In case you missed it, Virginia Attorney General’s fishing expedition against climate scientist and former UVA faculty member Michael Mann has been shut down by the Virginia Supreme Court.
The principle of academic freedom does not mean blanket immunity from legal scrutiny, but if it means anything, it certainly means that academic researchers should be protected from legal harassment by government authorities whose aim is to suppress research conclusions that they don’t like. Attorney General Cuccinelli claims that:
“From the beginning, we have said that we were simply trying to review documents that are unquestionably state property to determine whether or not fraud had been committed.”
But that’s exactly what you would expect harassment of researchers to look like – ‘you publish research we don’t like, and we’ll comb through all of your emails, notes, grant applications, etc. to find something we can use to embarrass, or better yet, indict you.’ Fortunately, people have long been aware of the fact that this kind of attack defeats the purpose of a research university, and many (most?) state universities do have some form of legally encoded protection. The emails of state university professors are not simply public documents open to anyone who cares to view them.
In Virginia, the Freedom of Information Act language includes this protection (see the amicus brief linked below):
The Virginia Freedom of Information Act specifically exempts from disclosure “[d]ata, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education . . . in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues . . . where such data, records or information has not been publicly released, published, copyrighted or patented.”
The VA Supreme Court’s ruling was focused on the more technical matter of whether UVA could be legally subject to the particular kind of fraud investigation launched by the rabidly partisan, global warming skeptic Attorney General (who appears to believe that these kinds of investigations will advance his political career in the Virginia GOP).
But the AAUP, ACLU, UCS, etc. filed an amicus brief that nicely sums up the argument for academic freedom (PDF):
These statutory requirements can and should be applied with particular care in light of the First Amendment’s established protection of academic freedom and the serious risks of a chilling effect when an investigating official targets scholarly or scientific research under the guise of a broad-ranging investigation into vague and ill-defined assertions of “fraud.”
Amici do not argue that academic institutions are immune or exempt from responding to a CID. However, the Attorney General is wrong to presume that the First Amendment’s protection of academic freedom is irrelevant to this case. Rather, in situations where an investigating official targets information subject to that protection, courts scrutinize the strength of the investigating official’s suspicion of wrongdoing and weigh it against the significant chilling effects that will result if scholars or institutions face burdensome investigations based only on the fact that they have employed research methods and reached conclusions that might prove unpopular…
Actual allegations of fraudulent statements to the Commonwealth should be investigated, but when the claimed allegations— to the extent they are even discernable—turn on the validity of scientific analysis, courts should protect the academy’s role as an area where free inquiry may proceed regardless of whether public officials disapprove of the results.
If the Attorney General’s view of judicially-unchecked investigative authority prevails and the CIDs at issue are permitted, it will be possible for fraud investigations to be directed solely to novel or politically unpopular scientific theories. But courts have recognized that doubts about the validity of scientific work are not the equivalent of fraud and have not hesitated to set aside CIDs that, like these, will have the effect of suppressing research rather than unearthing wrongdoing.