A federal judge issued a strongly worded defense of academic freedom Friday, ordering the University of Florida not to enforce its conflict of interest policy against faculty or others participating in lawsuits against the state.
The case raised national attention when three political science professors were initially denied permission to testify in a lawsuit challenging a state law, championed by Gov. Ron DeSantis (R), that limits vote-by-mail practices and ballot drop boxes. It has been closely watched as a symbol of the tensions between politics and academia, particularly at public universities dependent on state funding.
The lawsuit focused on a conflict-of-interest policy enacted in 2020 that requires UF faculty to file a request to participate in any outside activity, which the university could deny if it was found to be in conflict with the interests of the state.
The initial plaintiffs were joined this fall by other faculty members who wanted to speak out against policies promoted by DeSantis, such as the ban on mask mandates.
The lawsuit unleashed complaints from professors voicing concerns, including pressure to change course content and syllabi on controversial topics such as critical race theory, and perceived restrictions on their ability to conduct research relating to the coronavirus pandemic. The allegations have drawn scrutiny from university accreditors and from Congress, and prompted a UF investigation into the research complaints.
“There is more pressure,” from political leaders on public universities nationally, Robert Kelchen, professor of education at the University of Tennessee at Knoxville, said. “There’s a growing partisan divide about the value of higher education in general … there has been distrust growing.” At UF, the results have been more extreme, he said.
Belle Wheelan, president of the Southern Association of Colleges and Schools Commission on Colleges, said that the accrediting body had sent questions to the UF administration, received a response, and is reassured in part, but continues to have concerns about academic freedom. They will send a committee to UF’s campus this semester to determine if the school is in compliance with the association’s standards, she said.
In a blistering 74-page order on Friday, Walker began by invoking the University of Hong Kong’s 2021 removal of a massive statue commemorating the victims of the 1989 Tiananmen Square massacre, and describing faculty feeling intense political pressure from China. “Some might say, ‘that’s China, it could never happen here,’ ” he wrote. “But Plaintiffs contend it already has.”
In a pointed footnote, Walker wrote, “If those in UF’s administration find this comparison upsetting, the solution is simple. Stop acting like your contemporaries in Hong Kong.”
Hessy Fernandez, a spokeswoman for the University of Florida, said school officials are reviewing the order and will determine their next steps.
David A. O’Neil, attorney to plaintiffs, said Friday that the ruling was a “total victory,” affirming the independence of public universities and the rights of faculty to share their views about topics of their expertise with the public “without any interference because politicians in the state capital don’t like what they have to say.”
The judge recognized the broader stakes here, O’Neil said. The case arises at UF, “but this could happen at any university that depends on the state for funding. The judge made it very clear if any other university were to try this, it would be unconstitutional.”
The case, brought on behalf of professors Sharon Austin, Michael McDonald, Daniel Smith, Jeffrey Goldhagen, Teresa J. Reid, and Kenneth B. Nunn, challenged the university’s conflict-of-interest policy.
Austin, McDonald and Smith had sought to testify in a case regarding voting rights, and were initially denied permission to do so, told that the university is a state actor and that litigation against the state is adverse to university interests. Goldhagen had initially been denied permission to testify about mask use for children. Reid and Nunn had been advised not to identify themselves as UF professors in signing onto an amicus brief regarding voting rights for felons.
In early November, after facing pushback from faculty, alumni and other academics, the university reversed course and said Austin, McDonald and Smith should not be prevented from testifying.
The university sought to have the case dismissed, arguing in part that the case was moot because the three professors had been granted permission to testify before the lawsuit was filed. “They simply refuse to take yes for an answer,” lawyers for the university wrote. The university had amended its policy, with “a strong presumption in favor of permitting faculty and staff to testify as expert witnesses in litigation against the state.”
University officials had also taken other steps in the fall to reassure faculty, including issuing statements in support of academic freedom.
UF President W. Kent Fuchs, who announced this month that he would “transition from president to professor” after seven years of leading the university, had agreed to some of the recommendations of a faculty senate report on academic freedom, including review of any expert-witness requests denied, reaffirming the right of faculty to speak to the press as private citizens or as experts using their UF credentials only for identification, and reaffirming their right to control their syllabi and course materials.
But Judge Walker concluded that the revised conflict of interest policy still gives UF the right to bar testimony contrary to its interests.
He noted that the university’s faculty senate had found, among other concerns, “grave concern about retaliation,” that faculty members engaged in self-censorship, and the perception that the school’s administration is under pressure to avoid doing anything that might provoke the state’s political leaders.
The judge for the Northern District of Florida concluded faculty’s fears were reasonable, that they were “suffering the ongoing injury of self-censorship,” as a result of the policy, and that they could reasonably expect that the university would use its policy “to squelch their speech.”
Walker wrote that UF is willing to bear heavy burdens 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,” for the legal defense of the policy.
“The only thing UF will not do, it seems,” he wrote, “is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.”
Walker denied the request for an injunction in an aspect of the case involving Reid and Nunn, two law professors who had signed onto an amicus brief supporting a lawsuit regarding voting rights. The university has now clearly affirmed, he wrote, that professors can sign briefs with their university affiliations.
Robert C. Post, a law professor at Yale University, said he had not yet read Walker’s ruling Friday but based on his understanding of the case said the judge had ruled correctly. Public universities don’t want to alienate a major funding source, he said, “so they identify the interests of the university with the interest of the state. But the interest of the university is in promoting knowledge, not in promoting whoever happens to be in political power at a particular time.”
In fact, the administration of the University of Florida should be insulating its professors from the political pressure from the state, he said. “It’s the reverse. They have it backward.”