April 26, 2011
Contacts: AAUP, Rachel Levinson
ACLU of Virginia, Kent Willis, 804-644-8080
Union of Concerned Scientists Michael Halpern, 202-331-5452
Richmond, VA— Four defenders of academic freedom joined together again yesterday to file an amicus brief (.pdf) asking the Virginia Supreme Court to affirm a lower court order setting aside a demand from Virginia Attorney General Ken Cuccinelli for the private communications of a global warming expert once employed by UVA.
Signatories to the brief are the AAUP, the ACLU of Virginia, Union of Concerned Scientists, and Thomas Jefferson Center for the Protection of Free Expression.
“Government officials must not be allowed to demand research materials from academics without clearly articulating the grounds for the demand,” said ACLU of Virginia Executive Director Kent Willis. “In this case, the AG is basing his demand on disagreement with scientific methods and results, not bona fide allegations of fraud.”
Cuccinelli, whose opposition to the science of global warming is well known, created a public stir last April when he sought records from UVA related to the communications and research of former professor Michael Mann, a widely published proponent of global warming theory. Among the broad range of records sought were emails that Mann sent to, and received from, colleagues from as far back as 1999.
Cuccinelli is using the Virginia Fraud Against Taxpayers Act to access Mann’s records. Under FATA, the attorney general may issue a “Civil Investigative Demand” for information related to acts of fraud against the state, but he must first have “reason to believe” that an act of fraud has been committed and must assert the nature of the conduct under investigation. Lawyers for UVA have argued that the attorney general has not met either of these conditions.
When UVA officials stated publicly that they were inclined to give into the AG’s demands, the ACLU of Virginia and the American Association of University Professors wrote a letter asking UVA to stand up for academic freedom by fighting the demand in court.
After UVA filed a petition with the Albemarle County Court to set aside the demand, the same four signatories to today’s amicus brief filed a brief supporting UVA. The court later ruled that the Attorney General had failed to specify the nature of the conduct alleged to be fraudulent and that he had no authority under Virginia law to seek records related to four of five grants in question, since they were federally, not state, funded.
After the court ruling, Cuccinelli issued a new civil investigative demand to UVA for access to documents related to Mann’s research and appealed the dismissal of his earlier ones to the Virginia Supreme Court. The state Supreme Court granted the AG’s appeal.
“It is critical that academic scientists and other scholars be able to communicate freely, without fear of government intrusion,” said Rachel Levinson, Senior Counsel to the American Association of University Professors. “Multiple scholarly bodies have already concluded that Professor Mann did not engage in fraud or research misconduct; the Attorney General’s fishing expedition is inappropriate and threatens to chill important scholarly debate and disagreement.”
The amicus brief filed yesterday was authored by Lisa Ewart and Mark Fleming of Wilmer Hale in Washington D.C.