Just the End of the Beginning

Backing down completely from its earlier refusal to let three professors serve as expert witnesses in a voting rights case against the state, the University of Florida said Friday the professors may participate, even if they’re paid. In a partial concession to the professors and the university’s growing list of critics, the university had already said the professors could testify if they did so pro bono.

In announcing the full reversal, Florida president Kent Fuchs also said he’d appointed a task force and charged it with recommending how the university should respond “when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party.” Fuchs set a preliminary recommendation deadline of Nov. 29. (Fuchs had already announced he was forming a task force to review the university’s general conflict-of-interest policy, which was last updated a year ago.)

The three professors of political science who’d asked to be involved in the voting rights case -- Sharon Austin, Michael McDonald and Daniel A. Smith -- responded to Fuchs with their own announcement: they’re suing him, Provost Joe Glover and the university’s Board of Trustees, in federal court for violating the First Amendment.

While the university changed course in this particular case, “apparently as a matter of discretion,” the lawsuit says, the “unconstitutional policy” on conflict of interest that blocked them from testifying in the first place remains in effect. To this point, the lawsuit names multiple other university professors who have recently revealed that the university denied their own requests to offer expert opinions in legal challenges to other state laws, including one involving Florida’s ban on mask mandates in schools.

UF had no immediate comment on the lawsuit.

The university’s faculty union, the United Faculty of Florida, welcomed both the university’s reversal and the lawsuit. Prior to news of both Friday, the union held a news conference to show its support for Austin, McDonald and Smith, for whom it said it had been advocating internally since mid-October, when it learned of the blocked requests.

The union on Friday also urged donors to withhold gifts until the matter was resolved, and it issued a series of demands of the university -- No. 1 being that it allow all affected professors to offer paid testimony regarding voting rights or any other topic related to their expertise.

Paul Ortiz, professor of history and president of the UF chapter of the statewide faculty union, which is affiliated with the National Education Association and the American Federation of Teachers, said while he applauded Fuchs’s move to let the professors testify, he and his colleagues are still “looking for a clear and unambiguous commitment to academic freedom going forward.” Incidentally, No. 2 on the union’s list of demands was that the university must “affirm that it will not interfere with the right of any employee to exercise their conscience, academic freedom, free speech rights and expertise in expert witness context, regardless of whether they receive payment for their expertise.”

Ortiz said the union also wants a rigorous external review of UF’s practices regarding requests for approval of outside scholarly activities.

Conflicted

UF adopted the conflict-of-interest policy in question in 2020, amid national concerns about academic espionage and a new state requirement that research university employees disclose their outside activities or financial interests, to make sure that they don’t compromise the university’s “integrity.” Under UF’s updated policy, professors must request approval for all outside activities, paid or unpaid, related to their expertise.

Prior to this policy change, professors were only required to report their outside activities once annually. According to the lawsuit, all three political science professors had previously engaged in similar expert work without incident.

UF’s new policy defines conflict of interest as “occurring when a university employee’s financial, professional, commercial or personal interests or activities outside of the university affects, or appears to affect, their professional judgement or obligations to the university.” It also says that decisions about conflict of interest will be adjudicated by the university’s assistant vice president for conflicts of interest and, when necessary, other UF officials.

The policy does not say anything about conflicts of interest with respect to the state of Florida. But that’s what UF cited when it denied Austin’s, McDonald’s and Smith’s requests to serve as expert witnesses in a lawsuit against SB 90, a new state law backed by Republican governor Ron DeSantis, which restricts mail-in and drop-box voting, third-party registration efforts, and bans non-poll workers such as church volunteers from offering food or drink to voters waiting in line.

Austin, McDonald and Smith all study elections, and their testimony about their research would presumably support the lawsuit’s arguments that SB 90 would disparately impact voters of color, the elderly, students and those with disabilities. That’s apparently why UF told them in its denials of their requests to participate that (in Smith’s case), “Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the university,” that (in McDonald’s case) “UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests,” and (in Austin’s case), “As UF is a state actor, litigation against the state is adverse to UF’s interests.”

According to the lawsuit, the professors’ lawyer sent a letter to the university on Oct. 29, asking it to stop violating their constitutional rights. The next day, the university responded that the university’s “interests as state of Florida institution” were involved, according to the lawsuit.

That letter also suggested there was an issue with the professors being paid witnesses, the lawsuit says. When the professors’ lawyer asked for clarification, the university wrote back Nov. 1 that the professors were still “involved [in] activities that are adverse to the State of Florida,” but that they could move forward with the voting rights case on a pro bono basis.

These “shifting” rationales and other emerging facts about the case demonstrate that it was never really about the money, the lawsuit alleges. “The University of Florida sought to prevent Plaintiffs from testifying for one reason: Plaintiffs sought approval to testify in court against the voting restrictions embodied in SB 9.0. instead of supporting that law.”

Seeking Permanent Relief

Yet the job of a university professor or researcher is not to be “mouthpieces for a particular administration’s -- or any administration’s -- point of view,” the lawsuit says. “It is to develop and share their knowledge with the people of Florida while upholding the university’s values. Nor did plaintiffs surrender their constitutional rights when they became public employees.”

The professors allege that the university violated their rights under the First Amendment by restricting them from testifying as expert witnesses, including for “fair compensation,” and imposing “prior restraint” on their speech in requiring them to seek approval at all.

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

To protect themselves and their colleagues in the future, Austin, McDonald and Smith are seeking preliminary and permanent injunctive relief not just against the current conflict-of-interest policy but against any university policy or practice that gives the institution “discretion to limit [their] ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the ‘interests’ of the state of Florida or any of its entities or instrumentalities.”

Austin, McDonald and Smith are also seeking declaratory relief declaring unlawful any such policy.

In a joint statement, the professor’s lawyers, David A. O’Neil and Paul Donnelly, said the lawsuit “fires back at the brazen violation” of the First Amendment and academic freedom. “Despite reversing the immediate decision prohibiting the professors from testifying, the university has made no commitment to abandon its policy preventing academics from serving as expert witnesses when the university thinks that their speech may be adverse to the state and whatever political agenda politicians want to promote. It is time for this matter to be rightfully adjudicated, not by press release, but in a court of law.”

A Bigger Picture

While Austin, McDonald and Smith’s lawsuit is relatively narrow in its focus, Ortiz and others said Friday that the application of the university’s conflict-of-interest policy is part of larger pattern of apparent political interference in academic matters, from the university’s handling of the COVID-19 pandemic to a new state law requiring that public universities survey students and employees about viewpoint diversity and allowing students to record class sessions without their instructors’ permission, for personal use and to facilitate complaints against instructors.

The Tampa Bay Times also reported last week that several public university campuses in Florida, including UF, are circulating a draft policy that would make it easier to fire tenured professors via posttenure review, similar to a controversial policy that the University of Georgia’s Board of Regents passed last month. In response to Georgia, the American Association of University Professors has launched an investigation and warned of potential censure.

Meera Sitharam, professor of computer science at UF and union vice president, said Friday that “many motivations have been suggested for the UF administration’s unfortunate decisions: political brinkmanship, pandering to ensure state largess and UF’s rise in U.S. News rankings, fear of actual or imagined retaliation, or the convenient use of rumored external threats to internally silence voices and consolidate power.” All these possible motivations, she continued, “have one thing in common: they are ethically corrupt, inconsistent with a public higher education institution’s mission as a place of free inquiry and will seriously compromise UF’s reputation.”