'Academic Freedom' Offers Little Protection Against New Efforts to Obtain Professors' E-Mails
March 29, 2011

By Peter Schmidt and Colin Woodard

Recent efforts by conservative-leaning groups to obtain the e-mails of Michigan and Wisconsin public-university professors have shed light on this much: Citing a need to protect "academic freedom" is, in itself, unlikely to help the universities avoid complying with requests for e-mails under state open-records laws.

The e-mail requests, directed at Michigan's three largest public universities by the free-market-oriented Mackinac Center for Public Policy and at the University of Wisconsin at Madison by that state's Republican Party office, represent an innovative use of state open-records laws largely unforeseen by the lawmakers who carved out exceptions to those measures to accommodate the needs of public colleges.

Several college officials and national experts on academic freedom and records laws contacted by The Chronicle this week said they had never previously heard of such measures being cited to try to gain access to politically oriented messages from individual professors.

And, while the Michigan and Wisconsin e-mail requests are being denounced by the American Association of University Professors and others in academe as likely to chill academic freedom, the reality is that the phrase "academic freedom" appears nowhere in any state's list of allowable reasons for public colleges to turn down records requests, according to a databasemaintained by the Reporters Committee for Freedom of the Press.

Although federal law prevents the disclosure of much information on individual students contained in such e-mails, and many states' records laws have exceptions for e-mails that are purely personal in nature or deal with unpublished research, closed meetings, or personnel decisions, there simply are no blanket exceptions intended to protect faculty members from efforts to obtain the sorts of e-mails covered under the new open-records requests.

Robert M. O'Neil, general counsel of the AAUP and founding director of the Thomas Jefferson Center for the Protection of Free Expression, said state open-records laws vary greatly in terms of the types of exceptions provided for the correspondences of faculty members, and some offer no exceptions at all.

Charles N. Davis, an associate professor of journalism at the University of Missouri at Columbia and a former executive director of the National Freedom of Information Coalition, said the question of whether concerns over academic freedom should preclude access to faculty members' e-mails might be interesting to mull over in the abstract, but, "legally, I don't think it is a question at all."

Mr. Davis added, however, that the lack of a current legal exception to open-records requests based on concerns about academic freedom does not mean "some bright lawyer" might not come along "and fashion an academic-freedom argument that might work."

A Real Threat?

The Mackinac Center's requests, sent Friday, ask Michigan State University, the University of Michigan at Ann Arbor, and Wayne State University to provide all e-mails from the employees and contractors of their labor-studies centers containing the words "Scott Walker" (the name of Wisconsin's Republican governor), "Wisconsin," "Madison," and "Maddow," in reference to Rachel Maddow, the liberal commentator on MSNBC.

The requests, covering the faculty members' correspondence from January 1 through March 25, also ask for "any other e-mails dealing with the collective-bargaining situation in Wisconsin."

The Republican Party of Wisconsin's request to the University of Wisconsin at Madison, sent March 17, ask for all e-mails into or from the account of William Cronon, a professor there, containing the keywords "Republican," "Scott Walker," "recall," "collective bargaining," "rally," or "union," the names of any of 10 specified Republican lawmakers, or the acronyms of either of two state public-employee unions, or the names of those two unions' leaders.

The university received the request just days after Mr. Cronon published a blog post critical of Governor Walker's controversial legislation limiting collective-bargaining rights in that state.

The American Association of University Professors, which issued a statement on Monday denouncing the Wisconsin open-records request as a threat to academic freedom, reacted similarly to Michigan requests after news of them broke Tuesday on the blog Talking Points Memo.

"Universities must do everything in their power to resist and condemn this wave of intimidating e-mail requests. It represents a bald effort to suppress faculty speech rights," Cary Nelson, president of the AAUP, said in a written statement.

"American education," he said, "cannot survive nonstop political raids on its community members' freedom to reflect on and debate the issues that shape our public life."

Gregory F. Scholtz, an associate secretary of the AAUP, argued in an interview that "professors are not government employees in the same sense that government officials are, or bureaucrats are."

He added: "Our ability to maintain the best higher-education system in the world is going to be threatened if faculty members have to be constantly thinking about the possibility that their e-mails to their students and colleagues are going to be published somewhere. What does this do for the quality of teaching and research?"

But Timothy D. Smith, a professor of journalism and mass communication at Kent State University and chairman of the Media Law Center for Ethics and Access, which is based there, said "I don't see an academic-freedom problem arising" from such open-records requests. "I am not being told what I can or cannot teach in my classroom," he said, and Mr. Cronon "isn't either."

New Territory

While large public research universities field hundreds of public-records requests annually, officials say that it is highly unusual to receive requests for the correspondence of an individual faculty member, and that wide-ranging requests of the sort Mr. Cronon faces are extremely rare.

"I don't recall any wholesale effort to collect e-mail and related works from a faculty member here, particularly for any kind of perceived political effort," said Thomas P. Hardy, executive director for university relations for the University of Illinois, whose three campuses fielded some 600 public records requests last year.

At Ohio State University, the "vast majority of requests" are in reference to the university president, vice president, or athletic department, said a university spokeswoman, Amy Murray. "There aren't a lot of requests of individual faculty members—maybe 10 percent of the total—and those are typically related to litigation, like if there's a divorce going on," she said. "The situation in Wisconsin didn't even ring a bell for us .... I've never heard of anything like that, and I've been here 25 years."

Under Ohio law, she said, faculty e-mail messages are public documents, but messages in which one expressed a political opinion to a spouse or co-worker would be categorized as personal and, thus, not released.

At the University of Iowa—which, since November, has posted all of the public-records requests it receives on the Web—nearly two-thirds of all requests come from reporters, and nearly a fifth from sports agents and lawyers.

The athletics department is the most popular target, accounting for 36 percent of the 245 requests fielded in 2010. "Many of them are looking at the contracts of our coaches, probably for the purposes of contract negotiations," said the university's interim spokesman, Thomas Moore. Other requests are driven by news events, such as the hospitalization of 13 football players this year with an unusual muscle condition.

Mr. Moore said that the university has received comprehensive requests for faculty e-mail messages in the past, but that under Iowa law, messages of a personal nature are not in the public domain. "If you write, 'Honey, please stop by the store on the way home,' that's not in the public domain," he says, adding that the university's general counsel reviews the documents and determines which are eligible for disclosure.

"As a public institution, we always try to err on the side of being open and transparent," he added.

All three universities noted that communications involving students are exempt from public disclosure under the federal Family Educational Rights and Privacy Act, or Ferpa. "If we had to produce some kind of faculty or staff communication or e-mail that had a student identifier, we would redact that," said Mr. Hardy of the University of Illinois.

But, he added, in Illinois at least, faculty and staff should be aware that their university e-mail and correspondence are subject to disclosure. "It's a lesson that some people learn the hard way," he said.

Under an agreement negotiated with Kent State's faculty union in 2001, the university's administration pledged to "make a good-faith effort" to warn professors of any open-records requests seeking to gain access to their e-mail account.

Mr. Smith of Kent State said the advance warning at least provides him, as a faculty member, a chance to go to court "to intercede if I want to keep anybody from wandering through my e-mail looking for something that might embarrass me."

Mr. Davis at the University of Missouri predicted that the Michigan and Wisconsin universities that have received the recent open-records requests will have lawyers sitting down reviewing each e-mail covered to see if there is a reason to withhold it. "If you start asking for stuff that no one has asked for before, you can expect pushback," he said. "It is part of the game."