Federal judge sides with UF professors in free speech dispute

·6 min read

A federal judge has sided with three University of Florida political science professors, giving them a preliminary win in their fight to provide expert witness testimony in a lawsuit challenging a new state election law that starts in less than two weeks.

Chief U.S. District Judge Mark Walker granted them a preliminary injunction on Friday in a 74-page order in which he cites the removal of a tower at the University of Hong Kong known as the "Pillar of Shame" commemorating the 1989 Tiananmen Square Massacre.

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"In many ways, the Pillar’s demise was emblematic of the demise of academic freedom in Hong Kong," Walker said, tying it to the impact of UF's conflict of interest policy on the academic freedom of its own faculty.

"UF has bowed to perceived pressure from Florida’s political leaders."
"UF has bowed to perceived pressure from Florida’s political leaders."

People say that's China, and it couldn't happen here, Walker said, but the UF professors contend in their request for an injunction that it has already happened, that "UF has bowed to perceived pressure from Florida’s political leaders and has sanctioned the unconstitutional suppression of ideas out of favor with Florida’s ruling party."

Read Walker's entire 74-page order here.

The judge, who sits in the Northern District of Florida in Tallahassee, issued the order against the university's controversial conflict-of-interest policy regarding giving expert testimony in legal matters.

"Defendants must take no steps to enforce its conflict-of-interests policy with respect to faculty and staff requests to engage as expert witnesses or provide legal consulting in litigation involving the State of Florida until otherwise ordered," Walker ordered.

University of Florida President Kent Fuchs speaks during UF Day at the Capitol Tuesday, Feb. 18, 2020.
University of Florida President Kent Fuchs speaks during UF Day at the Capitol Tuesday, Feb. 18, 2020.

The injunction applies to the University of Florida Board of Trustees, President Kent Fuchs, Provost Joe Glover, Law Dean Laura Rosenbury, and any of their officers, agents, attorneys and others who receive notice of the injunction.

But he denied a parallel request regarding policy about filing friend-of-the-court briefs and let stand the university's conflict-of-commitment policy regarding outside work.

Walker set a bench trial date for Nov. 7. A university spokesperson said officials are reviewing the order to determine their next steps.

David O'Neil, lawyer for the faculty, said “today’s decision is a ringing endorsement of the critical importance of faculty free speech and academic freedom to the health of our democracy."

How the case began

Sharon Austin, Daniel Smith and Michael McDonald challenged the constitutionality of the revised policy after they were denied permission to provide expert testimony in a case challenging a new state elections law that places restrictions on voting by mail, among other things. Smith is chair of the department.

Administrators denied their requests, saying their testimony would be adverse to the university’s interests because they went against the executive branch of state government.

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The professors were shocked to be turned down, because the university had not only allowed such activities for decades, but had encouraged and even boasted about faculty taking part in legal cases of state and national import.

A medical professor who was likewise denied permission to testify in a case against the state challenging the rights of school districts to require students to wear masks joined the lawsuit.

The university changed its policy in 2020, the professors said, requiring permission in advance, amounting to censorship after the Legislature passed a new law requiring the state universities to determine that faculty are not engaging in outside activities or financial interests that could affect the integrity of the universities.

"Declaring such activities a conflict of interest, UF has repeatedly blocked professors from providing expert testimony against the State in cases implicating hot-button political issues," Walker noted.

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The governor's office has denied any involvement in turning down the faculty's requests to provide expert testimony.

After news broke of the three political science professors being denied permission to provide expert testimony in the elections case, the university reversed its decision and allowed them to testify, and revised its conflict policy slightly.

"It was not until the wider world caught on to what was happening that the muzzle was lifted," he said.

Walker also noted that the trial in the challenge of the state's election law is set to begin in less than two weeks.

Tigert Hall on the University of Florida campus
Tigert Hall on the University of Florida campus

Revised policy also unconstitutional

The faculty said the revised policy is also unconstitutional because it does not disavow UF's "interest” in "aligning faculty speech with the ruling party’s political preferences," Walker said.

Two law professors joined the lawsuit claiming the policy outlining when they may file friend-of-the-court briefs was also unconstitutional, Walker noted.

"Here, fortunately, democracy does not depend upon a lone child to challenge the 'emperors' of our time. Instead, this nation’s 'priests of democracy,' — its learned professors — guide us in our pursuit of truth and informed citizenship," Walker wrote.

"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."

Walker also noted that UF's national rise to prominence was tied to the Legislature providing funds to hire faculty and create new endowed chairs. From 2014 forward, the university shot up through the ranks to become the fifth top public university in the nation last year.

"UF officials know that UF’s relationship with Florida’s government has been key to that success," Walker said, noting comments made by UF Board of Trustees Chairman Mori Hosseini owing their success the support of the Legislature.

Walker also noted that Fuchs told the faculty senate in September that criticism of the state's COVID-19 response would “fracture the relationship between the university and the state government ... ultimately leading to a diminished or inability to impact future policies or decisions affecting the university.”

A report on academic freedom issued by the UF Faculty Senate days after the professors filed their lawsuit said there was “palpable reticence and even fear on the part of faculty to speak up” on hot button issues.

The report also said faculty were concerned about retaliation and "a sense that anyone who objected to the state of affairs might lose his or her job or be punished in some way," Walker noted.

Walker's ruling is a win for academic freedom, O'Neil said, and a message that faculty need not fear sharing their views because they aren't aligned with the ruling party.

Said O'Neil: "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."

Jeffrey Schweers is a capital bureau reporter for USA TODAY NETWORK-Florida. Contact Schweers at jschweers@gannett.com and follow him on Twitter @jeffschweers.

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This article originally appeared on Tallahassee Democrat: Judge blasts University of Florida conflict of interest policy in injunction

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