In a petition prefaced with lofty language from Thomas Jefferson, lawyers for the University of Virginia asked a state court on Thursday to stay or overturn an "unprecedented" demand by the state's attorney general for more than a decade's worth of documents related to a prominent climate researcher formerly on the university's faculty.
The researcher, Michael E. Mann, taught at the university from 1999 to 2005 and is now director of the Earth System Science Center on Pennsylvania State University's main campus.
In its petition, the university argues that the "civil investigative demand" issued by the attorney general, Kenneth T. Cuccinelli II, does not meet the requirements of the 2002 law he cited in making it, the Virginia Fraud Against Taxpayers Act, because the demand does not specify "the nature of the conduct constituting the alleged violation," or even why Mr. Mann was singled out for investigation.
The petition also says that four of the five grants about which the attorney general sought information were made by the federal government, to which the Virginia law does not apply, and that the fifth, an internal university grant, was made before the law's 2003 effective date. The law is not retroactive.
Brian J. Gottstein, a spokesman for Mr. Cuccinelli, said that the attorney general's office would respond to the petition after reviewing it thoroughly. Mr. Cuccinelli, a Republican who has said that he questions climate researchers' global-warming findings, maintains that he opened the investigation because "at least some information suggests" that Mr. Mann applied for the grants using research data that he knew were inaccurate. Mr. Cuccinelli has also said he is not investigating Mr. Mann's academic work. "That subpoena is directed at the expenditure of dollars."
Scrutiny on Climate Scientists
Mr. Mann is one of the climate-change researchers affected by the so-called Climategate theft of e-mails from scholars at the University of East Anglia, in England. Global-warming skeptics have asserted that some of the e-mails show that researchers manipulated research results, but a series of investigations on both sides of the Atlantic have so far uncovered no fraudulent conduct.
Mr. Cuccinelli's investigation of Mr. Mann has drawn criticism from scholars in Virginia and elsewhere. Among critics have been the American Association for the Advancement of Science, the American Association of University Professors, the American Civil Liberties Union of Virginia, and the Union of Concerned Scientists. While some have interpreted the investigation as a warning shot across the bow of Virginia's universities, Mr. Mann said last week that he believed it was part of a larger strategy to collect and review climate researchers' e-mails for anything that casts doubt on their findings.
The attorney general's demand, delivered to the university late in April, sought not only documents related to the five grants but also what the university's lawyers called "a voluminous body of academic and scientific information, documents, and correspondence related to the merits of scientific research spanning a period of more than 10 years." The lawyers added that the demand left unexplained the "nexus between these broad requests and the five grants" or any other potential violation of the fraud law. Unless a court stays the demand, the university is required to turn over the documents by July 26.
The petition argues that Mr. Cuccinelli's demand threatens "bedrock principles" of academic freedom and of limits on the power of government, and it adds that the demand's "sweeping scope is certain to send a chill" though the state's colleges and universities.
The fraud law "does not authorize the attorney general to engage in scientific debate," the lawyers for the university wrote. "Unfettered debate and the expression of conflicting ideas without fear of reprisal are the cornerstones of academic freedom; they consequently are carefully guarded First Amendment concerns. Investigating the merits of a university researcher's methodology, results, and conclusions (on climate change or any topic) goes far beyond the attorney general's limited statutory power."
Comments
1. lexalexander - May 28, 2010 at 09:59 am
Good for UVa.
In general, any documents made or received by a public employee in the course of his/her business ought to be public, and a public employee ought to have no expectations of privacy with respect to how he/she does his/her job.
That said, the law as I understand it (IANAL) does specify some hoops the AG must jump through, and Cuccinelli clearly hasn't jumped. He's on an anti-global-warming fishing expedition, pure and simple. Any half-bright judge is going to send him back for another, more methodical go-'round, one in which he's going to have to show a relationship between the records he seeks that aren't otherwise public and the grants whose integrity he claims to be investigating.
He -- or any AG -- certainly ought to be ensuring that grants are used for their appropriate purpose and within the requirements of law. But that pretty obviously isn't, or isn't all of, what's going on here.
2. barbzirk - May 28, 2010 at 10:20 am
Between the governor and the attorney general, Virginia has definitely taken a turn to the dark side. Glad I neither live nor work in the state.
3. dank48 - May 28, 2010 at 11:28 am
Thanks for the satire, CHE. I love "unfettered debate" as a defense against sunshine. Truly side-splitting.
4. new_theologian - May 28, 2010 at 11:47 pm
It's hard to know where to come down on this one. I find it really hard to take the human-caused global warming hypothesis seriously, myself. But the authority of the government to make "demands" is always a scary thing, whether we agree with the motivations or not. On the other hand, if a person knowingly falsifies data to win a grant, that's academic dishonesty, and should result in serious professional consequences. It is also fraud, and should result in charges. IF - IF - IF that's what happened. There'd better be a darn good reason for making the charge, because this isn't just a traffic ticket. Now, I may think the thesis is wrong, but a charge of academic dishonesty and fraud is an entirely different matter.
Finally, the fact that a professor at a public institution is a public employee seems to me a different sort of fact from that of most other public employees. If the public sector wants to get into the higher education game, it has to accept what this implies--namely, that those employed as professors to make it happen enjoy academic freedom, intellectual property rights, etc. That doesn't just change because the institution is public. If it does, then there simply are no public institutions of higher learning, and we should stop pretending that there are.