , “that the ‘state of mind’ of the scientist is not prone to the same influences that are known to corrupt the behavior of public officials.” Judging by the groggy nature of critical news coverage, professional science has done a good job persuading the press that professional discretion floats immutably above the need for public scrutiny. Yet, cases famously demonstrating how scientists’ judgment can be as faulty as anyone’s serve up chilling reminders of the need for vigilance.
Consider U.C. Berkeley’s “Bring Your Genes to Cal" program (1, 2 , 3), in which science faculty encouraged incoming freshmen to send in swabs of their DNA, wasting no thought on what it means when those in positions of trust and authority can cajole students into giving up their genetic information. And then there’s that impressive history of unethical human experimentation, clinical trials, forced sterilizations, and non-consensual uses of human tissues. Think (to name just a few) Tuskegee, the birth control trials on Puerto Rican women, Carrie Buck, Jesse Gelsinger, and Henrietta Lacks.
The public knows little about how the unprecedented collaboration between GSK and the UC public universities will be implemented. Have standards and procedures to ensure oversight, transparency, and accountability been addressed? What role will the public play in oversight? What legal rules and remedies will apply when private and public actors act inappropriately or cause injury? When standards for federal funding and private funding conflict, which will take precedence? How is the public service mission of land grant colleges like UC to be protected much less promoted when GSK is entitled to exclusively license and commercialize the best drug targets? Will industry be benefiting from taxpayer-funded grants to university researchers? Is public largesse to universities bending toward corporate welfare?
Finally, how will members of this enthusiastic partnership prevent mission creep? At a conference with journalists following the announcement, a reporter asked Jennifer Doudna if they would edit embryos. “I don’t think there’s any intention right now to be editing embryos in this center,” she replied. “I think our goal is actually to work on various kinds of disease-related questions, but with the research using primary cells and tissues, potentially organized, that sort of thing.” Her answer gave science reporter Antonio Regalado pause: “surprised this needed a qualification of ‘right now.’ maybe later? door open? /end,” he tapped out on a Twitter thread that raised some of the critical questions that went unmentioned in the media coverage of the deal.
Surely there are multiple reasons to be alarmed when assessing the mission and institutional procedures of this new hybrid creation, the Laboratory for Genomic Research. But without mainstream media attention, the public is unlikely to be alerted to them.
Tina Stevens is author, with Stuart Newman, of Biotech Juggernaut: Hope, Hype, and Hidden Agendas of Entrepreneurial BioScience (Routledge, 2019).