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University of Florida leaders are appealing a judge’s ruling that blocked school administrators from enforcing a controversial conflict-of-interest policy that gave them discretion to prohibit professors from serving as expert witnesses in litigation.
Lawyers for UF President Kent Fuchs, Provost Joseph Glover and the university’s board of trustees filed a notice Tuesday that is a first step in appealing a January decision by Chief U.S. District Judge Mark Walker, who called the policy “pernicious” and a violation of First Amendment rights. The notice of appeal to the Atlanta-based 11th U.S. Circuit Court of Appeals did not include details of the university’s arguments, as is common in such filings.
Political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit after they were told they could not participate as experts in a legal challenge to a 2021 state elections law (SB 90). Plaintiffs in the elections case allege that the law, which imposed new restrictions on voting by mail and voter-registration groups, will have a disparately negative impact on Black and Hispanic voters and voters with disabilities.
In denying the professors’ requests to serve as plaintiffs’ experts in the elections lawsuit, university officials said that going against the executive branch of the state government was “adverse” to the school’s interests. The professors, who were joined by three other faculty members in the lawsuit, argued that the conflict-of-interest policy unconstitutionally discriminates based on viewpoint and content and has a “chilling” effect.
The dispute about the professors being blocked from testifying drew national attention. Fuchs ultimately walked back the decision, saying the professors would be allowed to be paid as plaintiffs’ experts if they did so on their own time and did not use school resources.
Fuchs also quickly assembled a task force to review the issue and signed off on recommended changes to the policy. The revised policy states there is a “strong presumption” that the university will approve faculty or staff requests to testify as expert witnesses.
But in a scathing 74-page ruling, Walker — who received his undergraduate and law degrees from UF — belittled the revamped policy, which allows administrators to deny requests “when clear and convincing evidence establishes that such testimony would conflict with an important and particularized interest” of the university.
“That the policy still reserves UF the right to prohibit testimony contrary to its interests provides more evidence that the ‘revised’ policy is nothing new. The policy does not explain what ‘an important and particularized interest of the university’ might be. Nor has UF disavowed its ‘old’ policy, or pronounced that it would not prohibit faculty from participating in litigation against the state moving forward. What remains is a dolled-up version of the same old conflict-of-interest policy used to deny plaintiffs’ previous requests to serve as expert witnesses,” the judge wrote on Jan. 21.
Walker’s ruling granted the plaintiffs’ request for a preliminary injunction and ordered university officials to “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.”
The professors’ lawyers Wednesday criticized UF’s decision to appeal the ruling.
“We are disappointed by the University of Florida’s decision to fight against basic First Amendment protections instead of honoring its faculty’s right to speak,” attorney David A. O’Neil said in a prepared statement. “The district court’s decision is right, and we have every confidence that the court of appeals will uphold it. In the meantime, the university continues to do incalculable damage to core democratic principles and to its own reputation. We intend to prevail on behalf of our clients so that public university professors do not suffer from impermissible censorship.”
UF’s lawyers in December asked Walker to dismiss the lawsuit, arguing that it was “moot” because the policy had been changed and the university ultimately authorized the professors’ requests to serve as expert witnesses.
Christopher Bartolomucci, who represents the UF leaders, told Walker during a hearing last month that the professors began to work on the elections case even before they sought permission from administrators to do so.
“This court should not enjoin a process that the plaintiffs don’t even abide by. There’s no chilling effect. The policy didn’t chill them. … These plaintiffs went to work even before they made a request,” Bartolomucci argued.
The lawyer also argued the plaintiffs lack “standing” to sue the university because they aren’t being harmed by the policy.
“These plaintiffs aren’t injured by the process. They don’t even honor the process,” Bartolomucci said.
But in his ruling, Walker found that the policy gives university officials too much discretion. Also, he pointed to comments made by UF Board of Trustees Chairman Morteza “Mori” Hosseini, who lashed out at unidentified professors during a board meeting in November.
Hosseini accused faculty members of having “taken advantage of their positions” by using their university jobs “to improperly advocate personal political viewpoints to the exclusion of others. … Our legislators are not going to put up with the wasting of state money and resources, and neither is this board.”
Hosseini’s remarks “made plain that UF was beholden to the Florida Legislature,” Walker wrote.
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