A university’s fundamental attack on academic freedom
That same day, Fuchs received a ‘demand letter’ from the lawyers for professors Sharon Wright Austin, Michael McDonald and Daniel A Smith, who had been barred from explaining to the court how Senate Bill 90 (SB 90) would make it more difficult for African American and Latinx Floridians to vote.
SB 90, which Florida’s Republican Governor Ron DeSantis signed into law on Fox News, forbids state agencies from running voter registration drives, restricts the use of drop boxes, cuts early voting hours and makes it more difficult to request mail-in ballots.
The lawyers’ letter called the task force a “cynical tactic to defuse press attention and stem the reputational damage that resulted when the university imposed prior restraint on, and sought to discriminate based on viewpoint among, the speech of its faculty members”.
Further, the professor’s attorneys David A O’Neil and Paul Donnelly wrote, the task force, which Fuchs told the university community would review the university’s conflict of interest policy for “consistency and fidelity”, was defective on three grounds: the prior (and “problematic”) actions of two of the task force’s members in relation to the bannings, the task force’s “scope” and the fact that Fuchs himself is “conflicted”.
After noting that the task force had no members from the College of Liberal Arts and Sciences, which houses the university’s political science department (chaired by Smith), the letter questions the presence on the task force of both College of Law Dean Laura Rosenbury and Terra DuBois, the university’s chief compliance, ethics and privacy officer.
Both have “engaged in the development and unconstitutional execution of the existing conflict of interest policies”, the professors’ lawyers assert. Accordingly, “[n]either can fairly [n]or objectively judge the permissibility or constitutionality of their own actions” in regard to the decision to bar Austin, McDonald and Smith from testifying.
A week earlier, on 5 November – the same day that Austin, McDonald and Smith’s lawyers filed a case in the US District Court in Gainesville against the University of Florida Board of Trustees – Fuchs and Joseph Glover, the University of Florida’s provost, wrote an open letter to the University of Florida (UF) campus community in an attempt to stem the growing furore.
In it, the president said the task force was charged with making “a recommendation to me on how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party”.
Fuchs also responded to the public backlash by directing the university’s Conflict 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 approve the requests regardless of personal compensation [for appearing as a witness], assuming the activity is on their own time without using university resources”.
According to O’Neil and Donnelly, by limiting the focus of the task force to the question of expert witnesses, Fuchs directed it away from “the true issue: concerted and repeated denials of First Amendment rights and academic freedom”.
These last words refer to other recent incidents when UF had denied professors permission to share their expertise in courts in which the decisions of the state government were being challenged.
O’Neil and Donnelly’s letter told Fuchs that he was “conflicted” because on 23 September he had told the university’s faculty senate that “challenging the state government’s ‘final decision’ on a policy – and doing something publicly that draws national attention such as a vote of no confidence [in that policy] – would have no positive impact on the university’s ability to influence the policy”.
Indeed, Fuchs went further and told the senate: “It would fracture the relationship between the university and the state government.”
On 15 November, O’Neil and Donnelly filed an amended complaint with the Federal Court, as several other UF professors joined the original lawsuit. Among them are law professors Kenneth B Nunn and Teresa Reid who planned to sign an amicus curiae (friend of the court) brief supporting a challenge to SB 7066.
Signed into law in June of 2019 by Governor Ron DeSantis, SB 7066 requires Florida residents with felony convictions to pay their outstanding fines before they could be eligible to vote; critics liken this to the Jim Crow-era ‘poll tax’ designed to keep African Americans from voting.
On 9 July of this year, a week after a new Conflict of Interest Policy came into effect, law professor Kenneth B Nunn was informed by Rosenbury that her previous guidance that signing an amicus curiae (friend of the court) brief was not considered “outside activity” requiring UF approval had changed.
The dean now said that “faculty participation in litigation against the state of Florida or any agency thereof, including through amicus briefs, is considered a potential conflict of interest” and that prior approval for signing such amicus briefs had to be obtained.
After some toing and froing, UF approved the request by law professors Kenneth B Nunn and Teresa Reid (and two other law professors who have not joined the lawsuit) – with the proviso that the law professors do not indicate their affiliation with UF.
In mid-August of this year, UF denied a request made by Dr Jeffrey L Goldhagen, a paediatrician and professor at the University of Florida College of Medicine – as well as a frequent contributor to the media on public health issues, an oft-called upon expert witness on paediatric issues as well as a former county Health Department director – to submit a sworn statement supporting a court challenge to DeSantis’ executive order banning mask mandates in Florida’s public schools.
Goldhagen’s request for an explanation reiterated the fact that his request ran afoul of UF’s rules around conflict of interest.
In their court filing, O’Neil and Donnelly said that Gary Wimsett, Jr, assistant vice president for conflicts of interest, “made no attempt to hide that the university was denying Professor Goldhagen’s application because Professor Goldhagen sought to testify on behalf of Florida parents and not the State, stating: ‘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’.”
Goldhagen then asked Wimsett about the appeal process open to him. He was told that “[t]here is no mechanism for appealing disapprovals”.
Still, as Austin, McDonald and Smith sent the information required under the conflict of interest regulations to UF’s administration, they had no reason to suspect that pro-forma permission to testify would not be forthcoming. Both McDonald and Smith had previously been praised for stepping out of the ivory tower and sharing their knowledge in the real world.
In one of Smith’s annual performance reviews, O’Neil and Donnelly wrote in their court filing, that “the university had praised his research and advocacy on voting rights as ‘impactful and important for our colleagues, students, and the citizens of Florida’.”
Instead, on 7 July and again on 11 October, the university wrote to Smith denying his request, saying in part that such “outside activities … may pose a conflict of interest to the executive branch of the State of Florida [ie Governor DeSantis]” and could “create a conflict for the University of Florida”.
On 13 October, McDonald learned that his request had been turned down: “UF will deny employee’s requests to engage in outside activities when it determines the activities are adverse to its interests.”
Two days later, Austin received the same news in much the same language, save for the additional statement: “As UF is a state actor, litigation against the State is adverse to UF’s interests.”
According to Sterling Professor of Law at Yale University, Robert Post, the fact that the university administration saw the prospect of Austin, McDonald and Smith’s testimony as potentially making the university’s relationship with the state government problematic is irrelevant to the law.
“The speech of professors cannot be limited by a state university because the university fears it might injure the governor of the state. The university’s legitimate interests do not include the political fortunes of a public official,” Post says.
First Amendment violations
According to Post, Ronald Krotoszynski (John S Stone Chairholder of Law and director of faculty research at the University of Alabama), and lawyer Tom Leatherbury (Dallas, Texas), the UF denials of requests to appear as expert witnesses violate the First Amendment’s protection of free speech.
“The First Amendment,” says Leatherby, “prohibits states enacting laws that discriminate against certain viewpoints and engage in content discrimination. So, the regulation [at UF], as I understand it, was targeted at, or the policy was targeted at, those who were giving testimony averse to Florida’s position in that lawsuit. That runs afoul of the First Amendment because it would be an unlawful viewpoint discrimination by a state actor.”
For his part, Krotoszynski explained that conflict of interest clauses are standard in university and faculty contracts, and are designed to ensure that faculty devote their efforts to their teaching, field of study and service. “It seems to me that these professors’ testimony would be squarely within the wheelhouse of their academic work.”
Nor did these legal experts think much of the additional reason to deny Austin, McDonald and Smith permission to testify that was posted on UF’s website on 30 October.
After asserting that the university “has a long track record of supporting free speech and our faculty’s academic freedom” and that it had not denied Smith, McDonald and Austin’s First Amendment rights or their academic freedom, the posting offered a new reason for denying them permission to testify.
“The university denied the requests of these full-time employees to undertake paid work [expert witnesses in the US are routinely paid for their time and effort] that is adverse to the university’s interests as a state of Florida institution.”
When I asked Post about whether being paid as an expert witness changed anything, he answered: “The university tried to make the argument that these professors could not be paid. But the university was unable to explain why being paid as an expert witness was somehow inconsistent with the professors’ duties at the university. It is hard for me to think of a reason why that might be so.”
According to Krotoszynski, to ensure that their primary efforts will be research, in the classroom or in university service, faculty or university contracts commonly limit the amount of money a professor may earn from outside sources (aside from royalties from books). Reasonable payment for time devoted to being an expert witness, he said, is almost always allowed.
“I do not think that the state of Florida or a government entity in Florida can pick and choose which kinds of academic extracurricular activities (ideologically) faculty are allowed in the kitchen.”
In other words, he explained, what a university may not do is decide whom it will allow to speak outside the campus based on the content of that speech, whether or not the faculty member is paid.
This is why O’Neil and Donnelly brought to the Federal Court’s attention the fact that under a conflict of interest policy similar to UF’s, Florida International University (FIU) recently gave Dr Dario Moreno, a professor in FIU’s department of politics and international relations permission to appear as an expert witness and to get paid for doing so.
Moreno, they told the court, appeared as an expert witness for the Republican National Committee and the National Republican Senatorial Committee, two of the defendants in the case brought by the League of Women Voters against SB 90, the very same one Austin, McDonald and Smith were (originally) barred from testifying in.
Uniformly negative reaction
Although Goldhagen’s case garnered some publicity, it was not until Austin, McDonald and Smith were denied permission to testify that the UF’s conflict of interest policies became a cause célèbre. Reaction to UF’s actions was uniformly negative.
On 31 October, the Miami Herald published an article with the headline, “In ‘chilling’ decision, UF professors have been barred from testifying against Florida.”
On 2 November, the Southern Association of Colleges and Schools Commission on Colleges wrote to UF questioning whether the university had contravened the standards of accreditation respecting both external influence and academic freedom.
On 3 November, the Washington Post carried an op-ed by McDonald and Smith in which they reported that they were “stunned to learn last month that the university was barring us from testifying” and characterised the move as “a gross violation of academic freedom”.
That same day the non-partisan Foundation for Individual Rights in Education said: “We are, however, deeply concerned by UF’s decision to prohibit three professors from testifying in a voting rights lawsuit against the state of Florida.
“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 call on UF to immediately reverse this decision and allow the professors to participate in the lawsuit as expert witnesses with or without compensation.”
The American Association of University Professors (AAUP) also condemned UF’s action as trampling on academic freedom. “By gagging these faculty members, from sharing their academic expertise, that’s a violation of academic freedom,” Irene Mulvey, president of AAUP, told University World News.
Mulvey was just one of many critics of UF’s action to accuse the university of using a “gagging order” or “gag order”.
To the dismay of lawyers in the United States, in complex civil and criminal trials court mandated ‘gag orders’ have become fairly routine, as is also the case in common law countries Britain, Australia and Canada.
However, America’s most famous gag order had nothing to do with, for example, a judge in a criminal trial ordering the press to withhold certain information revealed in court until a verdict is rendered. Rather, it was the ‘gag rule’ the House of Representatives first passed in 1835 that forbid congressmen from considering anti-slavery petitions.
The gag rule lasted for nine years until former president and then Congressman John Quincy Adams successfully led the fight to repeal it.
The symmetry between the gag rule that prevented abolitionist petitions from being tabled in the House of Representatives and the attempt to gag professors who were to appear in court arguing that SB 90 infringed on the voting rights of African Americans is hard to miss.
As Krotoszynski noted while speaking about the context of UF’s attempt to prevent its professors from appearing in defence of voting rights: “You would think that the University of Florida was in favour of universal voting rights, especially given Florida’s heinous history of racism and segregation.
“I’m from Alabama, so I’m not calling the kettle black. The entire deep south has a deeply problematic and fraught relationship to full and equal citizenship and rights.
“And so, for the University of Florida, given its legacy as a segregated institution, to do this, struck me, frankly, as shocking.”
In an interview on the website MyScience, posted on 3 November, John Aubrey Douglass, research professor of public policy and higher education at the Center for Studies in Higher Education at the University of California, Berkeley, and editor of the recently published Neo-Nationalism and Universities: Populists, autocrats, and the future of higher education, also used the word “chilling” and said that UF’s actions violated academic freedom and linked it to “a troubling rise in neo-nationalism that threatens independent scholarship worldwide”.
Although DeSantis has been uncharacteristically quiet on this issue, Douglass believes that the “Republican Party in Florida and Governor Ron DeSantis are embracing many of the characteristics of right-wing neo-nationalism found in other parts of the world”.
Douglass links the anti-immigrant, nativist, anti-science rhetoric and policies as well as gerrymandering and other efforts to control elections to “seeing forms of control of public institutions and the judiciary. Universities are no exception.”
When I asked Douglass about the deeper political implications of UF’s attempt to gag its professors, he painted a dark picture.
Pattern of right-wing targeting
“We have a clear pattern in red states [which are Republican-voting states] of right-wing Republicans targeting public universities, often with legislation intended to redefine tenure [both Tennessee and Georgia are presently trying to redefine tenure], complaints about critical race theory and expanding campus hate speech policies and legislative attempts to impose penalties on universities deemed intolerant of conservative voices,” he told University World News by email.
Bowing to this pressure, Fuchs formed the task force, but its probity has been placed under a cloud by the “demand letter”.
On 12 November, the first day the task force met, Austin told the Miami Herald that she was much less than sanguine about the task force. “The task force is not the answer. This is a matter for guaranteeing that academic freedom will be respected at our campus and that First Amendment rights will be protected at our campus.
“How they do that is up to them to decide, but the first thing they need to do is to strike down this unconstitutional policy.”
At the task force’s second meeting a day later, according to the Miami Herald, Rosenbury said: “Academic freedom is much more relevant to what happens pursuant to a professor’s job duties”, and here we’re talking about outside activities, before adding, “Because we’re focused on outside activities, the public employee speech cases ... would be the appropriate analysis.”
The central question raised by UF’s attempt to gag its professors is the relationship between the university as an institution and academic freedom.
At the end of our discussion, Post explained this relationship succinctly: “Universities are supposed to be there for the discovery and dissemination of knowledge. Universities are there to insulate professors, not to do the bidding of the governor.”