The GOP Was Wrong–So Was the Historical Association

By now, most people who follow either politics or higher education know the story of William Cronon. The University of Wisconsin professor published a lengthy post critiquing the policies of Governor Scott Walker, and a week later penned a New York Times op-ed raising similar themes. In between the dates of the two essays, the Wisconsin Republican Party filed an open records request demanding any and all e-mails from Cronon’s university account that mentioned Republicans, several public employee unions, and the GOP state senators targeted for recall. When Cronon publicized the Open Records Law request, the state GOP received reams of criticism, both nationally and within Wisconsin; it seemed as if the Republicans’ chief motive was to intimidate–or at least badly inconvenience–a state employee who had criticized them publicly.

In the end, the Wisconsin Republicans got what they deserved. They hoped that what amounted to a bad-faith act would serve them well politically, and instead their decision backfired. If anyone will be deterred from future actions based on this event, it’s likely to be the Wisconsin GOP, not Governor Walker’s critics in the academy. To paraphrase Brandeis, sunlight–in this instance, Cronon’s publicizing the GOP’s Open Records Law filing–proved the best disinfectant.

But for many of Cronon’s defenders, this outcome  isn’t enough. On Sunday, the American Historical Association (of which Cronon is incoming president), issued an official statement demanding that the GOP withdraw its filing, adding the following: “The purpose of the state’s Open Records Law is to promote informed public conversation. Historians vigorously support the freedom of information act traditions of the United States of which this law is a part. In this case, however, the law has been invoked to do the opposite: to find a pretext for discrediting a scholar who has taken a public position. This inquiry will damage, rather than promote, public conversation.”

This statement is peculiar for at least three reasons. First, the nation’s leading historical association made a historical assertion—“the purpose of the state’s Open Records Law is to promote informed public conversation”—without supporting evidence. I don’t have access to Wisconsin’s legislative debates. But it’s my sense that most FOIA laws resulted from an impetus to expose governmental corruption or wrongdoing and to increase transparency, not primarily to promote conversation. If the AHA has evidence to support its revisionist interpretation of the law’s origins, the organization didn’t share it with the public.

Second, FOIA laws work only because the requester does not have to give a reason for the request. Otherwise, government agencies could and would always find excuses to deny open documents requests, citing allegedly illegitimate reasons. Yet, ignoring generations of experience, the AHA has now gone on record as suggesting that requests that can be considered as not promoting “informed public conversation” should be withdrawn.

Third, there’s something more than a little off-putting about the nation’s leading historical organization publicly opposing a FOIA-like request, even one whose origins are in bad faith. Perhaps if the AHA wasn’t so hostile to types of history (political, diplomatic, constitutional, military) that use government documents, the organization would have thought twice before issuing its statement. But practitioners of the race/class/gender trinity—who currently dominate the AHA—generally don’t need government documents to do their jobs.

Quite beyond the AHA’s peculiar statement is a broader call to excuse academics at public institutions from state open records laws altogether. The AAUP has urged the university to resist the Open Records law request, citing academic freedom (though if Cronon were an employee of, say, Wisconsin’s Department of Transportation, there’s every reason to believe the state GOP would have behaved the same way). Paul Krugman hints at the rationale for this approach in his latest Times column: “What’s at stake here, in other words, is whether we’re going to have an open national discourse in which scholars feel free to go wherever the evidence takes them, and to contribute to public understanding. Republicans, in Wisconsin and elsewhere, are trying to shut that kind of discourse down.”

There’s something hypocritical about public university professors saying other public employees—but not academics—should be subject to state FOIAs. Even by the AHA’s strained “informed public conversation” standard, there are lots of legitimate rationales for potential open records requests of academics.

To take two matters recently in the news: in the Texas affirmative action case (Fisher), the University has justified its support for expanded racial preferences on curricular grounds. An open-records request to determine whether faculty who have aggressively promoted this line of argument are simply using it as a pretense certainly would seem legitimate. Or, in New York, the CUNY faculty union recently organized an Albany event—which culminated in arrests—to protest the state’s economic policies. An “academics’ exception” to open records laws would block any requests inquiring into whether union officials used university e-mails to conspire to break the law; or whether union activists are now using university e-mails to pressure colleagues to depart from their standard curricula and instead devote class time to advancing union talking points.

It’s no secret that the contemporary academy isn’t a friend of transparency. It would be deeply unfortunate if the Wisconsin GOP’s absurd actions regarding Prof. Cronon are used as an excuse to justify a broader shielding of academic affairs from the public eye.