Research Administration Office

University of California

Memo Operating Guidance

No. 90-3

February 12, 1990

Subject: Acceptance of Funds Restricted to U.S. Citizens

Enclosure I is a copy of the Council of Chancellor's (COO) June, 1988 Agenda Item prepared by the Senior Vice President--Academic Affairs on the subject of Acceptance of Funds Restricted to U.S. Citizens. The COC Item presents a discussion of University policy regarding acceptance of funds by the University either from the Federal government via research grants or from private donors in the form of gifts, such as endowed chairs, which require individuals who are employed by the University and paid from such funds, or hold such chairs, to be United States citizens. The COC Item presents relevant University policy, the rationale for opposing citizenship requirements in employment and appointment to endowed chairs, and trends and recommendations. It concludes by stating:

We recommend the following:

It will continue to be University policy that discrimination in employment based on citizenship is unacceptable. Only in selected cases where there are compelling circumstances in support of legitimate public interests bearing on individual job requirements is an exception acceptable. The Chancellor may recommend such an exception to the President for his approval.

In the case of endowed chairs, University policy precluding discrimination based on citizenship is extended to the appointment to an endowed chair.

At the June 29, 1988 COC, there was general concurrence that the position incorporated in the COC Agenda Item should be continued. Therefore, Contracts and Grants Offices should use this guidance, as well as the guidance provided in Contract and Grant Memo No. 87-39 on the subject of NASA Restrictions on U.S. Citizenship in University Space Engineering Research Centers when responding to agency requests for proposals.

On a related matter, Enclosure 2 is a copy of a June 14, 1988 memoranda to Academic Vice Chancellors about a provision in an agreement requiring U.S. Citizenship for access to the NASA RECON data base. This guidance may be of use to you in the event that a contract or grant is offered which proposes similar restrictions.

Refer: Barbara Yoder

ATSS 8-582-2886

(415) 642-2886

Belle Cole

ATSS 8-582-4301

(415) 642-4301

Subject Index: 01, 11, 14, 20

Organization Index: U-115

David F. Mears

University Contracts and Grants Coordinator

Enclosures

cc:

Vice Chancellors for Research

Coordinator Cole

Associate Vice President Moore


COC - Regular Session

Agenda Item 6

June 29:, 1988

ENCLOSURE I

June 17, 1988

ACCEPTANCE OF FUNDS RESTRICTED TO US CITIZENS

I. BACKGROUND

The Los Angeles campus requested a discussion of University policy regarding acceptance of funds by the University either from the Federal government via research grants or from private donors in the form of gifts, such as endowed chairs, which require such individuals who are employed by the University and paid from such funds, or hold such chairs, to be United States citizens. Discussion took place at the March 30, 1988 Council of Chancellors (COC) meeting. Vice President Frazer agreed to review policy and report back to COC.

II. POLICY AND INTERPRETATION

A. University Policy

Academic Personnel Manual 035, Affirmative Action and Non-Discrimination in Employment, provides the general University policy regarding academic appointees. It states, in part: "No person employed by or seeking employment with the University shall be discriminated against because of race . . . national origin; ancestry; . . . or, within the limits imposed by law or University regulations, because of age or citizenship." Similar policies exist for all University employees.

B. Interpretation and Guidance to Campuses

Office of the Senior Vice President-Academic Affairs has interpreted this policy to mean that, except in cases where discrimination on the basis of citizenship is specifically authorized by University policy or practice, it is contrary to University policy to accept provisions in sponsored projects or gifts which require discrimination in employment, including discrimination based on citizenship.

Consistent with this interpretation, the Director of Research and Public Policy in .the Office of the Senior Vice President-Academic Affairs provided guidance to the University Research Group (October 22, 1987) regarding a recommended response to the National Aeronautics and Space Administration (NASA) University

Space Engineering Research Centers program notice. The notice included a provision that individuals receiving direct funding from the NASA program must be U.S. citizens. It was stated in the October 22 letter that such a provision was contrary to University policy. Campuses were advised to submit proposals in response to the program announcement specifying in the proposal that the University does not discriminate on the basis of citizenship in employment. This guidance was subsequently distributed to campus Contract and Grant offices by Contract and Grant Memo 87-39, dated October 23, 1987.

The NASA program notice also restricts NASA fellowship support for graduate and undergraduate students to U.S. citizens. Although this requirement is poor policy and undesirable, since there is no specific policy precluding this practice, it would not set a precedent, and most importantly the government has a legitimate interest in promoting the training of domestic students, the advice to the University community was that this provision was acceptable.

III.

RATIONALE FOR OPPOSING CITIZENSHIP REQUIREMENT IN EMPLOYMENT AND APPOINTMENT TO ENDOWED CHAIRS

A. Research Excellence

It is expected that University researchers will be selected for participation on projects on the basis of merit and ability to contribute to the research project. It is also the case that research support staff are selected on the same basis. To allow an external sponsor to dictate irrelevant criteria, such as the requirement that employees be U.S. citizens, which are unrelated to research objectives, interferes with the quality of research. Such restrictions are unacceptable except under compelling circumstances. Students, professionals and staff from abroad who are not U.S. citizens make a major contribution to the conduct of research at this University.

B. Validity of Visa, Protections

Fourteenth Amendment and Civil Rights Acts

According to the Alien Immigration and Naturalization Act the University may only employ citizens and individuals with valid visas allowing employment. Permanent resident aliens and certain temporary and student visas permit the holder to accept employment. The University may not under the 14th Amendment and the Civil Rights Act of 1870 and 1964 discriminate arbitrarily against individuals because of citizenship status or national origin.

C. Precedent for Accepting Other Government Restrictions

The University has been successful in recent years in identifying and preventing any attempts by the federal government to control employment in research projects and access to research results. This effort has been facilitated by recent government policy in the form of National Security Decision Directive 189 in which President Reagan states that, to the maximum extent possible, the products of fundamental research remain unrestricted. According to the policy, there should be no controls placed on fundamental research and that where the national security requires control, the mechanism for control is classification. The NASA program notice is inconsistent with the purpose and sense of this national policy direction.

The President of the Association of American Universities (AAU), Robert Rosenzweig, on behalf of 54 AAU institutions wrote to the Administrator of NASA requesting that the notice be withdrawn for these same reasons.

D. Impact on International Exchange and Communications

Restrictions based on citizenship could have a chilling effect on the normal international exchanges and communications that take place and could result in retaliatory actions by universities and others in other countries.

IV. TRENDS AND RECOMMENDATIONS

To date, the number of instances where federal sponsors have attempted to enforce citizenship requirements for employment in federally-sponsored projects have been limited. We are aware of only three cases that have-been brought to our attention (the NASA case cited above and two programs sponsored by the National Security Agency). There does not appear to be a trend in this direction.

The University has not been required to accept such restrictions on employment as a condition of award. In the case of the National Security Agency agreement, the restrictive clause was eliminated from the agreement. We are not aware of any NASA award to UC under the Space Engineering Research Center program; however, it is unlikely that a special provision restricting citizenship would be added by NASA to any award and the standard NASA grant agreement currently contains no such restriction. In a few cases the University has had to reject awards from commercial organizations because of the pass through of various export control language which had the effect of limiting both employment and access to the research results to US citizens. In most of these cases, the commercial contractor was conducting classified research for the federal government. In the case of direct federal support to the University, the government has abided by the NSDD 189 and either classified the award or awarded the agreement without any controls. We believe it is effective to continue with the current practice of resisting such controls in unclassified research agreements.

We recommend the following:

1. It will continue to be University policy that discrimination in employment based on citizenship is unacceptable. Only in selected cases where there are compelling circumstances in support of legitimate public interests bearing on individual job requirements is an exception acceptable. The Chancellor may recommend such an exception to the President for his approval.

2. In the case of endowed chairs, University policy precluding discrimination based on citizenship is extended to the appointment to an endowed chair.


ENCLOSURE 2

June 14, 1988

ACADEMIC VICE CHANCELLORS

Dear Colleagues:

In September 1987, I learned from the UCLA library that the

agreement for access to the NASA RECON online database contains the following stipulation, which applies to all use of the NASA

RECON database, including access to unclassified information:

"Access is permitted only within the U.S., and to U.S. citizens, unless specifically authorized by RMS [RMS Associates is the NASA contractor for RECON service]. If citations are printed out, they must be similarly restricted."

. In November, we discovered that the RECON database service was undergoing internal review by NASA, and that this provision might be modified. We have recently learned that the. NASA review is completed, and that the restriction will not be changed. A copy of the agreement is enclosed for your information.

This restriction is in conflict with University policy which states in part that the University does not "discriminate on the basis of citizenship, within the limits imposed by law or University policy" in admission, access and treatment in University programs and activities. Also, enforcement would be difficult and might raise significant legal and policy problems regarding privacy and confidentiality of library records. Finally, we are informed by NASA officials that if a search conducted under the terms of this agreement were to lead, however inadvertently, to a violation of federal export control laws, employees of the University might be liable for prosecution under those laws.

We have reviewed the legal and the policy aspects of this situation, and our advice is to avoid entering into an agreement with RMS Associates for access to the NASA RECON database. If you have entered into a contract, we advise you to cancel it at once, informing NASA of the reasons for doing so.

I point out that there is an alternative to NASA RECON, i.e., the Dialog Aerospace Database (File 108). The Dialog database carries no restrictions regarding citizenship (although there are restrictions regarding access by foreign governments and organizations, and "persons-acting on their behalf"). However, the Dialog service does not include some files (holdings of the NASA libraries; pre-1960 NASA reports; reports from NACA, NASA's predecessor, 1915 to 1958; NASA technical briefs, contract records, and research-in-progress reports) that are available only through NASA RECON. Although the Dialog database is more costly, available evidence suggests that total Universitywide outlays for searching Aerospace Database probably do not exceed $1,500 per year at the present time, and the savings from using NASA RECON would be modest.

We recognize that if this situation arises again,..there may not be an alternative service. We are informed that, if the circumstances warrant, there are grounds to question the authority of a federal agency to impose such a restriction in the absence of express congressional authorization. It can be argued that a restriction which limits access to unclassified information in a publicly supported database is inconsistent with Federal policy and has no basis in law or executive action.

We have been advised by the Office of the University Contracts and Grants Coordinator that it would be wise for you to make an effort to coordinate with your campus contracts and grants officers and with your purchasing departments on federal contracts involving access to databases. We will continue to monitor issues-such as this, and maintain contacts with organizations such as the Association of American Universities, the Association of Research Libraries and the American Library Association.

I would appreciate your assistance in bringing similar problems to my attention.

Sincerely,

Calvin C. Moore

Associate Vice President

Academic Affairs

Enclosure

cc:

Senior Vice President Frazer

Chancellors

Library Council

University Contracts and Grants Coordinator Mears

University Materiel Coordinator Ove

University Counsel Dorinson

Director Cole

Director Smith

Coordinator Lawrence

Principal Analyst Yoder