Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
The University of Virginia has filed  a petition to set aside civil investigative demands (CIDs) issued to it by the Commonwealth’s attorney general, Ken Cuccinelli.
CIDs are akin to grand jury subpoenas. Cuccinelli’s inquiry was prompted by public disclosure — via the ClimateGate leaks — of the highly questionable academic practices of former UVA assistant professor Michael Mann. The disclosure of Mann’s activities involved the apparent leaking of emails, computer code, and annotations to the code, all of which were subject to and being pursued under the United Kingdom’s Freedom of Information Act.
Arguing against the request that they produce records related to Mann’s use of taxpayer-funded grant money, UVA reeled off a litany of rationales — mostly general and repetitive — regarding why they do not need to comply.
UVA’s reason #8 — out of nine, its placement inherently recognizing its weakness — headlines the opening rhetoric of its petition and is being used by the school as a public relations hook:
You know, like Stanford University was immune from inquiry into misusing taxpayer funds earmarked for scientific research during the most notorious pre-ClimateGate academic scandal. Oddly, Time magazine’s coverage  at the time was not concerned about “academic freedom” being imperiled: “Scandal in the Laboratories: Inquiries at Stanford turn a harsh light on how university research is funded.”
Stanford was no more exempt from laws, oversight, or conditions on how it spends taxpayer funds than are Mann or UVA. As a result, Stanford president and current Mann defender Donald Kennedy soon found himself out the door.
UVA’s current tack is simply to hope for public — and possibly judicial — sympathy to result from the escalating pressure campaign from what I call Big Science. Big Science is outraged that its constituents should be subject to laws applied to the little people and is desperate to expansively rewrite the concept of “academic freedom” as license to be free from compliance with those laws.
While Mann’s defenders were quick to unholster Hollywood-style shrieks of “McCarthyism,” the more appropriate analogy seems to be Tinseltown’s current victimization/canonization of Roman Polanski. He’s an artist! These laws you speak of, well, they exist, and surely have some merit, just … didn’t you see Chinatown?
The “I’m a scientist!” defense is the academy at its most cartoonish.
Doubling down on this unseemliness, the UVA then invokes Thomas Jefferson(!) while making the argument that laws are for others, and not preferred, protected classes of people. In its petition, UVA cites a 1950s Supreme Court opinion — Sweezy v. New Hampshire — for the following dicta:
To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Teachers and students must always remain free to inquire, to study and to evaluate …
No, the ellipses do not suppress “… and to commit fraud, or otherwise disregard the laws of the land.” And no fancy Latin canon of construction — noscitur a sociis, ejusdem generis, in pari materia … take your pick, they all fail — informs a conclusion that the UVA argument is what the Sweezy Court intended.
But what of the two prongs of that risible “any strait jacket” business the school hangs its hat upon? Of two plausible readings of this, the less plausible is that “any” indicates the Supreme Court deemed academics, of “any” sort no less, to be beyond prosecution — so long as the perpetrator claims a research purpose (and with nothing less than the fate of the nation at risk were things otherwise! Sigh.)
Alternately, the university begs the question: where do standards applied to the rest of us end and a “strait jacket” begin? Or, where does protection of intellectual discourse — not actually at issue here, despite UVA hand-waving to the contrary — end and selective immunity from the laws of the land begin? These are now questions for the Virginia courts.
Sweezy is an Eisenhower-era opinion, written shortly before Ike’s farewell address. The address is famous for warning of a “military-industrial complex,” but also for warning:
Sadly, this has come to pass, with the University of Virginia among its most zealous defenders.
UVA’s invocation of the wholly inapplicable Sweezy illustrates the barrenness of its legal cupboard, and no distraction will change that the precedent it cites is wholly irrelevant to Mr. Cuccinelli’s inquiry into possible civil fraud. The university expends great effort to make the issue other than what it plainly is.
“Academic freedom” has of course never meant selective sanctioning of unlawful behavior. And the attorney general is not, as the university claims to the court, “engag[ing] in scientific debate.” That the university cannot or will not see this only further makes the case that it is not capable of self-investigation.
Which raises a final point. In its petition, UVA proves far too much. For example, it references two other inquiries into aspects of ClimateGate. Where, pray tell, was the outrage by Big Science or academia over these two?
The answer is that the pretense of self-policing by the University of East Anglia and by Mann’s current home, Penn State, were both exercises in wagon-circling. When they were announced, Big Science remained mum because this was transparently so, as evidenced by their stacking panels with sympathetic parties highly unlikely to conclude otherwise than they did.
About these, UVA rather disingenuously claims “the subsequent investigations have not found any fraudulent conduct.” Of course they didn’t — neither inquired into fraud! Instead, both narrowly tailored their reviews to less treacherous waters.
By this mischaracterization to the court, UVA stretches the truth while doing its credibility no good. Which nicely summarizes the entire Mann affair.