If you or your students use oral history interviews in research, you need to be attentive to continuing problems with the increasing extension of human-subjects research protections—designed primarily as protections for subjects of medical and scientific research—into areas of historical study. An AHA staff survey of review board policies at 252 colleges and universities found the policies are largely unchanged, despite a 2003 agreement seemingly excluding most oral history research. As a result, historians find themselves and their work in a very complex and contradictory position.

As many Perspectives readers will remember, in September 2003, staff at the federal Office for Human Research Protections (OHRP) seemed to agree that oral history should generally be excluded from Institutional Research Board (IRB) review (see the articles in the March and December 2004 Perspectives). But as many academic historians have discovered, the IRBs at many colleges and universities are ignoring or rejecting the agreement.

To assess how the agreement with OHRP played out in the policies of colleges and universities nationwide, five AHA staff members (who were either current or recent history doctoral students) were tasked with the job of finding the IRB policies for oral history on the specific college or university web sites. They surveyed the policies as posted on the web sites of 152 research universities with history PhD programs. In addition, they also looked at a random sample of web sites of 100 other four-year colleges and universities.

The results were exceptionally disappointing. On almost 95 percent of the university web sites, the only guidance a faculty member or student will find is a passing mention of oral history among the research methods subject to "expedited" review. This language comes from the insertion of "oral history" into the federal regulations for review boards in 1998. Most university administrators see these regulations as inviolate law and refuse to accept the recent agreement with federal authorities as a valid interpretation of the rules. To make matters worse, the agreement was further undermined when staff at OHRP issued conflicting and contradictory statements about its meaning shortly after it was issued. The net result—stated explicitly by a few of the review boards—is that even if oral history is excluded from review, only the review boards can decide what is excluded on a case-by-case basis. As a consequence, it appears oral history is still subject to review on most campuses.

Only eleven of the university web sites discuss the exclusion agreement with OHRP—nine mention the original agreement with the AHA, while seven of them mention the subsequent contradictory guidance from OHRP in fall 2003, and five mention the OHRP's reaffirmation of the exclusion in January 2004.

We can point to a few success stories, however, in which specific review boards have adopted the exclusion agreement wholly or in part. The University of Texas at Austin's Office of Research and Compliance, for instance, states explicitly, "in general oral history projects are not subject to the requirements of the HHS regulations, and therefore, those that are not subject to the requirements of HSS regulations can be excluded from IRB review."

By and large, however, where our recent exchanges with the federal government did effect some evident change in policy, it was more likely a change for the worse—eliciting a stronger assertion of review board oversight. Eight sites explicitly discussed the status of oral history in terms of the contradictory statements from OHRP in fall 2003, and held that oral history cannot be excluded from IRB purview. UCLA's Office for the Protection of Research Subjects declares, for instance, "communication between OHRP and the Oral History community does not change the HHS interpretation of the Federal regulations for the protection of human subjects nor does it change UCLA policy on such research." And from our survey, it appears that the other institutions that are also taking an explicit position on the issue are following UCLA's lead.

As a result, historical work continues to be done under a legal cloud because of conflicting policy statements from OHRP, and ambiguous and inconsistent application at the college and university level. Through their professional associations historians have been told their research should be excluded from review, and it appears that many of them continue to operate on that assumption. Unfortunately, most review boards seem to be ignoring the agreed-upon exclusion, while offering very little guidance about whether, when, and how their authority might apply. So in practice, we have begun to hear regularly from historians who find themselves accused of violating rules that are not appropriate to our field, and which they fairly assumed did not apply to them.

Perhaps equally important, growing numbers of oral historians find themselves bumping up against hard-and-fast rules on matters like source confidentiality that cut against the standards and established practices of our profession. Reading through the policies and procedures posted on the college and university web sites, it is clear that a historian interested in interviewing someone for her or his particular story is provided little if any guidance on how the criteria of "risk" and "harm" might be applied.

This helps to explain why we seem to be receiving a growing number of calls and messages about historians running into hurdles at the review board level. Most of the complaints we receive involve modest annoyances—both about conflicting information on the exclusion, and the need to go through an arcane review processes that often bear no relation to their work. Typically historians find themselves filling out forms and being forced into classes that insist on confidentiality for interviewees, and require assent to hard science notions of hypothesis testing and evidence. For many the cost is only measured in time wasted and general annoyance at the IRB's apparent indifference to the special and unique needs of our discipline.

A few of the cases, however, are quite extreme. As described in the sidebar report from Bernadette McCauley at Hunter College of the City University of New York, one review board ordered a halt to all research on a subject, even portions that did not use oral history methods, until the board determined that she had not violated the rules. Other historians have reported threats of letters of reprimand or large fines for conducting or allowing their students to conduct unauthorized interviews. So the potential risks can be quite high.

Since the policies are enacted and enforced at the local level—by particular college and university administrations—there is some flexibility (or arbitrariness) about the way the policies play out. Some history departments have been able to limit the intrusiveness of IRB oversight and expand the criteria for assessment by proactively discussing these matters with their administrations. But there are at least two limits on this strategy.

First, there is a "sleeping dog" problem. A considerable amount of oral history work never comes to the attention of review boards, either because it has not been funded by federal grants, or because it never passes through a layer of administrative review. (The one notable exception to this is for doctoral students, who are perhaps most vulnerable and whose dissertations are typically reviewed at the dean's office before final approval.) For most faculty conducting this kind of research, there is an obvious incentive to avoid drawing attention from the review boards. While ignorance can be bliss, as the report from McCauley suggests, there are some significant risks.

The other limitation arises from the nature of most history departments, where only a relatively small number of faculty members use oral history methods. We have found it difficult to get department chairs and directors of graduate studies to engage this issue at the institutional level unless it affects their own work or that of their students. While the issues often seem remarkably picayune, and the limited guidance from the local IRBs can make it very hard to get a handle on the issue, this is a sad abdication of their responsibilities.

The Association urges administrators, historians, and students to weigh their responsibilities at the institutional level and individual level. Administrators—department chairs, directors of graduate studies, and dissertation advisors—need to carefully assess the risks to faculty and students of ignoring this issue at their institution. Anyone training students to conduct such research, or using oral history methods as part of their own research, needs to work proactively to ensure such work is done responsibly by adhering to the guidelines of the Oral History Association (available at http://omega.Dickinson.edu/organizations/oha/pub_eg.html). We would also encourage faculty who are actively engaged with oral history to work proactively in their own departments, to raise their colleagues' awareness of these issues.

Meanwhile, we continue to work on the issue at the national level. In November 2005, the Association sent another letter detailing our concerns with the ambivalent and arbitrary application of the federal regulations to Bernard Schwetz, the director of the OHRP. It should come as no surprise, however, given the limited effect of our past communications and agreements with OHRP, that our expectations are rather limited.

—Robert Townsend is the AHA's assistant director for research and publications.

—Carl Ashley, Mériam Belli, Richard E. Bond, and Elizabeth Fairhead collaborated with him on this project as research associates of the AHA's Research Division.