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Is UVa committed to academic freedom?

By Jack M. Balkin

A new Levinson has joined the blogosphere. My daughter Rachel, who is the Senior Counsel at the American Association of University Professors, has written an excellent comment at the American Constitution Society site about the scandalous attempt by the Virginia Attorney General to engage in a witch-hunt regarding a former UVa climate scientist who actually believes in the reality of global climate change (unlike, apparently, Ken Cuccinelli, the AG). Since he is aptly described as a publicity-seeking yahoo (who, of course, was elected by the voters of Virginia), perhaps one shouldn't be all that shocked that he indeed behaves like a yahoo. What is more shocking, frankly, is the so-far submissive response of the University of Virginia.

Not only, as Rachel points out, does Sweezy v. New Hampshire suggest a winning argument against such yahooism, but the cravenness of the University, should it continue, threatens not only the good name of a great University and the willingness of UVa faculty to engage in cutting-edge research, but also the willingness, I should think, of non-Virginians to collaborate with anyone at UVa. After all, the yahoo-Attorney General is asking for all emails, etc., relating to the research of Prof. Mann when he was at UVa, which means that a large number of scholars elsewhere presumably have some interest in their own privacy (not to mention not being subpeoned themselves by the yahoo-AG, especially if they're so unfortunate as still to live in Virginia and subject to process). The analogy that comes to mind is a reporter being asked to burn a source. Sometimes a reporter will (and should) be required to do so, but only after the reporter engages in a good-faith attempt to resist the request and forces the state to prove a genuine need, etc. So far, the University seems to be the equivalent of the publisher who refuses to back up a reporter at all (including, of course, providing necessary legal counsel to resist the illegitimate demand and save the reporter from personal bankruptcy).

The University of Virginia is reputed to have a very fine law school. Surely there is someone there who might advise the Administration about the extent to which the Constitution protects academic freedom from stunts like those engaged in by the yahoo-AG. (Indeed, ironically enough, Rust v. Sullivan, written by Chief Justice Rehnquist, got five votes for the proposition that universities (unlike pre-natal clinics) are special places and therefore entitled to judicial solicitude against invasive legislation by Congress or, presumably, by yahoo-AGs.)

Should this case get to the Supreme Court, it will be good to have as a Justice a former Law School Dean--and distinguished scholar--who can be counted on to appreciate the importance of academic freedom.

Full post as published by Balkinization on May 11, 2010 (boomark / email).