Win for Researcher Rights

Judge blocks attempt by state attorney general to get records on a scientist's work at U. of Virginia; further court battles are likely.
August 31, 2010

A state judge on Monday blocked Virginia's attorney general from demanding information about the research projects conducted by a former faculty member at the University of Virginia. While the ruling was praised by the former faculty member and the university, there are signs that the academic freedom issues raised in the dispute have not been settled and that more legal fights await on the question of just how much information state officials can demand on the research of faculty members at public universities.

Judge Paul M. Peatross Jr. ruled that Attorney General Kenneth T. Cuccinelli II has failed to show a sufficient basis for obtaining information about the research of Michael E. Mann, who has since left Virginia and become director of the Earth System Science Center at Pennsylvania State University.

Much of the information the attorney general was seeking involved federal grants over which the state has minimal oversight, the judge noted, and the attorney general also failed to outline reasons for suspecting fraud or abuses in any research that wasn't strictly federal. Faculty groups have said that letting such inquiries go forward would effectively disrupt the work of scholars whose work offends attorneys general or other powerful politicians.

Judge Peatross ruled that the attorney general could legitimately demand various types of information from the University of Virginia, noting that "the University of Virginia is a state institution and Professor Mann was a state employee allegedly obtaining state funds to conduct his research." And Cuccinelli declared that part of the ruling was a victory and announced that he would refile his information requests in ways that would comply with the judge's ruling. “While this was not an outright ruling in our favor, I am pleased that the judge has agreed with my office on several key legal points and has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation into whether or not fraud has been committed against the commonwealth,” said a statement from Cuccinelli.

Mann's research supports widely held scientific views that climate change is both real and something about which people should be concerned. Cuccinelli is among a group of Republican politicians who have expressed doubts about some climate change findings and who have questioned that scientific consensus, wondering whether various leaked communications among scientists suggested that researchers were being less than forthright about their studies. While inquiries into those e-mails have not resulted in any findings that challenge climate change theory, Cuccinelli has argued that he needs information to investigate whether fraud may have occurred in Mann's research at Virginia.

Faculty, science and civil liberties groups have rallied behind the university's move in court to quash Cuccinelli's requests for information. "The attorney general’s approach -- investigating a professor on suspicion of fraud simply because his work has sparked political and scientific controversy -- could have a grave chilling effect on scholarship and research at universities," said a brief filed by the American Civil Liberties Union of Virginia, the American Association of University Professors, the Union of Concerned Scientists and the Thomas Jefferson Center for the Protection of Free Expression.

"Seeking to avoid the stigma (not to mention legal costs) involved in a fraud investigation, professors would hesitate to research, publish, or even teach on potentially controversial subjects. Cost-conscious universities would hesitate to employ professors whose research challenges conventional scientific or political thinking, fearing the considerable costs involved in complying with a civil investigative demand. Either result directly interferes with universities’ important societal role as intellectual experiment stations."

The American Association for the Advancement of Science has also backed the University of Virginia and Mann in seeking to block release of the records.

The decision by Judge Peatross focused less on academic freedom than on the procedures for when an attorney general can request information from a public university. While the ruling acknowledged that there is "controversy regarding Dr. Mann's work on the issue of global warming," it added that it was "not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia." And the judge explicitly rejected the idea that the attorney general has broad discretion to go after records on any faculty member -- without some reasonable basis for doing so.

Rachel Levinson, senior counsel for the AAUP, said that these findings by the judge -- "even if he sidesteps the academic freedom issue" -- are of great importance to professors. First, she said it was key that the ruling found that "the attorney general's discretion is not unlimited." Second, she said that the judge's decision showed an understanding that "scientific debate and disagreement doesn't equal fraud."

Mann said via e-mail that the ruling was "a victory not just for me and the university, but for all scientists who live in fear that they may be subject to a politically motivated witch hunt when their research findings prove inconvenient to powerful vested interests." He said he was "looking forward now to trying to get back full time to the things I really care about: doing research and extending the forefront of our scientific understanding of the science of climate and climate change, teaching and advising students and postdoctoral scholars, and doing the best I can to communicate to the public important scientific findings."

For his part, Cuccinelli not only said that he would refile his requests for information from Virginia, but also that he would consider appealing parts of the ruling.

A Broader Pattern

The fight over Mann's records at Virginia is not the only current dispute over state access to public university faculty members' research records. In Arizona, a federal judge ruled this month that education researchers at Arizona State University and the University of Arizona can't be forced to release records that identify individual teachers they interviewed for their studies, which have become part of a court battle. But the judge ruled that the names of schools and districts studied must be released. In this case, the researchers are concerned about confidentiality pledges they made to the leaders of the schools, who might face a backlash for having cooperated with their studies.

Levinson said that in other cases -- most notably with researchers who study the tobacco industry -- non-government officials who question findings have sought access to private researcher records, through state open records laws or through subpoenas in court cases. "This is something we are seeing coming up from various professors," she said.

Looking ahead, she said that "I wouldn't be surprised if this is something we see more often, given the sensitivity to what academics are working on, if they are working on controversial issues that become politicized."

The ruling in the Virginia case shows that, at least in some states, working on federally funded research may offer protection, since the judge ruled that it was not a state matter to evaluate Mann's federal work. "Mann may end up being insulated by the fact that these grants were funded by federal dollars, as scientific research may be more likely to be," she said. But she added that "controversial social science research could end up being quite vulnerable."


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