Posts Tagged ‘sifting and winnowing’
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 @wisc.edu 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.
LETTER FROM JOHN C. DOWLING TO STEPHAN THOMPSON, 4/1/11
Original available as PDF here.
April 1, 2011
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
STATEMENT BY UW-MADISON CHANCELLOR BIDDY MARTIN, 4/1/11Members 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
A Tactic I Hope Republicans Will Rethink:
Using the Open Records Law to Intimidate Critics
Here’s the headline: the Wisconsin Republican Party has issued an Open Records Law request for access to my emails since January 1 in response to a blog entry I posted on March 15 concerning the role of the American Legislative Exchange Council (ALEC) in influencing recent legislation in this state and across the country. I find this a disturbing development, and hope readers will bear with me as I explain the strange circumstances in which I find myself as a result.
Bill Cronon Posts His First-Ever Blog Entry
Last week was quite a roller coaster for me. I spent the weekend of March 12-13 drafting an op-ed for the New York Times (published on March 22, and available at this link: http://www.nytimes.com/2011/03/22/opinion/22cronon.html) about the several ways in which I believe that Scott Walker and the current leadership of the Republican Party in Wisconsin have departed not just from the longstanding culture of civility and good government in this state, but in fact from important traditions of their own party. In the course of writing that op-ed, I did some research trying to figure out where the current wave of conservative legislation in Wisconsin and elsewhere might be coming from.
As a result, last Tuesday night, March 15, I launched my first-ever entry for a blog I had long been planning on the theme of “Scholar as Citizen,” about how thoughtful scholarship can contribute to better understandings of issues and debates in the public realm. In my first blog entry, I published a study guide exploring the question “Who’s Really Behind Recent Republican Legislation in Wisconsin and Elsewhere?” I by no means had all the answers to this question, but I thought I had found enough useful leads that it was worth sharing them to help others investigate the American Legislative Exchange Council further. So I posted the link for the blog on Facebook and Twitter, sat back, and hoped that viral communication would bring the blog to people who might find it useful.
My little ALEC study guide succeeded beyond my wildest dreams. Within two days, the blog had received over half a million hits, had been read by tens of thousands of people, had been linked by newspapers all over the United States, and had been visited by people from more than two dozen foreign countries. Many readers expressed considerable interest in the activities of the American Legislative Exchange Council (ALEC), and said they were grateful for the guidance I had tried to provide for people wishing to learn more about it. (A smaller number of readers were much more hostile, and you can read their comments on the blog.)
All this was welcome, and I’m greatly heartened by the thought that an organization that has exercised such extraordinary but almost invisible influence over American political life for the past forty years may finally start to receive more of the scrutiny that its far-reaching activities deserve.
The Wisconsin Republican Party Expresses Its Displeasure
What I did not anticipate—though I guess I should have seen it coming, given everything else that has happened in Wisconsin over the past couple months—was the communication that the University of Wisconsin-Madison received on Thursday afternoon, March 17—less than two days after I posted my blog—formally requesting under the state’s Open Records Law copies of all emails sent from or received by my University of Wisconsin—Madison email address pertaining to matters raised in my blog. (The acronym in many other states and in the Federal government for the laws under which such a request is usually made is “FOIA,” named for the federal Freedom of Information Act. You can read the text of the Wisconsin Open Records Law here: http://legis.wisconsin.gov/statutes/stat0019.pdf,
and learn more about its application here:
Remarkably, the request was sent to the university’s legal office by Stephan Thompson of the Republican Party of Wisconsin, with no effort to obscure the political motivations behind it. Here’s what Mr. Thompson sent to the University’s attorneys:
From: Stephan Thompson [mailto:SThompson@wisgop.org]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John
Subject: Open Records Request
Dear Mr. Dowling,
Under Wisconsin open records law, we are requesting copies of the following items:
Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which 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.
We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”
Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.
Republican Party of Wisconsin
(I apologize again for the length of this blog posting; if you don’t have time to read it all, feel free to skip to the final three sections, which try to summarize what’s at stake in this request.)
Why Did the Republican Party Make This Request?
Under Wisconsin’s Open Records Law, anyone has the right to request access to the state’s public records, and can do so without either identifying themselves or stating the reasons for their interest in those records. But since Mr. Thompson made no effort to hide his identity or his affiliation with the Republican Party, since his request came so soon after my ALEC study guide was published, and since he provided search terms to identify the particular emails that most interested him, it’s not too hard to connect the dots to figure out what this request is all about.
Let’s subject Mr. Thompson’s email to some textual analysis. That is, after all, what we historians do: we read documents and try to interpret their meanings.
The timing of Mr. Thompson’s request surely means that it is a response to my blog posting about the American Legislative Exchange Council, since I have never before been the subject of an Open Records request, and nothing in my prior professional life has ever attracted this kind of attention from the Republican Party. It doesn’t take a great leap of logic to infer that Mr. Thompson and his colleagues aren’t particularly eager to have a state university professor asking awkward questions about the dealings of state Republicans with the American Legislative Exchange Council. This open records request apparently seemed to Mr. Thompson to be a good way to discourage me from sticking my nose in places he doesn’t think it belongs.
I confess that I’m surprised to find myself in this strange position, since (as I said in my earlier blog post) my professional interest as a historian has always been to research and understand the full spectrum of American political opinion. I often spend as much time defending Republican and conservative points of view to my liberal friends as vice versa. (For what it’s worth, I have never belonged to either party.) But Mr. Thompson obviously read my blog post as an all-out attack on the interests of his party, and his open records request seems designed to give him what he hopes will be ammunition he can use to embarrass, undermine, and ultimately silence me.
One obvious conclusion I draw is that my study guide about the role of ALEC in Wisconsin politics must come pretty close to hitting a bull’s-eye. Why else would the Republican Party of Wisconsin feel the need to single out a lone university professor for such uncomfortable attention?
What Is the Republican Party Hoping to Find in My Emails?
But let’s read the request more carefully. How does Mr. Thompson think he can hurt me with an open records request seeking access to my emails since January 1, 2011?
One answer is that the University of Wisconsin-Madison has explicit policies about appropriate use of its email accounts. In general, students and faculty members are only supposed to use their state email addresses for communications clearly related to the educational mission of the university.
Much more important, there is an explicit prohibition against individuals using state email addresses for partisan political purposes. Here’s the crucial sentence: “University employees may not use these resources to support the nomination of any person for political office or to influence a vote in any election or referendum.” (You can read these policies for yourself at http://www.cio.wisc.edu/policies/appropriateuse.aspx.)
I’d be willing to bet quite a lot of money that Mr. Thompson and the State Republican Party are hoping that I’ve been violating this policy so they can use my own emails to prove that I’m a liberal activist who is using my state email account to engage in illegal lobbying and efforts to influence elections. By releasing emails to demonstrate this, they’re hoping they can embarrass me enough to silence me as a critic.
What Story Does the Republican Party Hope to Tell Using My Emails?
The narrative they would like to spin about me seems pretty clear from the search terms they’ve included in their open records request. For instance, they name eleven politicians in that request. Three of these–Governor Scott Walker; Speaker of the Assembly Jeff Fitzgerald; and his brother, Senate Majority Leader Scott Fitzgerald—are the Republican leaders who have engineered and led the policies that have produced so much upset in the State of Wisconsin over the past two months. They would thus likely be lightning rods for any inappropriately partisan emails one might be tempted to send as a state employee using a state email account.
But the other eight Republican legislators named in Mr. Thompson’s open records request are probably even more important: Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Sheila Harsdorf, Luther Olsen, Glenn Grothman, and Mary Lazich. Why seek Bill Cronon’s emails relating to these individuals? Answer: because they’re the eight Republicans currently targeted by petition campaigns seeking to hold early recall elections in response to recent legislation.
It’s these eight names, in combination with a search for emails containing the words “Republican” and “recall,” that Mr. Thompson is hoping he can use to prove that Bill Cronon has been engaging in illegal use of state emails to lobby for recall elections designed to defeat Republicans who voted for the Governor’s Budget Repair Bill. (One might also infer from his request that a blog post about the influence of ALEC on Wisconsin politics might somehow have an impact on those recall elections—a thought that wasn’t much on my mind when I put together my ALEC study guide, but that seems more intriguing now that we see how forcefully the Republican Party has responded.)
In this context, the remaining search terms are almost certainly intended to supply a key additional element in a narrative designed to undermine a professorial critic not only for misusing state email resources, but for being a puppet of the public employee unions which Mr. Thompson and his Republican allies would like the wider public to believe are chiefly responsible for criticisms of their policies. The request for emails containing the search phrases “AFSCME” and “WEAC” are of course seeking emails to or from or relating to the two largest public employee unions in Wisconsin. Marty Beil and Mary Bell—also named in Mr. Thompson’s request—are the leaders of those two organizations. Emails containing the words “rally,” “union,” and “collective bargaining” would just be the icing on the cake to show that I’m a wild-eyed union ideologue completely out of touch with the true interests of the citizens and taxpayers of Wisconsin.
I suspect this is the story Mr. Thompson would like to be able to tell about me if his open records request yields the pay dirt he imagines he will find in my emails.
Should Political Parties Use the Open Records Law to Try to Silence Their Critics?
If I’m right that this is the kind of story Mr. Thompson hopes to be able to tell about me, what should the rest of us think about that story and his desire to tell it?
My most important observation is that I find it simply outrageous that the Wisconsin Republican Party would seek to employ the state’s Open Records Law for the nakedly political purpose of trying to embarrass, harass, or silence a university professor (and a citizen) who has asked legitimate questions and identified potentially legitimate criticisms concerning the influence of a national organization on state legislative activity. I’m offended by this not just because it’s yet another abuse of law and procedure that has seemingly become standard operating procedure for the state’s Republican Party under Governor Walker, but because it’s such an obvious assault on academic freedom at a great research university that helped invent the concept of academic freedom way back in 1894. I’ll return to that 1894 story at the end of this blog entry.
FOIA: A Precious Asset of Democracy in the United States
Having expressed my outrage, though, I can’t in good faith just rail against Wisconsin’s admirably strong Open Records Law or the legal traditions surrounding our nation’s Freedom of Information Act (FOIA). First signed into law by Lyndon Johnson in 1966, the Freedom of Information Act is a bastion of American democracy, making it possible for citizens to scrutinize the actions of their government and elected officials in ways that are possible in few other nations on earth. FOIA is a precious political heritage of the United States, and I would not want to argue that public universities should enjoy a blanket exemption from its requirements. Over and over again, FOIA and its state-level statutory analogs have enabled journalists, historians, and other scholars to research and analyze governmental activities that would otherwise be completely invisible to ordinary citizens.
When should FOIA and Wisconsin’s Open Records Law apply to universities?
Answer: When there is good reason to believe that wrongdoing has occurred. When formal academic governance proceedings are making important decisions that the public has a right to know about. When teachers engage in abusive relationships with their students. When the documents being requested have to do with official university business. And so on.
When should we be more cautious about applying such laws to universities?
Answer: When FOIA is used to harass individual faculty members for asking awkward questions, researching unpopular topics, making uncomfortable arguments, or pursuing lines of inquiry that powerful people would prefer to suppress. If that happens, FOIA and the Open Records Law can too easily become tools for silencing legitimate intellectual inquiries and voices of dissent—whether these emanate from the left or the right or (as in my case) the center. It is precisely this fear of intellectual inquiry being stifled by the abuse of state power that has long led scholars and scientists to cherish the phrase “academic freedom” as passionately as most Americans cherish such phrases as “free speech” and “the First Amendment.”
It is chilling indeed to think that the Republican Party of my state has asked to have access to the emails of a lone professor in the hope of finding messages they can use to attack and discredit that professor. It makes me wonder if they have given even the slightest thought to what would happen to the reputation of this state and of its universities if they were to succeed in such an effort.
It also makes me wonder how a party so passionate in its commitment to liberty and to protecting citizens from abuses of state power can justify resorting to this particular exercise of state power with the goal of trying to silence a critic of its own conduct.
What Does Bill Cronon Have to Hide?
By now, you’re probably beginning to wonder “What does Bill Cronon have to hide?” That is, of course, one of the predictable narrative elements of the drama that Mr. Thompson and his party have tried to set in motion by making their request. If the victim of the request begins to squirm and tries to prevent release of the requested emails, we can all be forgiven for beginning to think they must contain something pretty interesting for the victim to make such a fuss about them.
That’s how these kinds of stories work: even if they turn up nothing at all, they can damage the victim simply by implying that he might have something to hide.
So let me quickly say that my outrage at Mr. Thompson’s request does not derive from fear—though I’d be lying if I said I’m not nervous about the prospect of having the Republican Party and its allies combing through my private and professional life in an effort to hurt or discredit me. I am, after all, a chaired, tenured professor at one of the greatest research universities in the world—an institution that has a proud tradition of defending academic freedom from precisely the kinds of attacks that Mr. Thompson is trying to launch.
I’m here in Wisconsin because I love this state with all my heart, and I hope disinterested readers will recognize that the questions I’ve asked are a reflection not of partisanship but of a citizen’s love for his state and its traditions—and a historian’s fascination for the story of how American politics works. I don’t think it would be easy for Republican state officials to fire me—and even if they did succeed in hounding me to resign, I have no doubt that I could easily get a job at another university where I would actually earn a lot more money. (I’m very far from being one of those mythical Wisconsin workers who is earning lots more money by virtue of being a public employee; I could almost certainly increase my salary a great deal by moving to a private university in another state.)
Is It Naïve to Believe That the Best Defense is … the Truth?
But there’s a much more important reason I feel far less fear than anger at Mr. Thompson’s open records request, which is simply this: I haven’t actually done anything wrong.
Ever since moving to Wisconsin from Yale in the early 1990s, I have been careful to maintain a separation between my public @wisc.edu email address and my personal email address. I use the latter for all communications with family members and friends, and I use it too for any activities of mine that might be construed as political rather than scholarly (though the boundaries between these two categories is harder to draw for a scholar of the modern United States than non-scholars might imagine). I have always owned my own computers, because I haven’t wanted to worry about whether my personal and professional emails are mingling on a state-owned machine in ways that would violate Wisconsin’s rules about using state property for personal or political communication.
The irony goes deeper still. As any careful reader of my blog about ALEC will probably have noticed—though I get the feeling that Mr. Thompson and his colleagues may not be such careful readers—I did not raise the questions I did about ALEC from a partisan point of view. Quite the contrary. I tried to write with real respect about the history of the conservative movement in the United States, because I genuinely do respect that movement and believe it has made many important contributions to our political life. Although I do have serious criticisms of the role ALEC has played in our politics, my concerns have to do with threats to core American notions of due process and transparent governance. I worked hard to avoid partisan criticism, enough so that I’m pretty sure many readers to my left thought that I wasn’t nearly critical enough in what I wrote.
But all of this seems to have been lost on Mr. Thompson and the Wisconsin Republican Party. They’re eager to see my emails in the hope that they might punish and silence me for what I wrote.
I should add that even if I had written from either the left or the right end of the political spectrum, I still think we should oppose this kind of politically motivated intrusion on the intellectual life of universities. If he had directed the same kind of inquiry against a colleague who was more liberal or conservative in their political views than I am, it would be just as objectionable.
Here, alas, there are cautionary historical precedents that we would all do well to remember.
In the op-ed I published in the New York Times on March 22, I drew a carefully delimited analogy between what is happening in Wisconsin today and the partisan turmoil that Wisconsin Senator Joseph McCarthy worked so hard to create in the early 1950s. McCarthy, of course, thought nothing of trying to have university faculty members fired from their jobs because he believed they held objectionable political views—and many were indeed fired as a result. The kind of intervention happening in this case isn’t so overt: Mr. Thompson hasn’t yet issued a demand for me to be disciplined or fired. But it’s hard not to draw an analogy between this effort to seek of evidence of wrongdoing on my part (because I asked awkward but legitimate questions about an organization with close ties to the Republican Party) and the legal and professional consequences that might follow the discovery of such evidence.
Joe McCarthy was a master of using allegation and innuendo to tar the reputations of those he “investigated,” and I would argue that we should all be very firm in defending academic freedom across the entire political spectrum against that kind of political abuse. The fact that the Open Records Law is now available as a potential tool for undermining one’s enemies doesn’t make the resulting “investigations” any less sinister in their potentially chilling effects for the intellectual life of universities.
If There’s Nothing to Hide, Why Not Just Release These Emails?
If, as I believe, emails flagged by Mr. Thompson’s open records request contain nothing that represents an abuse of a state email account, and no politically inappropriate activities by myself as a state employee, why not just release them?
My answer is that records administrators and courts in Wisconsin are asked to perform a “balancing test” when deciding whether the very strong presumption in favor of full disclosure overrides other public policy considerations. Although legal precedents in Wisconsin insist that there can be no non-statutory blanket exclusions from the public records law, I’d like to argue that there are good public policy reasons why not even the Wisconsin Republican Party should seek to intrude for political reasons on the professional and personal communications of a University of Wisconsin faculty member.
Let me offer just a few concrete examples.
A number of the emails caught in the net of Mr. Thompson’s open records request are messages between myself and my students. All thus fall within the purview of the Family Educational Right to Privacy Act (FERPA, sometimes known as the “Buckley Amendment,” named for its author Senator James Buckley—the brother of conservative intellectual William F. Buckley). The Buckley Amendment makes it illegal for colleges or universities to release student records without the permission of those students, and is thus in direct conflict with the Wisconsin Open Records Law and Mr. Thompson’s request on behalf of the Wisconsin Republican Party. I don’t know whether Mr. Thompson intended his request to generate a wholesale release of student records, but I myself think that doing so would represent a dangerous intrusion on student privacy. I’m pretty sure the law supports me in this view. If you’d like to review the terms of FERPA, see
Many more of the emails that would be released under this open records request are communications with colleagues of mine at other institutions about various matters that have nothing whatsoever to do with Wisconsin politics or the official business of the University of Wisconsin-Madison—but they do involve academic work that typically assumes a significant degree of privacy and confidentiality. (Many happen to include one or more of the requested search terms because these are widely used words in the English language—for instance, a writer recalling the role of the Union Army in the post-Civil War electoral success of the Republican Party would get caught by this search three times over.) The emails include, for instance, conversations with authors and editors about book manuscripts, and also the deliberations of two professional boards on which I sit, the Organization of American Historians (OAH) and the American Historical Association (AHA), the latter of which I now serve as President-Elect. Online email exchanges among members of these boards are expected to be confidential, so that all of us are admonished not to share each other’s emails lest doing so discourage colleagues from being candid in sharing their views.
Even though it’s not part of official university business, I have always used my University of Wisconsin-Madison email address in professional communications of this kind, because I’m proud to declare my association with this university and this state. Neither I nor my academic correspondents imagined that my doing so might put the confidentiality of our communications at risk, and I would very much regret having to announce to the world that colleagues can no longer communicate with me using my UW-Madison email address for fear that politically motivated use of the Public Records Law might intrude on what are meant to be confidential communications. If these discussions involved something unethical or illegal, then of course a FOIA request might be appropriate—though so too would a court-ordered subpoena, which has much greater legal power to intrude on private communications.
But a political fishing expedition with the purpose of causing embarrassment to correspondents seems sure to have a severe chilling effect that could only undermine the university’s longstanding reputation for defending academic freedom.
Sifting and Winnowing
Why should anyone not at the university care about all this?
Most of my professional colleagues will instantly recognize this request for access to a professor’s emails as a potential threat to academic freedom: an effort by a powerful political group—the Republican Party of my own state, no less—to seek weapons they can use against me. Most of us would feel at least a little nervous about giving someone carte blanche to rummage through our online communications, and in the academic world this raises special concerns because such inquiries have often in the past been used to suppress unpopular ideas.
In fact, one of the most celebrated moments in the history of American academic freedom happened right here at the University of Wisconsin in 1894. In July of that year, a member of the UW Board of Regents named Oliver E. Wells wrote a letter to The Nation magazine entitled “The College Anarchist.” In it, he accused UW Professor Richard Ely, one of the nation’s leading economists, of being an anarchist and socialist for his work exploring the positive roles that labor unions could play in the American economy. Wells sought to have Ely fired from his UW faculty position, and this prompted the appointment of a special committee of the Board of Regents to investigate Wells’ allegations. The result was a report that ended with one of the most ringing endorsements of academic freedom ever made in the United States, now emblazoned on a bronze tablet by the front door of UW-Madison’s Bascom Hall:
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.
If you’d like to learn more about this famous story, there are good accounts at the following links:
Why Do I Hope the Republican Party Might Withdraw This Request?
Let me conclude by repeating that I have nothing to hide in the emails I have sent and received using my UW-Madison email account, but I think we will all lose if the Republican Party of Wisconsin insists on pursuing the reckless course of action that has prompted it to issue this Open Records Law request. If the University of Wisconsin-Madison is forced to turn over my emails in response to this request, here are some of the things that are put at risk:
1) Questions will inevitably be asked about whether the University and the State of Wisconsin have struck a proper balance between the unquestioned value of open records for the democratic oversight of formal governmental processes and the rights of privacy for students and faculty members at a research university to pursue lines of inquiry even if they offend powerful political interests.
2) Anyone using email to communicate with University of Wisconsin professors will likely have second thoughts about whether they can afford to be candid and honest in such emails.
3) When a faculty member like myself becomes an officer of a major scholarly organization, questions may be raised about whether it is wise or safe to use UW-Madison email addresses for communications relating to that organization.
4) If such requests were to become a common feature of life at UW-Madison, it would likely become much harder for the university to recruit the best professors in the country to join its faculty—and it’s easy to imagine the most marketable professors leaving our campus if subjected to this kind of harassment.
Faculty members like me can probably avoid many of these problems by never using their UW email addresses for any of their professional communications, even with their own students…but that in itself would seem to be a most unfortunate outcome of the Republican Party’s reckless action. I have always felt honored to use my @wisc.edu address when communicating with colleagues as a way to declare the delight and privilege I feel being a faculty member at the University of Wisconsin-Madison. Ceasing that practice, or adding a note to all my emails warning colleagues that they must always be cautious when they write me lest political inquiries intrude upon our private communications: I would feel a deep sense of regret about such an outcome and the chilling effect it would have on virtually all university communications.
Abusing Essential Tools of Democracy
I want to close by repeating that I support the Open Records Law and the freedom of information traditions of the United States. They are precious guardians of our democratic liberties.
But this particular request demonstrates that they also have the potential to be abused in ways that discourage dissent and undermine democracy.
Here, it’s not too much of a stretch to draw an analogy to the abuse of the subpoena power that was one of Senator Joseph McCarthy’s most dangerous tactics during the 1950s. The subpoena power too is crucial to our democracy: the criminal justice system could not work without the power to compel witnesses to testify, and Congress needs a similar power to compel testimony if its deliberations are to be properly informed. As with open records, our democracy would be far less effective if the subpoena power did not exist. The same can be said of the Fifth Amendment, which exists to protect individuals from having to give self-incriminating testimony in response to the subpoena power—but McCarthy was skilled at undermining that bulwark of American liberty as well.
When such tools are turned toward purely partisan ends, and when they are used with the express purpose of intimidating or punishing those with whom powerful people disagree, then precious institutions of democracy are deployed to subvert the very liberties we all cherish. It is for this reason that I have spent so much time trying to articulate why I don’t believe the Wisconsin Republican Party should be invoking the Open Records Law to single me out for scrutiny—and implicitly for punishment—in this way.
The consequences of this highly politicized Open Records Law request, in other words, in which one of Wisconsin’s two great political parties seeks to punish a faculty member at its state university by seeking access to that professor’s emails, seem potentially so damaging to the University, the State, and even to the Republican Party itself that my idealistic self hopes even Mr. Thompson and his Republican colleagues will see the dangers in the tactic they have deployed.
This is very different from asking an elected official or a government agency to turn over emails relating to their formal duties and their formal exercise of state power. It asks a university professor to turn over personal emails relating to the day-to-day life of an intellectual community in its “sifting and winnowing” in pursuit of truth. This would not happen at private universities like Harvard or Stanford, and I would like to think it shouldn’t happen at the University of Wisconsin-Madison, which has played a more central role in defining and defending academic freedom than most other institutions in the United States.
If the University cannot avoid turning over my emails, then so be it. But I truly do hope that wiser heads in the Republican Party will prevail, and that this Open Records Law request will be seen for what it is: an ill-advised political intervention into traditions of academic freedom that are among the proudest legacies of this state.