A (Temporary) Win for Academic Freedom

Judge mostly sides with University of Florida faculty members in a free speech case that cast doubt on UF’s political independence from Tallahassee.

January 24, 2022
 
University of Florida
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A federal judge granted, in part, a preliminary injunction against the University of Florida Friday in a high-profile academic freedom case. All the plaintiffs are professors. Most accused the university of using its conflict-of-interest policy to block them from serving as expert witnesses in legal challenges to state laws on voting rights and a ban on school mask mandates.

The decision means that UF cannot invoke its conflict-of-interest policy regarding any faculty or staff requests to engage as expert witnesses or provide legal consulting in litigation involving the state, until otherwise ordered.

‘It Could Never Happen Here’

Mark E. Walker, chief judge of the U.S. District Court for the Northern District of Florida and a two-time UF alum, wrote the scathing 74-page order that likened UF’s behavior to recent reported acts of censorship at the University of Hong Kong.

“Some might say, ‘that’s China, it could never happen here,’” Walker wrote of this comparison. “Yet, when several UF professors were called to speak truthfully on topics related to their expertise in cases challenging the state, their requests to speak truthfully and critically in courts of law were denied in an all-too-familiar display of anticipatory obedience. It was not until the wider world caught on to what was happening that the muzzle was lifted.”

Walker added in a footnote, “If those in UF’s administration find this comparison upsetting, the solution is simple. Stop acting like your contemporaries in Hong Kong.”

The professors in the case also sought an injunction against UF’s policy on when and how law professors may sign amicus briefs. Walker did not grant this request because he said the point had been litigated as something of an “afterthought,” and because it remains unclear just what UF’s amicus brief policy is and whether UF has consistently used it to limit faculty speech.

Friday’s decision does not apply to UF’s related but separate conflict-of-commitments policy, which remains intact.

Whose Conflict of Interest?

Three political scientists—Sharon Austin, Michael McDonald and Daniel A. Smith—sued UF in November after initially being denied approval to serve as expert witnesses in a lawsuit against what’s known in Florida as SB 90. The law, backed by Republican governor Ron DeSantis, restricts mail-in and drop-box voting and third-party registration efforts and bans non–poll workers from offering food or drink to voters waiting in line. Austin, McDonald and Smith all study elections. Based on their research, their testimony likely would have supported the plaintiffs’ argument in that case, not the state’s—and that was presumably UF’s problem.

UF’s conflict-of-interest policy, last updated in 2020, amid national concerns about academic espionage, was designed to protect the university’s “integrity.” Yet all three professors were told that their participation in the voting-rights lawsuit in question was against the university’s own interests, as a state entity.

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The university faced intense criticism after news of the denials broke, with many accusing the university of censoring its professors in order to avoid offending powerful people in Tallahassee. Soon UF said that the professors could participate in the lawsuit after all, if they did so pro bono, even though it’s commonplace for professors serving as expert witnesses to be compensated for their time.

UF changed course again, eventually saying the professors could participate in the lawsuit and be compensated. But Austin, McDonald and Smith sued anyway, saying they wanted to prevent the university from similarly violating other professors’ First Amendment rights via the conflict-of-interest policy in the future.

“Discrimination and prior restraint on the basis of viewpoint or content are presumptively unconstitutional,” the professors’ lawsuit says. UF’s restrictions “must be struck down unless they are narrowly tailored to serve a compelling interest of the state.”

Three other UF professors joined the lawsuit along the way. One pediatrician, Dr. Jeffrey Goldhagen, said he’d been denied permission to serve as an expert witness in a legal challenge to DeSantis’s ban on school mask mandates and otherwise to participate in two additional lawsuits. Unlike the political scientists, Goldhagen said he was never going to be paid for his expert testimony, underscoring the university’s shifting basis for denials.

Two more professors, Teresa Reid and Kenneth Nunn, both lawyers, joined the lawsuit over having been told not to identify themselves as UF professors when signing an amicus brief supporting a legal challenge to a Florida law limiting the restoration of voting rights for felons. Two other professors who were not party to the academic freedom lawsuit were told the same, according to court documents; of 93 scholars who signed the amicus brief in question, only the four from UF did not include their institutional affiliation.

While Walker sided against the professors’ related request for a temporary injunction regarding the amicus brief policy, the order as a whole is extremely favorable to the professors, and to academic freedom. This bodes well for the future of the professors’ case, beyond this temporary order. A bench trial is set for November.

A ‘Ringing Endorsement’ of Faculty Free Speech

David A. O’Neil, a lawyer for the professors, said in a statement that Walker’s decision is a “ringing endorsement of the critical importance of faculty free speech and academic freedom to the health of our democracy. The university may no longer prohibit faculty members from sharing their views with courts and the public just because the ruling political party doesn’t want to hear their truth.”

Beyond UF, O’Neil said, “The decision sends a clear message to public universities across the country—and to politicians who would try to interfere with them—that they too must honor the constitutional principles that make the college campus a vital engine of a free society.”

Hessy Fernandez, university spokesperson, said UF is reviewing the order and will determine its next steps.

Whatever happens, the case has already brought significant negative attention to UF, including to President Kent Fuchs, and triggered an inquiry by the university’s accreditor, the Southern Association of Colleges and Schools Commission on Colleges. Fuchs announced earlier this month that he is stepping down as president as soon as a new one is appointed, likely early next year. UF intimated in its announcement that the lawsuit wasn’t the reason for this decision, however, saying that Fuchs quietly informed the university’s Board of Trustees of his plans in August.

Amid the scandal, Fuchs charged a task force with revising the conflict-of-interest policy and approved the committee’s recommendation that the university commit to the “strong presumption” of approval of outside activities such as being an expert witness.

Lawyers for the university cited this policy update as one reason why Walker should dismiss the lawsuit in hearings in the case this month. But Walker refused to dismiss, saying at one point that the case was about how the policy will be applied in the future, not about the past. In so doing, he cited recent public comments by Mori Hosseini, governing board chair, to fellow trustees about professors “taking second jobs,” “using their positions of authority to improperly advocate personal political viewpoints” and “misusing their positions.” State legislators, Hosseini said, “are not going to put up with the wasting of state money and resources, and neither is this board.”

These comments were made in December, after the professors sued UF. Hosseini’s remarks therefore “made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee,” Walker wrote.

Beyond Hosseini’s comments, a December UF Faculty Senate report detailed additional allegations of censorship on the part of administrators. UF “employees were told verbally not to criticize the Governor of Florida or UF policies related to Covid-19 in media interactions,” according to the report, and not to use the words “critical” and “race” in the same sentence in university documents, for example.

Walker wrote that it was important to consider how UF had treated the plaintiffs, some of its supposedly respected senior faculty members, in court proceedings, accusing them of “feeding UF to a gator,” being liars and more.

“Consider,” too, “the costs UF is willing to bear to maintain its power to discriminate based on viewpoint,” Walker continued. “It is willing to suffer threats to its accreditation, congressional inquiries, unrelenting bad press, an all-but-certain hit to its rankings, and the substantial monetary cost of hiring an experienced D.C. firm to defend its policy. The only thing UF will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.”

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