Last week, two students at the University of Virginia School of Law, working with LGBT rights group GetEQUAL, filed a Freedom of Information Act (FOIA) request seeking, “among other things, university-funded travel expenses and cellphone records for the past two-and-a-half years” of Professor Douglas Laycock, a prominent legal scholar with expertise in religious liberty jurisprudence.
An accompanying open letter issued by the students explains that the FOIA request is motivated by their concern about how Laycock’s scholarship has been wielded by their political opponents, whom the letter identifies as “those who oppose the ability of lesbian, gay, bisexual, and transgender (LGBT) Americans and women to fully and authentically live without interference from the government.” Specifically, the two students complain that Laycock’s “legal work on the topic of ‘religious liberty’ has been used as a basis of discrimination bills like the one that went into effect in Mississippi and nearly in Arizona” and “has also been used in efforts to resist the requirement in the Affordable Care Act that employers cover the cost of contraception.”
In other words, the students’ FOIA request is intended to impose a cost on a professor for producing scholarship the students don’t like.
Here we go again.
Three years ago here on The Torch, I warned about the threat to academic freedom posed by the increasing use of FOIA and other open records requests as political cudgels against professors engaged in unpopular research and study:
[A]ny conception of academic freedom includes, at a minimum, the professor’s general right to discuss ideas with his or her colleagues and students without fear of official reprisal. An open records request like the one at issue here is of course not official reprisal—for one, it is generated by a fellow citizen or group of citizens, not the state, although the state itself must enforce it. But were open records requests to be regularly invoked by private citizens in attempts to burden, embarrass, or otherwise hassle those professors whose research and scholarship they found objectionable, these legal requests might soon amount to a real threat to academic freedom, casting a chill on speech in the academy and encouraging professors and students to avoid dialogue about unpopular or controversial subjects. Put another way: If professors worried that every time they wrote anything controversial, they’d be forced to submit all of their emails into the public record, they would certainly think twice about writing anything remotely controversial. That would negatively impact both their right to speak as citizens and the robust academic exchange we expect on our campuses.
That post was prompted by the Republican Party of Wisconsin’s open records request for the records of University of Wisconsin-Madison (UWM) history professor William Cronon, asking that UWM hand over emails of Cronon’s that contained certain words. As I explained, the GOP’s request raised serious legal questions under state case law exempting personal emails sent by teachers. But more generally, the request highlighted the danger of using open records requests, an important tool for citizens in our democracy, as a means to burden speech, scholarship, and academic inquiry.
In fact, this precise danger was recognized just this past April by the Virginia Supreme Court in an opinion (PDF) regarding a state FOIA request filed by conservatives in an attempt to obtain documents produced by former UVA professor Michael Mann, a prominent climate scientist. In upholding the lower court’s finding that UVA had not erred by withholding Mann’s emails from its response to the FOIA request, the Court found that allowing groups access to a scholar’s “proprietary research” would leave UVA and other state universities at “a competitive disadvantage in relation to private universities and colleges”:
In the context of the higher education research exclusion, competitive disadvantage implicates not only financial injury, but also harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression….
In this case, many noted scholars and academic administrators submitted affidavits attesting to the harmful impact disclosure would have in these circumstances.
On this point, the Virginia Supreme Court paid particular attention to an affidavit submitted by UVA Provost John Simon, citing it at length:
If U.S. scientists at public institutions lose the ability to protect their communications with faculty at other institutions, their ability to collaborate will be gravely harmed. The result will be a loss of scientific and creative opportunities for faculty at institutions in states which have not established protections under state FOIAs for such communications. … For faculty at public institutions such as the University of Virginia, compelled disclosure of their unpublished thoughts, data, and personal scholarly communications would mean a fundamental disruption of the norms and expectations which have enabled research to flourish at the great public institutions for over a century.
These wise points are of course equally applicable to Laycock’s case, but they seem to have escaped the students filing the request. In their open letter, the students state a desire to “authentically engage [Laycock] and the wider Charlottesville community in this open and transparent conversation,” telling him that they “look forward to the dialogue.”
As Jonathan Adler points out at The Volokh Conspiracy, attempting to force disclosure of an academic’s email correspondence via the power of the state is an awfully lousy way to start a “dialogue.” Adler writes:
If the students truly want to start a dialogue — then they should actually start a dialogue. This requires actually engaging with the substance of Professor Laycock’s views and bringing something to the table other than their suppositions about how particular legal rules may affect their immediate policy concerns. Thus far, all they’ve delivered is the posture of entitlement and the tactics of thugs.
Note that Adler’s hyperlink for “thugs” directs readers to his 2011 post on the Wisconsin GOP’s FOIA request to Cronon, which he argued “looks like an effort to intimidate a prominent critic by conducting a fishing expedition through private communications — an expedition aimed at producing fodder for additional attacks on his reputation.” Adler’s principled consistency reminds us that the moral power of freedom of expression is derived in significant part from its symmetrical, even-handed protection: Punishing or burdening speech protected by the First Amendment is wrong, regardless of whether you agree with the message expressed or not. Outlets that criticized the Wisconsin GOP’s misguided attempt—like The New York Times, which said it “not only abuse[d] academic freedom, but [made] the instigators look like petty and medieval inquisitors”—should sound the alarm here, as well.
Writing at Overlawyered, Walter Olson surveys the use of FOIA requests to hassle academics from both sides of the partisan divide and suggests that perhaps the time has come for legislative efforts to prevent any further forays down this slippery slope. He writes: “It might also be time for legislators to clarify state open-records laws to determine under what circumstances they can be used to go after academics, and consider altering them, where appropriate, to provide for financial or other sanctions when they are misused.”
I agree. Otherwise, the temptation for each side to wield FOIA requests as a weapon with which to punish academics will continue to prove too great to resist.