Critics hit U.Va. Prof. Douglas Laycock with FOIA

by Walter Olson on May 26, 2014

Prof. Douglas Laycock of the University of Virginia is among the nation’s leading law-and-religion scholars. Many of his positions on church-state matters would normally be taken for quite liberal; for example, he argued the recent Supreme Court case of Town of Greece v. Galloway on behalf of those objecting to sectarian prayer of any sort before town council meetings. At the same time, as noted on an earlier occasion, Prof. Laycock happens to favor a broad application of religious-accommodation laws such as the federal Religious Freedom Restoration Act of 1993. This has led him to support proposals for state RFRAs with broad definitions, like the one recently vetoed in Arizona, and also to file an amicus brief on behalf of employer Hobby Lobby in Sebelius v. Hobby Lobby.

Now comes the price to pay [Charlottesville Daily Progress]:

Laycock, who is married to UVa President Teresa A. Sullivan, is the subject of a Freedom of Information Act records request by two UVa student activists — Gregory Lewis and Stephanie Montenegro. In an open letter to the professor, Lewis and Montenegro said that while they respect Laycock’s right to academic freedom, they believe his writings supporting controversial religious freedom laws are holding back progressive causes such as access to contraceptives and gay marriage.

An outside group has been promoting the action [C-ville.com]:

“His work, whether he understands it or realizes it or not, is being used by folks who want to institute discrimination into law,” said Heather Cronk, co-director of Berkeley, California-based LGBT activist group GetEQUAL. …

Through the activist group Virginia Student Power Network, GetEQUAL found two UVA students willing to take up the cause of calling out Laycock: rising fourth-year Greg Lewis and now-alum Stephanie Montenegro. Last week, the pair sent an open letter to Laycock asking him to consider the “real-world consequences that [his] work is having.” They also submitted a Freedom of Information Act request seeking e-mails between Laycock and various right-wing and religious liberty groups. … Meanwhile, GetEQUAL has launched a national e-mail campaign calling out Laycock for his role in shoring up the legal arguments of those who support “religious bigotry.”

If the issue of FOIA-ing U.Va. professors rings a bell, it’s because it’s happened at least twice before. Around 2009 Greenpeace, the environmental activist group, FOIAed the university demanding correspondence and documents relating to former professor Patrick Michaels (now at Cato), who had espoused skeptical views on global warming. Then allies of former Virginia attorney general Ken Cuccinelli filed a FOIA request seeking similar documents for Michael Mann, a prominent advocate of global warming theories. [C-ville.com, WaPo]

No one could doubt that Laycock’s views on religious accommodation are part of a set of intellectually derived convictions that run through decades of his work. (In addition to opposing such forms of church-state entanglement as officially sponsored prayer, he supports the right of gays to marry.) It’s simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.

Of course, the student activists deny that anything like that is on their minds:

Lewis said they’re not trying to smear Laycock, and they’re not trying to undermine academic freedom. They just want a dialogue, he said.

Prof. Bainbridge isn’t buying it:

[B.S.] You don’t start a dialogue with FOIA requests. ….It’s time to start fighting back.

It might also be time for legislators to clarify state open-records laws to determine under what circumstances they can be used to go after academics, and consider altering them, where appropriate, to provide for financial or other sanctions when they are misused.

Note also: conservative-leaning groups have launched a series of FOIA requests seeking records of professors at state universities in North Carolina, Virginia, Wisconsin, Michigan, and Texas. The left-leaning Institute for Southern Studies has a critical account here. (& welcome readers from Steve Miller, IGF; Paul Caron, TaxProf; Jonathan Adler, Volokh; Ramesh Ponnuru/NRO “Corner”; Prof. Bainbridge; Will Creeley/FIRE; Dahlia Lithwick, Slate; Megan McArdle, Bloomberg View)

{ 5 trackbacks }

No Faith-Based Exemptions from the Dictates of the State? — IGF Culture Watch
05.26.14 at 3:33 pm
The Purge » Right Thinking
05.27.14 at 12:36 pm
FRC Blog » FREEDOM TO PROGRESSION vs. Freedom of Religion
05.29.14 at 5:21 pm
If you want to understand the logic of an inquisition... - Overlawyered
05.30.14 at 10:30 am
Stephen Carter on the Laycock affair - Overlawyered
06.07.14 at 8:00 pm

{ 16 comments }

1 Boblipton 05.26.14 at 3:17 pm

Are they going to sue the government because their courts are used by people who “want to institute discrimination into law”? How about suing Apple on the same grounds? I’m sure there are people out there who wish to oppose same-sex marriage and whoo use Ipods.

Bob

2 Richard 05.26.14 at 3:42 pm

Fundamental to the concept of public records laws is that they cannot be misused. Rather, anyone has the right to see the records for any reason or no reason–no justification or rationale required. If the particular records should not be covered under the public records laws, that’s fine. But I cringe whenever anyone starts talking limiting access based on motive or planned use.

3 William Nuesslein 05.26.14 at 5:32 pm

Access to emails has done more harm than good in our jurisprudence. Judges should be encouraged to drastically curb the scope of email related discovery. States have rules to protect the confidentiality of telephone conversations. emails Are more like telephone conversations than formal contracts.

4 gitarcarer 05.27.14 at 10:59 am

My little town is going through an email / FOIA / Sunshine Law war.

At issue are emails sent by city council members who serve as uncompensated volunteers.

The strange part is that if the emails are sent using the city supplied email address, a person requesting the information can be charged a “reasonable fee” for the work and or copying. (Florida law allows this and unlike the Federal FOIA law, does not allow an exception for new agencies or groups that disseminate the information to the public. Everyone gets charged.)

However, if the emails were sent using a personnel account (such as a AOL account) on a personnel computing device, the Attorney General has ruled that because the council person is not being paid as a council person, they cannot charge for the information at all.

In order to get information generated by city employees paid by taxpayers who use taxpayer computers, desks, chairs, electricity, etc, a citizen must pay. If you volunteer and serve in government, you must pay your own freight.

Consequently, the requests for emails on personnel accounts is now being used as a weapon to harass political foes on the City Council as it costs them time (and therefore money) to compile the emails.

5 Patterson 05.27.14 at 1:42 pm

It is the making of the request itself, in view of the particularly worded parameters, that is intended to smear and intimidate. Asking publicly for all of a professors e-mails sent to “various right-wing and religious liberty groups” is the modern equivalent of calling him into a camera-filled room and asking “are you now or have you ever been a member of the Communist party?” No one really cares what the answer is.

6 MattS 05.27.14 at 2:23 pm

@Patterson

Another variation is “When did you stop beating your wife?”

7 question 05.27.14 at 4:46 pm

Would attorney-client communication privilege not apply here?

8 Richard 05.27.14 at 6:38 pm

Question: Attorney-client privilege only applies to confidential communications between attorneys and their clients. It would not apply to communications between him and individuals or organizations he was not representing.

9 Paul137 05.27.14 at 9:16 pm

“The Forces of Unanimity” is a very good coinage!

10 following up 05.28.14 at 1:57 pm

Re attorney-client communication: has Laycock never represented these groups before appellate courts, at least being on the brief?

11 Scott Rose 05.30.14 at 9:40 am

That Laycock and/or the university would refuse to show the requestors the material they are requesting suggests that Laycock has something to hide, and that what he is hiding shows that he has been behaving unethically.

12 Walter Olson 05.30.14 at 10:08 am

If you want to understand the logic of an inquisition, everyone, study Scott Rose’s comment just above.

13 Raybury 05.30.14 at 5:04 pm

@Scott Rose: I assume you take the same position with regard to Michael Mann’s UVA emails?

14 Melvin H. 05.31.14 at 1:52 am

Mr. Olson, I wonder–does the recipient of an FOIA request (a person, not necessarily a government department of a public college) have a chance to find out who is asking for those records, including who is backing those person(s) asking? And, what if some of those records being FOIA’d, such as personal emails from years in the past, no longer exist–what happens then?

15 Richard 06.01.14 at 7:14 pm

Generally the right to access public records does not require you to disclose your identity or purpose. The basic concept is that those records are open to inspection by members of the public at large. If the records do not exist, that information is provided to the requestor. Requests cannot require the public agency to create records, only to permit the inspection of records that exist.

16 OBQuiet 06.01.14 at 7:38 pm

Scott Rose,

IN the same vein, would you be willing to make public all of your emails, notes and records of communication with any groups or individuals associated with any political or social advocacy?

If you have nothing to hide, we don’t need any law to convince you to cooperate, do we? Can we assume that if we don’t receive this in a timely manner, you are part of some conspiracy?

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