Does the Constitution really protect a right to "academic freedom"?

The law, lawyers, and the court.
June 1 2010 6:19 PM

Jefferson v. Cuccinelli

Does the Constitution really protect a right to "academic freedom"?

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In other words, the core and central enterprise of academic faculty in the university is to exercise First Amendment rights—rights guaranteed to everyone by the Constitution. Academic faculty happen to be exercising those rights as part of their job, but that does not make those rights any less worthy of protection. In performing their core functions, faculty are always engaged in the process of free inquiry. And free inquiry is the central project of the university—the university can't exist without it, as Thomas Jefferson well understood when he founded the University of Virginia.

Whatever the judicial doctrine of academic freedom may mean, at its heart it must protect those exercising core First Amendment rights—like researching, writing, speaking, and teaching. If government officials are allowed to dictate how the faculty exercises those rights, they are surely impinging on free speech. Indeed, the government impinges most directly on free speech by threatening to prosecute faculty for academic work that is wrong, shoddy, incomplete, mistaken, or fraudulent.

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And this is precisely what Cuccinelli has asserted. He says he issued the subpoena because he wants to explore allegations that Michael Mann falsified data in his scholarship. Despite the fact that multiple academic inquiries into Mann's research have vindicated him, it's important to understand what the attorney general seeks to do here: Cuccinelli is not alleging fiscal fraud—he isn't saying Mann used state funds to buy a Mercedes or finance trips to Aruba. Instead, Cuccinelli is investigating the scientific scholarship to make sure it meets his standard of academic integrity.

Using the threat of criminal or civil sanction to pursue "academic fraud" is the paradigm First Amendment case. Academic fraud is essentially what the authorities charged Galileo with—when he dared question the conventional religious wisdom that the sun revolved around the earth. It is what prosecutors alleged when they threatened academics during the Red Scare. And it is exactly what Cuccinelli is alleging here. The UVA subpoena violates both the individual rights of academics engaged in the exercise of speech rights on matters of public concern and the autonomy rights of the university to act independently from the government, as Frankfurter described in Sweezy.

"Academic fraud" is too easily used to suppress ideas that the authorities do not want to hear—in one case, the earth revolves around the sun; in another case, the earth is warming. It may be that what academics say is wrong, it may be that their methodologies are faulty, it may even be that they are twisting the evidence or making stuff up. But the government, through its prosecutors, cannot say anything about that. The First Amendment requires that we tolerate lots of speech that is plain wrong or mistaken—the university itself is designed to permit, even encourage, that kind of speech.

UVA v. Cuccinelli is in its opening stages—right now it consists of a petition filed in state court to set aside a civil investigative demand. Nevertheless, the Supreme Court might someday take this case and clarify the core meaning of academic freedom once and for all.

It probably won't, and the reason it won't only illustrates how off-base Cuccinelli's subpoena is. Cuccinelli chose to seek the Mann documents under the Virginia Fraud Against Taxpayers Act (FATA), but as UVA's lawyers pointed out last week in opposing the subpoena, Cuccinelli never explained (as required under the law) why he was seeking these documents. The act requires a fraud on Virginia citizens, yet all but one grant that Cuccinelli seeks to investigate are federal. Worse still, the state grant was made before the Virginia FATA became effective. This is not the first time Cuccinelli's hasty lawyering leads one to wonder whether he seeks legal outcomes or political ones.

The Virginia fraud statute is clearly the wrong vehicle for prosecuting science, and it's likely a court will deem the subpoena invalid before anyone gets near the big issue of academic freedom. That's too bad. Because a judicial decision in this case could finally clarify that basic scholarly inquiry is at the core of the First Amendment. And it would put a constitutional cherry on top of Thomas Jefferson's lifelong ideal of free inquiry. In the matter of Jefferson vs. Cuccinelli, we'd put our money on Mr. J. any day.

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Correction, June 2, 2010: This article originally misquoted Justice Brennan's opinion as stating that academic freedom is of "transcendent freedom"; the phrase Brennan used was "transcendent value."  (Return to the corrected sentence.)

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Richard Schragger is a professor at the University of Virginia Law School.