Academic Freedom Challenged

A Virginia judge in November will hear what a libertarian group says will be a precedent-setting case over the academic freedom of researchers at public universities.

The group filing suit, the American Tradition Institute (ATI), hopes the case will pave the way for the public to access e-mail, documents, and data of academics at public universities.

The case started earlier this year when ATI used Virginia’s public access law to seek from the University of Virginia copies of e-mails and other data of climate-change researcher Michael E. Mann. Mann, who worked at UVA from 1999 to 2005, is the developer of the once-contested “hockey stick” graph of temperature fluctuations that occurred over the past millennium. Mann is also one of the climate researchers whose controversial e-mails were hacked from the University of East Anglia and made public in late 2009.

UVA provided some 4,000 documents in August to ATI, a public interest group that dismisses predictions of human-caused climate change and opposes government-sponsored clean energy initiatives. ATI is seeking another 6,200 of Mann’s documents from the university.

Now Mann, currently a professor at Pennsylvania State University, wants to have his voice heard—and defend his academic freedom—in the suit.

On Sept. 16, trial Judge Gaylord L. Finch Jr. set a date of Nov. 1 for Mann to present legal arguments over why the researcher should be allowed to intervene in the case. Finch also delayed a decision on release of more documents by UVA to ATI until after the November hearing.

Mann did not appear at the hearing. But Peter J. Fontaine, Mann’s attorney, said in court that the researcher will argue that his documents and data are protected by the First Amendment to the U.S. Constitution. Academic freedom is considered an extension of the free speech protections therein.

David W. Schnare, director of ATI’s Environmental Law Center, told C&EN after the hearing that ATI believes that UVA owns the documents and data. This is because UVA is a public university and Mann was a public employee, thus his documents are public and should be released under the Virginia Freedom of Information Act, Schnare contended. He predicted the arguments over whether—and to what degree—Mann, UVA, or public universities and their professors can assert academic freedom protections will end up before the Virginia Supreme Court and possibly the U.S. Supreme Court.

“This is going to be precedent setting,” Schnare said.

The ATI case against UVA is similar to a separate legal effort by Virginia Attorney General Kenneth T. Cuccinelli II (R) to obtain Mann’s e-mails. Cuccinelli, a climate-change skeptic who is challenging federal regulations to curb greenhouse gas emissions, is conducting a fraud probe into federal and state grants that Mann received while he was a researcher at UVA ( C&EN, Nov. 1, 2010, page 22). That case is pending before the Virginia Supreme Court, which has not yet set a hearing date for the matter.

Cuccinelli has filed a second case against UVA narrowly focused on a single state grant that Mann received for $214,700. A trial judge in September put the attorney general’s second case on hold until the Virginia Supreme Court rules on the first one.