Tenure And Open Record Laws: What Happens When Profs Are Forced To Produce Emails?

A couple of weeks ago, the Wisconsin Republican party requested the emails of University of Wisconsin history professor William Cronon.  The demand was issued pursuant to the state's open record law.  On Friday, the University turned over some portion of Cronon's emails - holding back emails that were private under the Family Educational Rights and Privacy Act (FERPA), some personal emails, and "the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it."

Cronon had been active in opposing Governor Scott Walker's union-busting efforts and the GOP sought to expose the possibility that Cronon was violating the state's ban on using state resources for political activity. 

The Republicans' request was a fishing expedition, seeking any emails in Cronon's UW email account  that "reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."  While most of these are GOP senators, Marty Beil heads the Wisconsin State Employees Union and Mary Bell leads  the Wisconsin Education Association Council.

I wonder how many states have FOIA laws that would allow individuals or groups to fish through faculty email in search of interesting and damaging material.  Given that law professors are often active in pushing public policy initiatives, and that (at least until the interdisciplinary move in the legal academy) this is arguably a central responsibility of a law professor, this is chilling.  

In fact, cases like this seem relevant to the proposed changes to the ABA's tenure requirements.  If I'm right that advocacy for particular legal rules is part of the law prof's job,  this example suggests that tenure is critical for all faculty - because clinicians and writing faculty are just as likely to publicly advocate for policies as other law faculty members. 

The bigger question, of course, is whether an accreditor has a stake in maintaining the muscular protection offered by tenure.  Perhaps long term contracts, and promises of academic freedom, suffice.  But it strikes me that law professors are particularly vulnerable to political winds, and to punishment for unpopular expression.  Rightly or not, law professors have outsized credibility in public policy debates - just look how often we're cited in the news, compared to faculty in many other areas.  Law professors often take public positions on controversial legal matters - and controversial legal matters are, per force, political.  And I think that it's legitimate for an accreditor to think that a law faculty ought to be engaged in these politically risky activities - that a law school that does not provide serious protection for such advocacy might actually provide a less adequate legal education to its students.  

Ironically, the move to interdisciplinary and theoretical scholarship could actually be seen to undermine the need for tenure.   I don't mean to minimize the potential controversy that this work could generate.  But I suspect that the GOP is less interested in sinking a professor who does empirical work on the biases of jurors hearing  punitive damage claims  - whatever the results of her research - than a professor who writes op eds and organizes opposition to tort law reform.  At minimum, I can guess which one will get slammed with a FOIA request.

Comments

[anon]

As much as this is an argument for tenure, it's an equally strong argument against public law schools. No FOIA and no taxpayer funded political advocacy.