The University of Virginia filed a brief last week opposing Virginia Attorney General Kenneth Cuccinelli II’s demand for a huge amount of documents relating to Cuccinelli’s fraud investigation of Michael Mann, an American professor at the center of the "Climategate" controversy. The brief expands on the university’s academic freedom argument and other arguments, and it mentions FIRE twice.
In general, FIRE opposes investigations of professors for fraud when no evidence has been provided. Cuccinelli’s initial demands provided no evidence, which would have set an extremely troubling precedent if they had gone unchallenged in that form. FIRE thus pushed Cuccinelli to reveal whether he had any basis for his comprehensive demands for years and years’ worth of communications with dozens of other researchers and assistants. Cuccinelli then provided a basis for his demands, and, as we noted last month, it is now up to the court to decide.
In its filing last week, the university expanded upon its own reasons for asking the court to set aside Cuccinelli’s demands, arguing in part that the "Climategate" e-mails do not provide sufficient "reason to believe" that Mann committed fraud of the sort Cuccinelli is investigating, and that the sweeping demands for documents are "excessive" because they do not demonstrate sufficient relevance. These points may well have to be sorted out by the judge.
The university also spends seven pages explaining how the demands threaten academic freedom. FIRE is mentioned on page 10 of the brief among various "[a]cademics and researchers from across the country—including those on both sides of the climate debate" who initially opposed the demands, and again on page 24, citing our concern about academic freedom in this case.
Here are some noteworthy parts of the brief on the theme of academic freedom:
[F]reedom of "inquiry," of rigorous and fearless academic study and debate, identified as a cherished American value in Sweezy [v. New Hampshire, 354 U.S. 234 (1957),] embodies the principle that an institution’s scholars should be free to pursue their research and express their opinions and conclusions without fear of government intrusion or reprisal; it is a "special" First Amendment concern. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) … Thus, "to prevail over academic freedom,  the interests of government must be strong and  the extent of intrusion carefully limited." Dow Chem. Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982). [page 21; bracketed numbers in original]
To be sure, no freedom is absolute, and the University is not suggesting that academic freedom automatically and always trumps the Commonwealth’s interest in investigating potential fraud. But where, as here, a CID [Civil Investigative Demand] or other request for information is defective on its face, and the information sought is so central to academic freedom or similarly cherished principles, courts correctly have refused to require compliance. [page 22]
Successful scientific research entails rigorous debate and the free exchange of ideas. Enforcement of the CIDs would chill academic and scientific inquiry protected by the First Amendment. The CIDs are an extraordinary method of investigation, and they have no role to play in a scientific debate. FATA [Virginia’s Fraud Against Taxpayers Act] does not authorize the Attorney General to evaluate the quality of Dr. Mann’s scholarship, or his research, or his methods, or the wisdom of his conclusions. Those scientific and academic questions are properly left to the individuals and institutions comprising our Nation’s academic and research communities. [page 26]
One advantage of this line of very robust interpretation in favor of academic freedom is that it puts UVa on the record as strongly supporting academic freedom. You may be assured that FIRE will not forget this commitment down the line should any other academic freedom controversies arise at UVa. We will keep you updated when Cuccinelli responds or when we learn more.