Federal judge refuses to toss University of Florida professors’ First Amendment lawsuit

Dara Kam
Tue, January 4, 2022

A federal judge on Monday refused to dismiss 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.

Political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit after university officials denied their requests to serve as plaintiffs’ witnesses in a legal battle about a new state elections law (SB 90) that will, in part, make it harder for Floridians to vote by mail.

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The professors turned to the court after university officials told them that going against the executive branch of the government was “adverse” to the school’s interests. Three additional professors later joined as plaintiffs in the lawsuit.

The professors contend that the university’s conflict-of-interest policy violates First Amendment speech rights and discriminates based on viewpoint and content.

Amid a national spotlight on the policy, University of Florida President Kent Fuchs walked back the decision on the professors’ testimony in the elections case, saying they 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 conflict-of-interest issue and signed off on recommended changes to the policy.

The revised policy says there is a “strong presumption” that the university will approve faculty or staff requests to testify as expert witnesses.

University leaders last month asked Chief U.S. District Judge Mark Walker to toss the lawsuit, arguing in part that the case is “moot” because administrators have changed the conflict-of-interest policy.

The defendants — Fuchs, UF Provost Joseph Glover, and the university’s board of trustees — also maintained that the professors lack “standing” as plaintiffs in the case because the university ultimately authorized their requests to serve as expert witnesses.
Judge rebuts defendants' claims that professors lack 'standing' and that changes in policy render case moot

But Walker on Monday refused to stop the case from advancing, finding that the professors face a “credible threat” that future requests will be denied.

Walker’s decision included lengthy excerpts of recent comments by UF Board of Trustees Chairman Morteza “Mori” Hosseini, which the judge said “leave this court with little doubt that the University of Florida intends to enforce its conflict-of-interest policy in the manner plaintiffs fear.”

During a board meeting last month, Hosseini said faculty members had “taken advantage of their positions” by using their university jobs “to improperly advocate personal political viewpoints to the exclusion of others.”

Mori Hosseini, chairman of the University of Florida Board of Trustees, address the board Friday during its session on the Gainesville campus.

“This will not stand,” Hosseini said. “It must stop, and it will stop.” Hosseini also said that state leaders are “fed up” with faculty “misusing their positions.”

“In short, plaintiffs’ activities anger Tallahassee, that threatens the university’s funding, and so the university must halt plaintiffs’ activities,” Walker wrote in Monday’s 23-page ruling.

Walker also rejected the defendants’ arguments that the case is moot because the school’s policy has been revised.

“This case is not about what has happened; this case is about what will happen,” he wrote. “Further, plaintiffs contend that the university reversed course on its earlier denials to try to ride out the firestorm of criticism those denials triggered.

“Once that storm is over, plaintiffs say, the university will pick up right where it left off. And that renewed application of the conflict-of-interest policy is what plaintiffs sue to prevent.”

University of Florida president Kent Fuchs delivers comments during the December meeting of the University of Florida Faculty Senate, at the chamber meeting room in the Reitz Union, in Gainesville Dec. 16, 2021. The faculty senate talked about academic freedoms for faculty members as well as other agenda items.

The university’s revamped policy also falls short, Walker wrote, because it does not set a time limit for administrators to respond to faculty requests. Plaintiffs argued that would allow the university to run out the clock before acting on requests.

“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,” Walker wrote.

The chief judge’s ruling on the motion to dismiss came just days before a Friday hearing in the case. The hearing will focus on the plaintiffs’ request for a preliminary injunction to block the policy from being enforced.

University officials also argued that the case should be dismissed because the professors failed to follow proper grievance procedures required under their union’s collective bargaining agreement.

But Walker rejected those assertions as well, finding the agreement “explicitly specifies an exception … for ‘any alleged violation’ of a faculty member’s constitutional rights.”

©2022 The News Service of Florida. All rights reserved.

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This article originally appeared on The Gainesville Sun: Judge refuses to dismiss UF professors’ free speech lawsuit