June 30, 2010 — Lawyers representing the University of Virginia filed a brief Tuesday in Albemarle County Circuit Court supporting the University's May 27 petition to set aside Virginia Attorney General Kenneth T. Cuccinelli's Civil Investigative Demands.
In the two demands, which were first issued on April 23, Cuccinelli sought from the University extensive information relating to research conducted by Michael Mann, an assistant professor of environmental sciences at the University from 1999 to 2005. Mann, who has since joined the faculty of The Pennsylvania State University, is known for his research on global warming.
The CIDs issued to the University request information and documents in connection with five grants as well as correspondence between Mann and more than 40 scientists and other individuals over an 11-year period. The five grants at issue – four of them awarded by federal agencies and involving the disbursement of federal funds – totaled some $466,000.
The brief filed Tuesday challenges the validity of the CIDs, calling them "fundamentally legally flawed," further stating that "enforcing them will set a harmful precedent for the Commonwealth and all of its institutions of higher learning."
The CIDs were issued pursuant to Virginia's Fraud Against Taxpayers Act, or FATA, which provides civil penalties for fraud committed on Commonwealth taxpayers, according to the brief. The attorney general's authority under FATA is limited to investigating potential violations of FATA – not, as U.Va. argues in the brief, "to probing the merits of scientific theories or furthering some other agenda. Yet that is all these CIDs do. What the CIDs do not do is satisfy the basic statutory requirements for their issuance."
The 28-page brief and its 300-plus pages of supporting exhibits lay out, among other things, the University's legal arguments as to why the CIDs fail to meet statutory requirements of FATA.
The federal grants which are being targeted in the CIDs involved federal funds disbursed by federal agencies, despite the fact that FATA does not authorize investigations of fraud in procurement of federal funds, the brief states. FATA is limited to investigations of fraud in procurement state funds.
The fifth grant was made from internal University funds in 2001, two years prior to FATA's existence.
Other arguments in the University's filing include the fact that the CIDs were "breathtakingly overbroad" and they infringe upon academic freedom.
Citing a 1957 U.S. Supreme Court case – Sweezy v. New Hampshire – "(t)he essentiality of freedom in the community of American universities is almost self-evident. … To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate."
On May 14, University President John T. Casteen III announced that the Board of Visitors had engaged the law firm of Hogan Lovells and its premier education practice group to represent and advise the University in its response to the CIDs.
U.Va. Rector John O. Wynne said at that time that the University is prepared to fight for the right of its research faculty to engage in debate and free expression without fear of reprisal. "We are fighting for preservation of the basic principles on which our country was founded," he said.