Va. Atty. General Not A Believer In Global Warming But Is Hot Under The Collar

The Attorney General of Virginia, Kenneth T. Cuccinelli, is seeking documents through a civil subpoena from the University of Virginia (UVA) related to the work of a former professor at the institution, Michael Mann, who is now employed at Penn State.  Mann is one of the scientists involved in what has been dubbed Climategate, an incident in which emails between climate scientists were released to the public after they were obtained from a hacked computer at a climate research center in England.  Many opponents of global warming have sought to use the emails as proof that scientists have been rigging the climate change data. 

An inquiry at Penn State has thus far partially cleared Mann of any research misconduct, but the Virginia Attorney General wants to investigate Mann to determine whether he defrauded taxpayers in obtaining state-funded grants while employed at UVA.  While tempted to comment more directly on the motivations of Cuccinelli (this is a fellow who had to clarify, after trying to play it up with an audience, that he was not one of the “birthers” doubting whether President Obama was born in Hawaii), I’ll focus on some of the interesting legal questions raised by the Attorney General’s actions.  These questions are complicated enough anyway that they make for too long of a blog post already.

At first, UVA officials had indicated that they would comply with the Attorney General’s demands, but the university is now considering its legal options to challenge the subpoena.  Not surprisingly, the university has invoked the concept of academic freedom as a justification for its lukewarm response to the Attorney General, but this incident highlights the general uncertainty that currently exists regarding First Amendment protection for academic freedom.

Since the request relates to the work of an individual professor, let’s pretend that Mann was still employed at UVA and was named individually in the subpoena and wanted to challenge it on academic freedom grounds.  Well, such a challenge would have to deal with the fact that it is unclear the extent to which the First Amendment protects individual academic freedom.  I say unclear because I think there are some good constitutional arguments that support its existence, but many individuals already consider it a moot issue, an amusing side note to constitutional history.  I don't hold to that view, but let’s just say that if individual academic freedom under the First Amendment were a patient, she or he probably wouldn’t be making any plans for too far into the future.

In fact, a professor at a public university in Virginia would face a particularly difficult challenge in asserting a constitutional claim of academic freedom.  In Urofsky v. Gilmore, the U.S. Court of Appeals for the Fourth Circuit (which includes Virginia) held that faculty members at public colleges and universities possess no other First Amendment rights than those held by any other public employees.  The court also stated that academic freedom, if it exists at all as a constitutional doctrine, represents a right that is enjoyed at the institutional level and not possessed by individual professors. 

The challenges facing the professor would only become magnified when the Urofsky case is coupled with the Supreme Court’s decision in Garcetti v. Ceballos.  In that case, the Supreme Court held that public employees do not engage in speech for First Amendment purposes when communicating pursuant to carrying out their official employment duties, though the majority opinion explicitly left open whether the decision applies to speech by faculty members.  State and lower federal courts have issued conflicting decisions regarding the case’s applicability to faculty speech, but I’ve posted before on how some courts have not hesitated to apply the Garcetti standards to faculty speech.

While questions generally exist regarding whether the Garcetti case applies to faculty speech, the Urofsky decision would seem to answer this question in the Fourth Circuit.  Thus, it would seem that a UVA professor would appear to have to take an individual academic freedom case all the way to the U.S. Supreme Court in order to make a successful claim based on First Amendment grounds.

Well, then, what about institutions being able to assert an academic freedom right?  It appears that UVA may be exploring this option, and some commentators, with J. Peter Byrne of Georgetown University Law Center a notable example, contend that protections for academic freedom properly reside at the institutional level.  And cases such as Grutter v. Bollinger (permitting race as a factor in higher education admissions) seemingly indicate some sort of judicial recognition of some type of institutional academic freedom under the First Amendment.  But, and this is significant, a case such as Grutter involved a public university and a federal constitutional standard.  UVA, a state institution, is facing a demand from another part of state government.

This scenario runs into what I view as the biggest problem with the institutional academic freedom position.  I’m just not all that convinced that a public university would be able to assert much of a First Amendment right against another division of state government.  I tend to agree with Robert M. O’Neil that it’s pretty speculative that courts would recognize much of an institutional right of academic freedom for a public institution that would operate against another division of state government.  Like Byrne, O’Neil is another formidable figure in relation to academic freedom issues and, coincidentally, has served as President of UVA and is the founding director of the Thomas Jefferson Center for the Protection of Free Expression.

So, I think this incident at UVA highlights some real limits with the concept of institutional academic freedom.  As politicians perhaps seem increasingly attracted to going after pesky academics and academic programs to score political points (incidents involving legal clinics in Maryland and Louisiana are two other recent noteworthy examples), there may be some very real limits (legal and political) with how far institutions are willing or able to go to protect an individual faculty member.  UVA appeared ready at first to respond to the Attorney General’s request with no hesitation, and I wonder if institutions with less standing and political clout would really want to engage in this kind of legal tussle with a state’s attorney general. 

While this incident involves a premier institution, just imagine a powerful state legislator angry at a faculty member at a community college or at a regional university.  We often discuss academic freedom in the context of high-profile incidents, but I think its worth to society also operates on a more localized and everyday kind of way.  This post is already too lengthy and I'll save some thoughts for another time, but I wonder about the long-term impact of having individual academic freedom not receiving any kind of constitutional protection, especially considering how many faculty members now work off the tenure track.  The UVA incident provides a useful context to think about this issue.