Inside Higher Ed: Off limits

By Scott Jaschik, for Inside Higher Ed

March 5, 2012

The Virginia Supreme Court late last week shut down an effort by the state’s attorney general to obtain records related to a former University of Virginia researcher whose work supports the widely accepted theory that climate change is a serious environmental issue.

The attorney general, Kenneth T. Cuccinelli II, is a critic of climate change who is prominent in conservative Republican circles and argues that researchers’ private records might cast doubt on views of the environment backed by most scholars. Many academics have viewed Mr Cuccinelli’s campaign as an invasion of their privacy and as an attempt to intimidate scientists with the threat that their work could be taken out of context.

Michael Mann, the researcher, currently teaches at Pennsylvania State University. Via e-mail, he said that he was “pleased that this particular episode is over”. But he added: “It’s sad, though, that so much money and resources had to be wasted on Mr Cuccinelli’s witch-hunt against me and the University of Virginia, when it could have been invested, for example, in measures to protect Virginia’s coastline from the damaging effects of [the] sea-level rise it is already seeing.”

Professor Mann said that he hoped the decision on Friday 2 March would send a message not only to Mr Cuccinelli but to others as well. Professor Mann said that he and other climate scientists face “a coordinated assault against the scientific community by powerful vested interests who simply want to stick their heads in the sand and deny the problem of human-caused climate change, rather than engage in the good faith debate about what to do about it”.

While many academics have worried about the academic freedom implications of Mr Cuccinelli’s information demands, the decision by the Virginia Supreme Court was a technical one that did not address academic issues at all. Mr Cuccinelli’s demands for the records from the University of Virginia were based on the Virginia Fraud against Taxpayers Act, and the court ruled that this law was intended to give the attorney general power to obtain information, in certain cases, from individuals. The University of Virginia is not a person, and so is not covered by the act, the court said.

A brief filed in the case by the American Association of University Professors, the American Civil Liberties Union of Virginia, the Union of Concerned Scientists and the Thomas Jefferson Center for the Protection of Free Expression backed the University of Virginia’s attempt to quash Mr Cuccinelli’s requests, and did so in part by raising issues of academic freedom. The brief took care to say that the groups were not claiming that universities could not be investigated for genuine fraud. But it argued that “uncertainty regarding the validity of academic research, without more, cannot constitute allegations of fraud”.

If government officials can demand broad access to researchers’ work just because they disagree with a professor, the brief continued, “it will be possible for fraud investigations to be directed solely to novel or politically unpopular scientific theories”.

Robert M. O’Neil, general counsel for the AAUP (and a former University of Virginia president), said in an interview on Friday that he was not disappointed that the Virginia Supreme Court did not address the academic freedom issues. Had the ruling relied on First Amendment protections of academic freedom, he said, the attorney general might have appealed it to the US Supreme Court. The ruling, however, is entirely based on Virginia law, so it must be final.

“We advanced the academic freedom issues there, but I’m completely satisfied by what may seem an awfully technical and narrowly focused decision,” Professor O’Neil said. “But it does the job and it did everything that it needed to do.”

Early on in the case, the AAUP and others were concerned that the University of Virginia would not fight the state attorney general (who is normally the university’s chief lawyer). But the university opted to fight. Professor O’Neil, who also works for the Association of Governing Boards of Universities and Colleges, said he was delighted that the decision protected the rights of both faculty members and of institutions.

Mr Cuccinelli released a statement on Friday in which he said that although he disagreed with the court’s decision, he would drop his demands for the information from the University of Virginia.

Some of Professor Mann’s e-mail and other records are still subject to separate demands filed by climate change doubters who lodged freedom of information requests for them. Disputes over those records were not changed by the court’s ruling.

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