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Tuesday, December 14, 2021

University of Florida faculty lawsuit over vote-by-mail testimony sets federal court date

Posted By on Tue, Dec 14, 2021 at 10:01 AM

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A federal judge will hear arguments next month in a lawsuit filed by University of Florida professors challenging a policy that gives the school discretion in blocking faculty members from testifying against the state in legal cases.

Chief U.S. District Judge Mark Walker on Monday scheduled a Jan. 7 hearing in the lawsuit alleging the school’s policy violates First Amendment rights.



For weeks, the state’s flagship university has been under scrutiny after media reports about its handling of professors’ expert testimony and a conflicts-of-interest policy initiated last year.

The controversy over the policy led UF President Kent Fuchs to sign off on recommendations late last month from a hastily assembled task force he created to explore the issue.

Political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit after the university denied their requests to serve as plaintiffs’ witnesses in a challenge to a new state elections law (SB 90) that includes making it harder for Floridians to vote by mail. They said school administrators told them that going against the executive branch of the government was “adverse” to the university’s interests.

Amid the controversy, the university walked back the decision on the three professors’ testimony in the elections case, with Fuchs saying they would be allowed to be paid to testify if they did so on their own time and did not use university resources. Fuchs also quickly assembled the task force to review the conflict-of-interest issue.

Lawyers for Fuchs, the university’s Board of Trustees and Provost Joe Glover have asked Walker to dismiss the lawsuit, arguing that the case is “moot” because the university’s policy has changed.

“The public controversy involving the three UF professors who were denied permission to act as paid expert witnesses in litigation against the state of Florida is now over. Indeed, that controversy was over even before this case began. UF approved the professors’ outside activity requests before they filed the lawsuit. They simply refuse to take yes for an answer,” the university’s lawyers wrote in a Dec. 1 motion to dismiss.

According to court records, the university told the political science professors that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict” for the university. State universities rely on the Legislature for funding, and the governor has the ability to veto line items in the budget.

Fuchs’ reversal on the professors’ testimony came the same day the faculty members filed the initial version of the lawsuit accusing him and other university leaders of “stifling” their First Amendment rights.

“Plaintiffs’ job as public university professors and researchers is not to be mouthpieces for the government’s point of view. It is to develop and share their academic knowledge and expertise with the people of Florida while upholding the university’s values and fulfilling their oath — taken by all public employees in the state — to ‘support the Constitution of the United States and of the state of Florida,’” attorneys for the professors wrote in the lawsuit.


The university’s attempts to stop professors from testifying came after initiating a “conflicts of commitment and conflicts of interest policy” in July 2020. The policy requires UF faculty members to submit online requests for permission to participate in an “outside activity,” either paid or unpaid, that could “create an actual or apparent conflict of commitment or conflict of interest.”

An amended complaint filed last month added UF law professors Teresa Reid and Kenneth Nunn and Jeffrey Goldhagen, a professor in the university’s College of Medicine, as plaintiffs.

Reid and Nunn wanted to sign onto a friend-of-the-court brief in a lawsuit challenging a 2019 state law requiring felons to pay court-ordered fees, fines and restitution to be able to vote. The law was aimed at implementing a constitutional amendment that restored voting rights to felons who have completed their sentences.

After the university’s new policy was launched last year, law school Dean Laura Rosenbury told professors they needed permission to sign friend-of-the-court briefs “only if the brief was filed in a case opposing the state of Florida,” according to court documents.

The task force report approved late last month by Fuchs called, in part, for a "strong presumption" that faculty members will be able to serve as expert witnesses in lawsuits involving the state, “regardless of the viewpoint of the faculty or staff member’s testimony and regardless of whether the faculty or staff member is compensated for such testimony. This presumption is particularly important in cases that challenge the constitutionality, legality or application of a Florida law.”

The new policy also sets up an appeal process for faculty members whose requests are denied.

Fuchs last week agreed to a handful of recommendations proposed by the university’s Faculty Senate, such as allowing faculty members to speak to the press “as private citizens” regarding areas of their expertise and affirming that faculty have “the right to research and timely publication without interference by outside influence.”


The defendants’ motion to dismiss will be argued Jan. 7 along with the plaintiffs’ motion for a preliminary injunction. The motion to dismiss maintained that the plaintiffs lack “standing” to pursue the lawsuit.

Fuchs’ acceptance of the task force’s recommendations made “this moot case even mooter,” the university’s lawyers argued.

“Plaintiffs have not submitted, and UF has not denied, any requests for approval of outside activities under the revised policy,” they wrote.




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