University of Wisconsin-Madison Strives to Balance Public Records with Academic Freedom

Those who have been following the controversy over the Wisconsin Republican Party’s open records request for access to certain of the emails sent from or received by my state email account since January 1 have undoubtedly been awaiting news about how this request will be handled. My colleagues at colleges and universities across the country–along with many other citizens of Wisconsin and other parts of the United States–have joined me in expressing strong concern about the threat to academic freedom represented by requests of this sort, but expressions of concern do not by themselves solve the difficult challenge of figuring out how best to balance the genuine public interest represented by freedom of information and open records laws on the one hand, and privacy, academic freedom, and First Amendment rights on the other.

What casual observers may also not instantly recognize is that legally, the “record holder” who received this request is not myself, but rather the University of Wisconsin-Madison, which is as committed to honoring the public records law as it is to defending academic freedom. So for the past week, I have been watching the leadership of the university struggle to perform the legal “balancing test” required to serve these two important public goals.

The university has now released two documents in response to the open records request, along with a subset of the emails sent from or received by my state email account since January 1. The first document is a letter written by John Dowling, a lawyer with UW-Madison’s Office of Administrative Legal Services, that does a superb job of applying and explaining the legal balancing test that the university used in trying to honor the open records law while meeting other statutory obligations and defending the principles of free scholarly inquiry and academic freedom.

The second is an eloquent statement by UW-Madison Chancellor Biddy Martin articulating the principles at stake in this case. In it, she affirms the university’s commitment to honoring the Wisconsin Public Records Law while making the strongest possible argument that academic freedom must be taken into account when responding to open records requests lest the freedom of inquiry and freedom of thought at a great public research university be threatened or eroded.

I will be writing more fully in a future post concerning what I’ve learned about the challenge of balancing freedom of information with freedom of inquiry, but I don’t want to waste any time in encouraging everyone to read these two documents carefully.

I could not be more grateful for the thought and care that Biddy Martin and UW-Madison attorneys have put into crafting these responses–and I am very proud of this university for continuing to defend the great traditions of the Wisconsin Idea and of the “sifting and winnowing” plaque that I discussed in my earlier blog entry (the “sifting and winnowing” section is toward the end).

From where I’m sitting, the two documents below can proudly take their place beside that wonderful sentence from the 1894 report of the UW Board of Regents:

Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great State University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.


Original available as PDF here.

April 1, 2011

Stephan Thompson

Republican Party of Wisconsin

148 East Johnson Street

Madison, Wisconsin 53703

Dear Mr. Thompson:

I am writing on behalf of and as legal counsel for the University of Wisconsin-Madison in response to your records request e-mailed to me and dated March 17, 2011.  By that request, you seek various e-mails written or received by UW-Madison Professor William Cronon through his university e-mail account beginning on January 1, 2011.  You specifically seek e-mails that reference 20 words, terms and names of individuals that all appear to be related to current political events in Wisconsin.

At our request, Professor Cronon immediately undertook a search of all of his accumulated e-mails for the specific words, terms and names as you stated them in your request.  The university’s legal staff then reviewed all of the identified e-mails to determine which ones must be made available to you pursuant to the Wisconsin Public records law.  Those determinations have been reviewed and approved by the appropriate university officials.  Copies of the records determined to be available to you under the law are enclosed.

In reaching our conclusions, we have made several assumptions based upon the nature and context of your request.  You asked the university to produce e-mails that contain the word “union.”  We assume that you are using this word in the context of labor unions.  We, therefore, are not producing the numerous e-mails that contain such unrelated terms as “Memorial Union” or “European Union.”

You have also requested e-mails that contain the word “recall.”  Again, we have made the assumption that you are using this word in the context of the current efforts to recall certain public officials in Wisconsin.  We are not producing e-mails containing the word “recall” in the sense of recalling a past event (e.g., “I recall from our meeting last week …”).

We have also assumed that you are not interested in copies of e-mailed newsletters from membership organizations or subscription publications that are generally available.  Professor Cronon receives regular newsletters from organizations that are of personal and professional interest to him – e.g., Wisconsin Historical Society; Wisconsin Academy of Sciences, Arts and Letters; Forum on Religion and Ecology, etc.  None of these organizations are overtly political, nor are they involved in the current efforts to recall any public officials in Wisconsin.  Professor Cronon also subscribes to e-mail delivery of generally available publications – e.g., The Economist.  The university is not producing any of these e-mails that have been identified as containing any of your specific words, terms or names.

If we are wrong in any of these assumptions, please let us know immediately.

You should further note that the e-mails that we have reviewed contain absolutely no evidence of political motivation, contact from individuals outside normal academic channels or inappropriate conduct on the part of Professor Cronon.  The university finds his conduct, as evidenced in the e-mails, beyond reproach in every respect.  He has used his university e-mail account appropriately and legitimately.   He has not used his university e-mail account for any inappropriate political conduct.  In fact, none of the e-mails contained any reference whatsoever to any of the specific political figures that you identified (except Governor Scott Walker), nor do they in any way reference the proposed recall efforts.

The university is not producing the following categories of records for the following reasons:

  • Records related to students.  The Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g and 34 CFR Part 99, requires the university to keep confidential all education records directly related to students.  E-mails between Professor Cronon and specific students are included in this requirement.
  • Records related to potential students.  FERPA, by its specific terms, does not apply to records relating to individuals who are contemplating becoming students at the university.  However, we have performed the common law balancing test incorporated in the Public Records law (State ex rel. Journal Co. v. County Court,  43 Wis. 2d 297 (1969)) and have concluded that the public interest in communications between Professor Cronon and potential students is outweighed by other public interests favoring protection of such communications.  There is a strong public interest in recruiting the best and brightest students to this state’s public universities.  Individuals who correspond with faculty members about the possibility of coming to the university to pursue their education deserve at least as much privacy as those who eventually enroll and are protected by the specific terms of FERPA.  Making such communications public, especially if the individual eventually decides not to come to this university, would have a detrimental effect on the university’s ability to recruit and enroll the best and brightest students.
  • Records related to professional organizations.  Professor Cronon, like many other faculty members, is involved in professional organizations related to his fields of study.  In fact, he is the current President-Elect of the American Historical Association and was a member of the Executive Board of the Organization of American Historians.  In these roles, he has had significant e-mail communication with officials of the organizations concerning internal issues specific to those organizations.  We have performed the common law balancing test incorporated in the Public Records law and have concluded that the public interest in such communications is outweighed by other public interests favoring protection of such communications.  If the internal discussions and business issues of such professional organizations were to be made public solely as a result of the participation by a faculty member of this university, it would have a significant chilling effect on the ability of the university’s faculty members to participate in these important positions.




  • Personal communications.  The Wisconsin Supreme Court’s decision in Schill, et al. v. Wisconsin Rapids School District, et al., Case No. 2008AP967-AC (July 16, 2010), allows the university to withhold e-mails containing purely personal communications that do not relate to Professor Cronon’s employment as a faculty member or the official conduct of university business, even though they were sent or received on university e-mail and/or computer systems.
  • Intellectual communications among scholars.  Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another.  The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.  The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia.  For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.
  • Communications related to personnel matters.  Professor Cronon’s e-mails include several dealing with personnel matters, including the evaluation of candidates for tenure and consideration of potential candidates for employment.  Section 19.36(10)(d), Wisconsin Statutes, excepts from the Public Records law the performance evaluations of university employees.  Section 19.36(7), Wis. Stats., which allows the identities of final candidates for employment positions to be made public, is an indication of the public policy favoring the confidentiality of inquiries about possible employment prior to an actual position opening or application.  We have performed the common law balancing test incorporated in the Public Records law and have concluded that the public interest in such communications is outweighed by other public interests favoring protection of such communications.

The university is required to inform you that to the extent that this amounts to a denial of your request, it is subject to review by mandamus under sec. 19.37(1), Wis. Stats., or upon application to the Attorney General or District Attorney.


John C. Dowling

Senior University Legal Counsel


Members of the campus community,

Two weeks ago UW-Madison received an open records request from Stephan Thompson, deputy executive director of the state’s Republican Party, for email records of Professor Bill Cronon.

Professor Cronon is the Frederick Jackson Turner and Vilas Research Professor of History, Geography and Environmental Studies at UW-Madison. He is one of the university’s most celebrated and respected scholars, teachers, mentors and citizens. I am proud to call him a colleague.

The implications of this case go beyond Bill Cronon. When Mr. Thompson made his request, he was exercising his right under Wisconsin’s public records law both to make such a request and to make it without stating his motive. Neither the request nor the absence of a stated motive seemed particularly unusual. We frequently receive public records requests with apparently political motives, from both the left and the right, and every position in between. I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law.

We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member’s job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.

Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions.

This does not mean that scholars can be irresponsible in the use of state and university resources or the exercise of academic freedom. We have dutifully reviewed Professor Cronon’s records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.

To our faculty, I say: Continue to ask difficult questions, explore unpopular lines of thought and exercise your academic freedom, regardless of your point of view. As always, we will take our cue from the bronze plaque on the walls of Bascom Hall. It calls for the ‘continual and fearless sifting and winnowing’ of ideas. It is our tradition, our defining value, and the way to a better society.

Chancellor Biddy Martin

36 thoughts on “University of Wisconsin-Madison Strives to Balance Public Records with Academic Freedom”

  1. I am pleased & relieved this was handled with the care it deserved. The statements & actions of Dowling, Martin, & you Professor Cronon are to be commended.

  2. Bill,
    I’m pleased and relieved to read both of these statements. I’m especially proud of these two passages: “You should further note that the e-mails that we have reviewed contain absolutely no evidence of political motivation, contact from individuals outside normal academic channels or inappropriate conduct on the part of Professor Cronon. The university finds his conduct, as evidenced in the e-mails, beyond reproach in every respect. He has used his university e-mail account appropriately and legitimately. He has not used his university e-mail account for any inappropriate political conduct.” (from John Dowling’s letter) and “We have dutifully reviewed Professor Cronon’s records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.” (from Biddy Martin’s letter). I fully expected this outcome, but it feels really gratifying to know that you’ve upheld our trust and faith by your actions prior to (and since) the request for access to your email correspondences. Thank you for being a consistent example of integrity and forthrightness as both a person and a professor, or to use your more recent pairing, as a scholar and a citizen.

  3. This is excellent news, Professor. The UW law team has handled the matter appropriately and Mr. Dowling’s letter does credit to the University and its legal counsel. Chancellor Martin’s remarks are excellent and should be taken to heart by academics and students across the United States.

    I’m pleased, and entirely unsurprised, to see that there are no real emails of consequence to hand over to the Wisconsin Republican Party. Of course, I do have one worry: Is it possible that the RPW accuses you or the university of hiding ‘potentially-damning’ emails? After all, Mr. Dowling’s letter does say that you yourself went through your email account. Is the RPW a group that will accept this reply in good faith?

    Honestly, I’m not so sure.

    Again, glad to see this event handled so well.

    Paul A.
    History ’10

  4. This is good news. I am impressed, again, by your reasoned conduct through this whole affair. I was a bit concerned with the Chancellor’s first response to the open records request, but am no longer. Excellent work by you all.

  5. I’m pleased by how Biddy Martin and John Dowling negotiated the balancing act. But as another professor at UW-Madison, I’m wondering which (if any) of my emails would be left after excluding records relating to students, potential students, professional organizations, personnel matters, and intellectual communications among scholars? Well, thousands of emails about trying to schedule faculty meetings (which reminds me, Bill–when you get a chance, can you take a moment to reply to my recent email about scheduling a committee meeting?).

  6. I’ve been a deep admirer of Prof. Cronon since I first read Changes in the Land in a senior seminar at a high school in the Pocumtuck Valley. I’m moved by the university’s defense of this fabulous historian, and even more moved by the vigorous defense of academic freedom by the Chancellor. Looking forward to the continuation of this blog long after all this hubbub subsides.

    Justin Reich

  7. A silver lining to this unfortunate incident is that it’s gotten me, and I suspect many other ordinary folks like me, to think about the importance of academic freedom. In your previous post you pointed out FERPA, so I understood that releasing student emails probably wasn’t in the picture. But the student perspective is what’s familiar so I thought along those lines anyway. A few examples of emails as a student I would prefer be kept private: You’re wrong. Your work is disorganized. The work is poorly cited. You may get a picture of the sort of student I was. Still, creating new knowledge happens in a context quite different from the context of being eager to share ones creation publicly. Academic freedom is very important, for many of us it’s a stretch to understand the idea abstractly, but not so hard concretely. Not a resident of Wisconsin, but as a US citizen I’m very pleased how UW has responded to the request.

  8. In discerning patterns, it is always useful to gather more examples. There is a strong parallel with the actions of Virginia Attorney General Ken Cuccinelli, easy to find, but for example:
    NY Times.

    Some of his funding has come from some of the same folks who fund ALEC, although funding is in general quite murky. See this, p.93, ALEC column. It shows substantial money from ExxonMobil, Richard Mellon Scaife (Allegheny, Scaife), The Koch brothers (CG Koch, Lambe). Possible other funding is described by Sourcewatch.

    Cuccinelli is a graduate of George Mason University, whose Mercatus Center is intertangled with ALEC in various ways.

    Of course, people may recall that Cuccinelli, in attacking U VA, is going after the school Thomas Jefferson started.

  9. I have follow Professor Cronon’s blog since he became known to me through the media coverage he has received of late. I appreciate his insights on the various issues he has covered thus far in his blog. And furthermore I appreciate the manner in which he has dealt with his recent noteriety.

    I have absolutely no doubt that he is truly an asset to the Wisconsin University System, and instead of arguing about FOIA vs FERPA – I will simply say that Professor Cronon please keep your head up and stay the course. I firmly believe that the University Record Holder will handle it appropriately under the applicable laws etc..

    I look forward to future blog entries, because I enjoy reading a alternate opinion on the various issue we both have interest in.

    Thank You and have a great Day,

  10. The response is respectful, complete, and exceptionally well done. Bravo.
    I am especially pleased that Chancellor Martin addressed the concerns about academic freedom that have raised because of this open records request. I feel that her letter describes principles of freedom that apply to everyone.

    The Wisconsin Republican Party failed to catch any fish.
    Expect disparaging remarks to begin in 3, 2, 1….

  11. I am very pleased with this response. It was well-researched, well-thought-out, and protects every ounce of academic freedom and also the integrity of the university every step of the way. Chancellor Martin’s letter was so powerful to me that I couldn’t help but stand up and say, “Oh, snap!” In all seriousness, if the right wing bullies can somehow figure out an effective way to respond without name-calling or further degradation, it will be a miracle. Nicely done, university associates!

  12. Well put by both. Their responses make me very happy for you and all of us in the academy who wish to “continue to ask the difficult questions” without fear of reprisal. Hope this puts this whole ordeal on the path to closure soon. Hang in there. On, Wisconsin!

    Lee F. (Ph.D., ’10)

  13. The University gave this due process, winnowing and sifting, and came up with a response that upholds both rights and academic freedoms.

  14. Do you expect such behavior to continue if our Chancellor is subject to the influence of a new Board of Trustees? Consider who they may well be:

    By picking Cronon these folks were just easing UW-Madison faculty in to the “new reality” — now that we have decided we are “ok” and believe once again in our chancellor, they can lure us further into the lion’s mouth. Mark my words.

  15. As an alum and now an employee at UW-Madison, I have not been in favor of all of Biddy Martin’s actions in the past several weeks, but her letter quoted here redeemed her a considerable distance in my eyes. I was gratified at the way this turned out. The massive publicity you have received by “going viral” is actually a great opportunity to educate people on the importance both of open records laws and academic freedom.

  16. First, I am one of the faculty at UW, but unlike you, I don’t have academic freedom aka not tenured yet. Hence, I will post my comments anonymously (or whatever anonymity today’s Internet provides). And BTW, I am actually a progressive/liberal or whatever term is in fashion these days. I am NOT a Republican, Tea-Party’er, or libertarian..

    Chancellor Martin’s note was outstanding and I commend her for handling this so well. My question and comments are about your role in this,

    So, I have read your blog and followed this saga in detail. I hope in the detailed response, you have promised is forthcoming, you will apologize for unnecessarily escalating this into a “problem”, creating this whole noise and publicity. Chancellor Martin’s note clearly says there was due process, it was followed. So doesn’t this make all your noise and song-and-dance drama unnecessary? Second, I hope you will also apologize for unnecessarily attributing motives and what I see as your aim at a smear campaign on the Republicans and their motives.

    Finally, in light of Chancellor’s response and clearly saying there was *established* due process, can you explain what if anything your calling attention to this record request and the attempt to escalate this into a controversy achieved? Of course you have your rights to write want you want in your blog and say what you want. I am looking forward to hearing your thoughts on your motives. Or were you simply misinformed or uninformed that there was a due process?

    1. If you believe that Cronon is the reason that this “escalated into a problem,” I urge you to go over your information again and think about whether this is a fair and accurate conclusion on your part.

      You claim to have followed this story carefully, so you’ll know that the only things Cronon did on his own–rather than in reaction to actions taken by other people–were to post a blog entry about ALEC (informative, not accusatory, in both tone and content) and write an op-ed for the New York Times. The blog entry clearly did something to grab the attention of the Republican Party, prompting a FOIA request related to Cronon’s use of his state-issued email address. It was this action, and not one taken by Cronon himself, that began to bring this story into the public realm. I agree that Cronon has become his own agent in the wake of the FOIA request, but given the problems that such a request creates for something like the Academy, can you really blame him? He’s been a committed teacher and historical thinker for decades–quite a good one, at that.

      (Note that his op-ed also garnered a lot of attention from various news outlets, but that piece had absolutely nothing to do with ALEC; it focused on Wisconsin’s political history. Only after the FOIA request came to light did this story spring to truly epic national heights, by which point Cronon was already receiving a lot of air time from his op-ed.)

      You say you are not yet tenured, but I assume that someday you would like to be. If that is the case, then I urge you to consider what has been happening to Cronon from the perspective of someone who someday hopes to have the academic freedom that Cronon has been calling attention to over the past week or two. In addition, notice that Cronon may have been the first to be subjected to this (seemingly nationwide) Republican agenda to challenge academic freedom, but there were professors at other universities who have become the victims of this campaign to silence thoughtful academics in the news only days after Cronon’s story took off.

      I urge you to consider the idea that someone was going to have to call attention to this problem that is quickly becoming a national issue. If that person had not been Cronon, it would have been someone else.

      I, for one, see no reason for Cronon to apologize for the words he has written or the actions he has taken over the past weeks. I commend him for the thoughtfulness with which he has addressed everything that the Republican Party of Wisconsin has thrown his way, and I have every reason to believe he will continue to conduct himself with eloquence, grace, and good judgment as this story continues to unfold.

    2. Chancellor Martin’s note clearly says there was due process, it was followed. So doesn’t this make all your noise and song-and-dance drama unnecessary? Second, I hope you will also apologize for unnecessarily attributing motives and what I see as your aim at a smear campaign on the Republicans and their motives.

      Just because there is due process and it was followed does not mean the motives of the Republicans were benign. Likewise, calling attention to the timing and phrasing of the FOIA does not make a “smear campaign”.

      I certainly hope that you don’t teach logic.

  17. Two points; 1. The University should send them a bill for the research time and 2, talk about shooting yourself in the foot. Who had even heard of ALEC before THEY made such a fuss?

  18. I’m not so sanguine about these statements. You work in a contentious area: the nexus of environment, politics, and economics. True, it’s relatively safe if you stay in the realm of history. But researchers who follow current events in this field are going to cause problems for people. One must ask, can a university professor usefully and responsibly work in this area any more, as a member of a university department, and using university communication resources? I would say, not.

    The workings of the machinery of government, both past and present, are legitimate subjects for academic study. In many parts of the world, nations have created phony trappings of democracy. They have imposing parliaments which act with pomp and ceremony to rubber-stamp edicts created in secret and passed down from above. They have much-ballyhooed elections which are just ad campaigns secretly financed and orchestrated by powerful interests. People who kowtow will advance; those who don’t will lose their offices and their privileges. Any study of the workings of government must penetrate the secret area where the actual governance occurs. There’s no point in just recording the video-ops of Dear Leader, the ceremonies in Parliament, or the parades in the capital.

    Someday a researcher will be studying environmental activism in China or Malaysia. A historian may wish to document the freedom movements in the Middle East. An ecologist might find her study area being transformed by mining, or drilling, or climate change here at home. Inquiring minds will want to know who the researcher is talking to, and what they might be talking about. All it will take is a Freedom of Information request to find out. Washington lobbyists will be happy to do the paperwork. The university will then release any emails on the subject. The mere thought that this might happen is enough to steer an academic to another field of inquiry, and intimidate a potential information source into silence.

    You have skillfully dodged a bullet and are to be commended. I worry about people down the line who will find themselves in the crosshairs.

  19. A quote from Eric Heubeck, in “Integration of Theory and Practice: a Program for the New Traditionalist Movement”:

    “We must create a countervailing force that is just as adept as the Left at intimidating people and institutions that are used as tools of left-wing activism but are not ideologically committed, such as Hollywood celebrities, multinational corporations, and university administrators. We must be feared, so that they will think twice before opening their mouths…”

    Besides drafting model legislation, here is another ALEC tactic being employed right now against Professor Cronon and the University of Wisconsin.

  20. This episode has drawn wide attention, including out here in Oregon — I got a link to this page from , a political website oriented mainly to Democratic Party activists plus some “progressive” outliers & Republican and conservative critics. That blog post concerned not only the university response but ALEC itself.

    The episode raises a question about whether emails from state legislators to and from ALEC conducted on state computer equipment, or accessing the ALEC website, and so on, are also proper subjects of public records requests, and whether that may be a way to create cracks in the wall of secrecy surrounding the group? Is use of such equipment for party-political purposes improper in general?

    In the era before email, it seems almost certain that scholars at public universities conducted correspondence sometimes written in their university offices and perhaps mailed at university expense, that involved their personal views of public and political debates at the time, inter alia, and advocacy regarding the same. In my own historical research I have seen such correspondence by scholars at public universities in South Africa in the 1930s, to various correspondents including scholars at private universities in the U.S. I don’t specifically recall any involving scholars at public universities in the U.S., but it would be astonishing if it did not exist and indeed if it was not fairly common.

    Likewise scholars do not keep 9-5 hours. It would surprise me tremendously, Bill, if you do not conduct work at home that is part of your job at the university and that benefits the university. Conversely most if not all scholars I know take time for personal activities while “at work” i.e. in offices or other spaces at the schools where they work. Indeed U. Wisconsin’s letters recognize “personal” electronic correspondence as protected and presumably reflecting a legitimate use of time, perhaps governed by rules or policies imposing some restrictions.

    Thus while I can imagine much worse responses from the University than these, and these may reflect the best that are possible under public records laws, I am not sure about the what the underlying presumptions are about using “university resources” for political purposes. Is it o.k. to write unduplicated letters by hand in a university office? On paper purchased by the university? On letterhead? On a computer and printed on a printer provided by the university or bought with a university subsidy?

    Should public universities be “politics free zones”? This seems to bring us back to Berkeley 1965 & Free Speech Movement territory. Are conditions of employment for public employees, including university professors as well as all the other categories of university employees, illegitimate topics for discussion on campus?

    When Bill was my employment supervisor briefly in the graduate teaching program at Yale in 1990, he pretty deftly navigated separating out working with grad students in various contexts with his personal opposition to our nascent efforts to unionize TAs at the time. We could disagree and yet have mutual respect. He didn’t, nor did the university administration, try to keep us from using “university resources” to hold meetings etc.

    There seems to be a sort of irony in the idea that public universities should be more restrictive in such respects than private ones, particularly in light of the converse situation regarding faculty unionization under the Yeshiva decision.

    1. Chris,

      I raised just that question earlier on and have, in fact, prepared a pair of FOIA requests for the Washington state representatives who are on the board of ALEC. I plan on submitting them today.

  21. Having followed this situation since it first surfaced, I’m pleased with the formal response from the University’s counsel, Mr. Thompson and from the encouraging words from Chancellor Martin. However, it concerns me greatly that not all university teachers will demonstrate such a mature defense of their academic prerogative and not all university administrators will have the courage or weight to support their faculty as we have seen in this instance. How many UW faculty went through their inboxes the last few days purging anything resembling academic speech and how many will be modifying how they communicate with their students and fellow educators? Over the longer term, don’t you expect that this sort of inquisition by the Right or the Left may have a chilling effect on academic discourse? What are you each willing to do to ensure that doesn’t happen? Thank you, Professor Cronon, for demonstrating the standard by which others should respond to similar challenges.

  22. Congratulations on what appears to be a positive resolution of your situation. I’m happy with the response you received from your university, but I must say that the whole incident may have a chilling response on other professors. I personally will be not only watching my emails, which I already do, but now I’m also concerned if I’ll end up on someone’s list for just reading the newspapers on my computer at work. (BTW, I am a faculty member at another institution in the sciences.) Yes, I’m even cowardly enough that I won’t put my real name here. That is what the nasty, attack-all-opponents politics have done to me. It’s gotten so that I don’t think I recognize my country anymore.

  23. The Wisconsin Idea is an extension of the Democratic Idea. The actions of the Wisconsin Republican Party put me in mind of the words of Albert Dean Richardson. As he was touring the south before the Civil War, he stopped in Memphis and queried a colleague about the secessionist movement. His friend replied, “You can hardly imagine how bitterly they hate the Democratic Idea — how they loath the thought that the vote of any laboring man, with a rusty coat and soiled hands, may neutralize that of a wealthy, educated, slave-owning gentleman.”

    Indeed, the birth of the US middle class is rooted in the Civil War era. It appears Wisconsin has not forgotten.

  24. I am happy to see that the University has responded to the FOIA request made by the Republican party. Regardless the motives behind the request, FOIA laws are an essential part of the transparency that must be in place for citizens to know what their government is doing. The principle behind FOIA is far too important to exempt any publicly funded person from its reach, and I believe that the University did a fine job in the balancing of what was necessary and what could or should be excluded, though they hardly need me to tell them this.

    The same point can be applied to Professor Cronon’s initial blog posting regarding ALEC.

    If the Republican party was not happy about a light being shone on a dark corner of its particular ideology, perhaps they are working in the wrong country. The arguments made by them for the release of the Professor’s e-mails are just as valid when they are applied to the information regarding ALEC and what they do.

    Any group that holds a 501(c)3 tax exemption and whose purpose is to write briefs that may eventually become law has, I believe, a responsibility for transparency regarding those writings. It may be that it is not necessary to have them made public at the time that they are considered internally, similar to the ideals of academic freedom that allow colleagues to debate issues without fear of reprisal. However, once these documents enter the public forum, whether that is through e-mail to a public official or download from the ALEC site, those documents should be subject to public scrutiny. I believe that once those documents enter public life, they should be posted to a publicly accessible web site for comment.

    I further believe that if this activity is part and parcel of a 501(c)3 corporation’s purpose for existence, it should be required that they explicitly state so in their public papers. I am, perhaps, exposing my lack of knowledge regarding these groups, which is mountainous, but I am merely stating how I think things should be with, sadly, not as much knowledge as I should or will have regarding them. The principles are, I believe, valid.

    The Professor’s initial blog posting performed a vital public service in announcing the presence of this group that many people were unaware of. He has performed a valuable service to many and my hope is that he continues to do so. We need many more like him.

  25. Thank you, Professor Cronon, for posting the chancellor and legal counsel’s responses to the open records request. Both are perfectly worded and reasoned.

    I was very sorry to read in an article on the Capital Times website today that you’re thinking seriously about whether you can stay at the university if you have to deal with open records requests like this one (which I agree was an attempt at “intellectual intimidation”). I hope you will stay.

    That article quotes a number of other people commenting on the open records request, and it mentioned that some of the people contacted for comments “shrugged their shoulders at the tactic and questioned if it would truly dampen scholarly inquiry.”

    One of those people is Richard Vedder, professor of economics at Ohio University. What the article DOESN’T mention is that Vedder has a long association with the American Legislative Exchange Council and that he received ALEC’s Adam Smith Free Enterprise Award in 2008: . In his speech accepting the award Vedder gushed about ALEC as “a wonderful organization” and said the award was “certainly one of the highlights” of his professional life. You wouldn’t expect him to be very critical of an open records request for the emails of a professor who directed so much unwelcome attention to ALEC.

  26. I am not sure that this was not the best outcome. The Walker administration did not admit its mistake or withdraw the FOIA request. A better result would be to scrap the whole plan to separate UW Madison from the rest of the UW system. Walker must not appoint a new board of regents. His appointees would act just like his administration; they would use similar tactics to intimidate critics and act in the interest of the ALEC instead of the people of Wisconsin. Walker appointees can not be trusted with higher education.

  27. I posted a comment here a couple of days ago about a Capital Times article quoting an Ohio economics professor who sounded rather dismissive of the Wisconsin GOP’s attempt to intimidate Professor Cronon after he wrote about ALEC. That article failed to point out that the economics professor had long been associated with ALEC and had received an award from ALEC, information I considered crucial.

    Today’s Capital Times includes an opinion piece by “education author” Naomi Schaefer Riley, a piece that is also, in my opinion, unfairly critical of Professor Cronon. ( ) The piece appeared first in the Washington Post, and possibly the Post is to blame for the very brief biographical information on Riley not really helping to explain her own obvious biases.

    So I want to add, for the benefit of Professor Cronon and anyone else who read that piece, that although it’s true that Riley used to write for the Wall Street Journal, it’s also true that she’s written for the Weekly Standard and National Review, whose right-wing biases are well known and even more extreme than the WSJ’s. I don’t know if any right-wing foundation gave her a grant to help her write her forthcoming book, but an earlier book of hers, “God on the Quad,” was written with the help of grants from the right-wing Randolph Foundation and the John M. Olin Foundation. She was an adjunct fellow at the conservative Ethics and Public Policy Center. ( ) And she was a recipient of the Charles G. Koch Fellowship.

    Despite her clear alignment with right-wing publications and foundations, she still gives guest lectures and seminars at colleges, as she explains on her website. So, despite her obvious partisanship, she’s still at least sometimes involved in teaching — though she dares to criticize Professor Cronon for his interest in environmental issues, suggesting he’s too partisan and too much of an “activist.”

  28. Congratulations Professor Cronon and to the University of Wisconsin! The responses from UW officials and you were reasonable and measured in the face of unreasonable and well calculated attacks on academia. I’m thrilled to see our great institution continue to be a paragon of reason!

  29. Moral of the story: don’t use your official university account for anything but the most innocuous work-related communication. Those of us who work in the private sector have little or no expectation of email privacy and have changed our behavior accordingly.

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