GAINESVILLE, FL – SEPTEMBER 2: University of Florida Gators fans watch the action during the game against the Southern Miss Golden Eagles at Ben Hill Griffin Stadium on September 2, 2006 in Gainesville, Florida. The Gators defeated the Eagles 34-7.
A federal court on Monday declined to dismiss a lawsuit filed by University of Florida professors who are fighting against a recent and controversial policy that kept them and their colleagues from testifying in election-related litigation.
Political science professors Sharon Austin, Michael McDonald, and Daniel Smith sued the university’s board of trustees, President W. Kent Fuchs, and Provost Joseph Glover, saying officials tried to bar the trio from testifying in a lawsuit alleging the Sunshine State’s new raft of voting laws–passed after the 2020 election–discriminates against minorities and the elderly in order to limit access to the ballot box.
The policy in question requires professors to seek approval for opining on such issues under the term “outside activity.” Each of the three professors submitted requests through this process, and each of the three was, at first, denied.
“The University refused to approve each of [the professors’] applications, offering a series of shifting and inconsistent explanations that laid bare the University’s real goal: to prevent [the professors] from testifying in support of a challenge to the State’s [voting] policies,” their 18-page original petition explains.
“Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida,” Professor Smith was told in his denial message.
Professor McDonald was given the following denial: “UF [w]ill deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests.”
“As UF is a state actor, litigation against the [S]tate is adverse to UF’s interests,” the university told Austin.
After some considerable bad press, however, the university relented and allowed the three professors to testify in the one, specific lawsuit provided they were not being paid to do so.
Fuchs also attempted some damage control of his own and sent a message to the university community saying that he had asked “UF’s Conflicts of Interest Office to reverse the decisions on recent requests by UF employees to serve as expert witnesses in litigation in which the state of Florida is a party and to approve the requests regardless of personal compensation, assuming the activity is on their own time without using university resources.”
The university defendants argued that their conditional exceptions to the anti-speech policy were enough to sustain a motion to dismiss.
The institution asserted that the plaintiff professors lacked standing because they had been given permission to weigh in on that particular lawsuit. Additionally, the university claimed, the plaintiffs’ claims were moot because Fuchs accepted a task force’s recommendations to slightly alter the policy in favor of a “strong presumption” that professors will be allowed to testify as expert witnesses in the future.
On Monday, Barack Obama-appointed U.S. District Judge Mark Walker rubbished the university’s efforts at mitigating the anti-speech policy as too little and summarily unconvincing.
“There is no doubt [the professors’] intended course of conduct, participating in litigation as expert witnesses, is affected with a constitutional interest,” the opinion notes. “And [the professors] have demonstrated that, for fear of repercussion or retaliation, they are self-censoring from such participation. An ‘alleged danger of this [policy] is, in large measure one of self-censorship; a harm that can be realized without an actual prosecution.'”
And, despite the minor revisions to the rule, Walker went on to note that the policy presents a “credible threat of enforcement” because it was recently “revised” and because the defendants are still defending it in court–a standard set out by the 11th Circuit Court of Appeals.
The decision also cites comments made by University of Florida Board of Trustees Chairman Morteza “Mori” Hosseini, which strongly suggested the university had no plans to change the policy.
From the ruling, at length:
But even if that were not enough, public statements by the Chairman of the University’s Board of Governors leave this Court with little doubt that the University of Florida intends to enforce its conflict-of-interest policy in the manner Plaintiffs fear. Speaking only ten days after Defendant Fuchs’s “adoption” of the proposed changes to the conflict- of-interest policy supposedly mooted this case, Chairman Hosseini struck a different tone. According to Chairman Hosseini, faculty members had “taken advantage of their positions” by using those positions “to improperly advocate personal political viewpoints to the exclusion of others.” “This. Will. Not. Stand.” he remarked, “[i]t must stop, and it WILL stop.” Chairman Hosseini also made explicit what was implicit in the University’s earlier denials. “Think of everything we’ve been able to accomplish during the past five years” he said. “These things were all made possible through the support of our state leaders.” And those leaders, he explained, “are fed up with the waste of [state] dollars by the few who are misusing their positions.” So, he closed, “[i]t is time to stand up for what is right and to put a stop to what is wrong.” In short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities.
Walker also rejected out of hand the strictures of the new policy as somehow being much different than the old policy.
“Defendants have already repeated their allegedly wrongful conduct by implementing the new policy,” the court noted. “That policy, like the old policy, sets no time limit within which the University must decide a request to testify. Allowing it, Plaintiffs say, to run out the clock on any request. More to the point, the new policy does not repudiate the premise that the University may reject a request to testify not because testifying would interfere with the professor’s duties, but because the testimony the professor intends to deliver would so infuriate Florida’s political leaders that it would harm the University’s bottom line . And it is that premise that Plaintiffs contend violates the Constitution.”
The plaintiffs are seeking an injunction barring the university from applying the revised policy. Oral arguments are currently slated for this coming Friday, Jan. 7, 2022.
Read the judge’s full order denying the motion to dismiss below:
[image via Doug Benc/Getty Images]
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