Zach Greenberg: Striking the Balance Between Academic Freedom and Transparency in Higher Education

After more than 1,100 law professors sent an open letter opposing the nomination of Senator Jeff Sessions for Attorney General, many received something wholly unexpected in return: open records requests for their university-account emails containing the words “Sessions,” “Jeff Sessions,” or “Attorney General.” These requests highlight the need to strike a balance between academic freedom and transparency in higher education.

Commonly dubbed “sunshine laws” for shedding light on various government functions, open records laws are often lauded for promoting transparency and accountability in government. James Madison, writing long before the advent of such laws, extolled “the right of freely examining public characters and measures, and of free communication thereon” as “the only effectual guardian of every other right.” Today, these laws are used to request information from state actors — including professors at public universities, since they are government employees.

However, open records laws can conflict with academic freedom when they are used to target professors who have discussed, taught, researched, or published scholarship on controversial topics. Because the process of responding to open records requests can be burdensome and invasive, professors are discouraged from speaking out on issues that might trigger such requests, even issues that are essential to their academic research. Faced with the threat of politically motivated witch hunts designed to unearth dirt on targeted professors — which have come from both the left and the right sides of the political spectrum — many will understandably stay far away from certain topics out of fear of a prolonged investigation into their university email accounts.

Numerous professors and colleges have fought back against the abuse of open records requests, resulting in litigation over these laws on First Amendment grounds. While courts have long considered academic freedom “a special concern of the First Amendment,” there is considerable uncertainty as to what exactly this means in practice. Several states provide clarity on this issue by incorporating carve-outs for academic speech in their open records laws. Courts have relied on these exemptions as well as those protecting privacy in ruling that universities did not violate open records laws by refusing to disclose professors’ unpublished academic research.

When outspoken professors become the subject of open records requests, the virtues of transparency and accountability must be balanced against academic freedom. To strike this balance, open records laws should be reformed to exempt professors’ academic communications and unpublished research, as several states have already done. However, if these exemptions are drafted or construed too broadly, it would unduly shield university employees from public scrutiny. Thus, it is crucial that open records laws be carefully designed and applied to harmonize these core values.

Several legal scholars have weighed in on how this balance should be struck. Rachel Levinson-Waldman, Senior Counsel to the Brennan Center’s Liberty and National Security Program, wrote a comprehensive piece on the chilling effect of open records requests for scholarship and how to combat it. Also, the Foundation for Individual Rights in Education (FIRE, where I work), has developed a model resolution and model exemptions for open records laws to better protect academic freedom. We look forward to working with legislators, administrators, professors, and students to better understand and address this nuanced issue.

The Harvard CR-CL Amicus blog posts solicited content in an effort to feature debate and various perspectives. Zach Greenberg is a Justice Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education (FIRE), a nonpartisan, nonprofit organization focused on freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

 

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Samantha is a 2L at HLS. She is interested criminal justice reform and plans to pursue a career in public defense. She currently works as a student attorney at the Harvard Prison Legal Assistance Project and is a co-director of the Harvard ACLU's Criminal Law Reform group. During her 1L summer, Samantha worked on state habeas corpus petitions for death row inmates at the Office of Capital and Forensic Writs in Austin, Texas. Prior to law school she worked as a paralegal at a criminal defense law firm, and received her B.A. in History from Brown University

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