Judge: University of Florida can’t enforce conflict-of-interest policy to ban faculty testimony

In a scathing opinion this morning, a federal judge issued a preliminary injunction against the University of Florida’s controversial conflict-of-interest policy, which UF administrators had invoked to prevent three political science professors — Sharon Austin, Michael McDonald, and Daniel Smith — from testifying in a voting rights lawsuit against the state of Florida. As that controversy unfolded last fall, other faculty members came forward and shared that they too had been denied the right to testify, and a total of six have joined together in a lawsuit challenging the legality of UF’s conflict-of-interest policy.

Today’s injunction, issued by Mark E. Walker, Chief Judge of the U.S. District Court for the Northern District of Florida, requires the university “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.” 

At its core, the court’s decision holds that the First Amendment, in protecting the right of public employees to speak as private citizens on matters of public concern, extends to the right of faculty members to give expert testimony on the subjects of their expertise:

[The professors] have a First Amendment right to testify about topics related to their expertise in litigation against the State of Florida, and just because such testimony relates to their expertise—which is itself related to their work as public university professors—does not mean that it falls outside the First Amendment’s reach.

FIRE said as much two months ago in a letter to UF: “Restricting faculty members from participating in a judicial proceeding as expert witnesses is a profound violation of their First Amendment rights and academic freedom."

We congratulate the professors and their counsel on today’s ruling, and will continue to monitor the case as the parties prepare for trial.

The court’s 74-page opinion begins by noting the shocking similarities between the events at issue in the case and what it calls “the demise of academic freedom” unfolding at the University of Hong Kong, where campus administrators fearful of the Chinese government take it upon themselves to routinely silence students and faculty.

Those authoritarian endeavors, the court notes, have been enthusiastically endorsed and effectuated by the administrators of Hong Kong’s universities. 

“Some might say, ‘that’s China, it could never happen here,’” Judge Walker posits. “But Plaintiffs contend it already has.”

Court describes UF’s improper submission to political pressure

Judge Walker, writing that there is “no evidence before this Court that any representative of Florida’s government has directed UF to take any of the actions it has taken in this case,” described UF’s actions as “vorauseilender Gehorsam” — a German phrase for “pre-emptive subservience” — in anticipation of “perceived pressure from Florida’s political leaders.”

The opinion also suggests there might be good reason for that perception, pointedly noting that “some Florida legislators have publicly praised” reported efforts at the university to censor teaching about critical race theory and, more to the point, that the “highest ranking UF official” — board chair Morteza “Mori” Hosseini — denounced the plaintiff faculty members and pledged that “our legislators are not going to put up with the wasting of state money and resources, and neither is this board.”

That anticipation of political pressure, the opinion asserts, meant UF officials (fearing retaliation should one of the professors’ testimony anger state officials) “sanctioned the unconstitutional suppression of ideas out of favor with Florida’s ruling party.” 

Walker’s opinion contrasts the perceived political pressure felt by UF administrators with the countervailing institutional interests in preserving faculty members’ expressive rights. Despite the great weight of those interests, they were not effective in getting the defendants to end their legal troubles by simply “affirming that they will never rely . . . on the reactions of legislators or others, other political actors, to [faculty] speech as a basis for suppressing it.” Even the university’s revised policy did not go far enough to restrain administrators from preventing faculty from testifying based on their anticipated viewpoint: 

[C]onsider the costs UF is willing to bear to maintain its power to discriminate based on viewpoint. 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.

“The question is whether faculty who wish to speak, outside their ordinary job duties, on topics related to their expertise—which relates to their public employment as university professors—are protected by the First Amendment,” Judge Walker wrote. “The answer is yes.”

UF’s legal case has been crumbling

UF revised the conflict-of-interest policy after widespread public outcry, including from FIRE, and based on the recommendations of a faculty task force. That policy, while much improved, did not sufficiently constrain the university’s discretion to determine whether to permit faculty members’ off-the-clock expert testimony. The court, across multiple rulings and hearings, was particularly exercised about Hosseini’s denouncement of the faculty members, which undermined the university’s ability to argue that the policy change meaningfully shielded faculty members from censorship.

Speaking at the December meeting of the UF board of trustees, board chair Hosseini accused faculty of “taking advantage of their positions” for “personal gain” and to “improperly advocate personal political viewpoints to the exclusion of others.” Hosseini then promised such behavior would not sit well with politicians in Tallahassee.

“Let me tell you, our legislators are not going to put up with the wasting of state money and resources, and neither is this board. And we shouldn’t,” Hosseini said. “This behavior is unacceptable. It is disrespectful not only to the taxpayers of Florida, whose hard-earned dollars pay faculty salaries, but it is also disrespectful to these faculty members’ hard-working colleagues — the ones who are doing their jobs honestly and fulfilling their missions.”

[READ MORE: After testimony dustup, University of Florida reportedly censoring ‘critical’ and ‘race’ in syllabi.]

Hosseini denied that the governor, lawmakers, and board had “influence on specific decisions” about testimony, but warned, “If you allow something to happen, that means you condone it. Enough.”

“Chairman Hosseini’s remarks made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee.”

Based on Hosseini’s troubling remarks, and coupled with the ability of the administration to modify the conflict-of-interest policy at will, the court suggested there is a real danger that the university will use the new policy to continue to censor faculty once public attention to the controversy fades.

“The threat of enforcement is credible,” Judge Walker declared in his ruling today, adding that, “Chairman Hosseini’s remarks made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee.”

In response to the court’s ruling, a lawyer for the faculty told the Tallahassee Democrat, “Today’s decision is a ringing endorsement of the critical importance of faculty free speech and academic freedom to the health of our democracy.”

FIRE agrees. We congratulate the professors and their counsel on today’s ruling, and will continue to monitor the case as the parties prepare for trial.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).