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Freedom Is an Academic Right, Not A Business Privilege

Kenneth T. Cuccinelli, II, the attorney general of Virginia, issued administrative subpoenas earlier this year to the University of Virginia — a corporation created and run by the state — seeking documents related to the work of former professor Michael Mann, a co-author of the so-called hockey stick graph cited by proponents of anthropomorphic global warming theory. Cuccinelli, piggybacking on public and professional criticism of Mann’s research, which was funded by a number of government grants, said he was investigating whether Mann, now a professor at Penn State, violated the Virginia Fraud Against Taxpayers Act (FATA), which allows the attorney general (or a private whistleblower) to prosecute any person accused of “getting a false or fraudulent claim” paid by taxpayer dollars.

UVA fought Cuccinelli’s administrative subpoenas, even though it is a subdivision of the Commonwealth of Virginia represented by Cuccinelli as attorney general. The University, through separate counsel, asked the Albemarle County Circuit Court to set aside the administrative subpoenas, arguing they were not only deficient under the FATA, but that “their sweeping scope is certain to send a chill through the Commonwealth’s colleges and universities.” The University said Cuccinelli had no right to investigate the scientific research of a faculty member under the guise of enforcing anti-fraud statutes: “Enforcing the [administrative subpoenas] will interfere with recognized First Amendment principles and important public policies protecting the academic freedom of institutions of higher learning from government intrusion into research and scientific inquiry.”

Yesterday, the circuit court awarded UVA victory in the battle, but not the war. Judge Paul M. Peatross, Jr., said the administrative subpoenas failed to state a specific allegation against Professor Mann: “What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth is simply not stated.” Furthermore, Peatross found that the FATA did not apply to the five specific grants identified in the subpoenas: Four of the grants came from the federal government and the fifth grant, which involved Virginia funds, apparently came before the FATA took effect.

But Peatross rejected UVA’s argument that it was not subject to an FATA investigation. As for “academic freedom,” Peatross declined to insulate researchers from the attorney general’s jurisdiction. He noted that if Cuccinelli had reason to believe Mann misused “funds paid by the Commonwealth for a grant,” Cuccinelli could lawfully investigate under the FATA. (Cuccinelli argued he had jurisdiction over the federal grants since the funds were deposited in UVA accounts; Peatross disagreed.)

So Cuccinelli lives to subpoena another day. UVA, Mann, and their supporters will no doubt remain vigilant for the next attack. A group including the ACLU, the American Association of University Professors, and the Union of Concerned Scientists filed an amicus brief supporting UVA’s stand against Cuccinelli. The amici were emphatic: “Both professors and universities have a constitutional right to academic freedom.” Noting the Supreme Court’s defense of this position, the amici explained, “the Court recognized universities’ right to make academic judgments … educational matters in part because these judgments represented the expert determination of educational professionals.” Refusing to defer to the judgments of academics about their colleagues’ work would destroy the foundation of our university system, the amici said:

[Cuccinelli’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. 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 [subpoena]. Either result directly interferes with universities’ important societal role as “intellectual experiment stations.”

The amici said “peer review” was the best way to ensure the quality of academic research, not government oversight:

While academics expect their research will eventually be subjected to the rigors of peer review, the correspondence the attorney general seeks likely represents not final conclusions, but initial thoughts, suspicions, or hypotheses. Exposing these thoughts prematurely to the public eye would inhibit professors from speaking freely, as they might fear that any individual statement or email will be taken out of context.

I am sympathetic to these arguments, but they raise an uncomfortable question: If a decentralized system of peer review works so well for academic research, then why can’t it work for the rest of us non-academics who want to engage in commerce without the threat of expensive government intervention? Academics are usually the first to demand the state do to businesspeople exactly what Cuccinelli tried to do to UVA and Mann. Indeed, academics usually serve as “expert” witnesses to justify all sorts of preemptive regulations that trample upon individual liberties.

Just yesterday, I referenced a case where the government used the testimony of a single “expert” to justify punishing a private group for alleged fraud — even though no customers complained and there was no evidence of any injury. Unlike the Cuccinelli-Mann brouhaha, there were no government-funded grants involved, just private commercial acts that the government interfered with after the fact. And the underlying justification, of course, was to protect “science” — i.e., outlawing research and speech that contradicted what the state has deemed truth.

Many of the academics who insist the First Amendment creates a special level of protection for “academic freedom” simultaneously argue there must be a lesser degree of protection for “commercial speech,” because there is supposedly too great a risk of fraud originating from the latter to merit full constitutional protection. The amici here noted that failure to respect “academic freedom” would impose substantial costs on the university system — yet when it comes to businesses, many academics act as if the costs of regulation either don’t exist or don’t constitute a major burden. Ken Cuccinelli may be a right-wing hack looking to crucify Michael Mann for the benefit of a future gubernatorial run, but it’s hard to take the “academic freedom” protests seriously when they come from groups that historically favor political witch hunts against commerce while demanding hands-off treatment for potential acts of fraud by academics.

Ludwig von Mises Institute, 31 August 2010