In a scathing ruling Friday, Chief U.S. District Judge Mark Walker blocked the University of Florida from enforcing a controversial conflict-of-interest policy that gave school administrators discretion over allowing professors to serve as expert witnesses in litigation.
Walker’s 74-page opinion, calling the policy “pernicious” and a violation of faculty members’ First Amendment rights, vilified University of Florida leaders and admonished their attorneys.
Tenured political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit after university officials denied their requests to serve as witnesses for groups legally challenging a 2021 state elections law (SB 90) that would, in part, make it harder for Floridians to vote by mail. In denying the professors’ requests, 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 university’s conflict-of-interest policy unconstitutionally discriminates based on viewpoint and content and has a “chilling” effect.
Amid a national spotlight on the policy, University of Florida Kent Fuchs ultimately allowed the professors to be paid as expert witnesses in the elections lawsuit and hastily assembled a task force to explore the conflict-of-interest issue and offer recommendations. Fuchs signed off on a revised policy stating there is a “strong presumption” that the university will approve faculty or staff requests to testify as expert witnesses.
But Walker 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.
The policy embraced by Fuchs gives university officials too much discretion, Walker found.
“In other words, what standards or criteria, if any, guide UF’s discretion when deciding what amounts to ‘an important and particularized interest of the university?’ Quite frankly, there are none,” he wrote.
Walker’s order Friday granted the plaintiffs’ request for a preliminary injunction.
“Defendants must 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 order said.
Walker introduced his lengthy ruling with a sketch of the recent “demise of academic freedom” in Hong Kong, noting that universities are stifling dissent to keep in step with repressive national security laws.
“Some might say, ‘that’s China, it could never happen here.’ But plaintiffs contend it already has,” Walker wrote before swatting at UF officials in a footnote.
“If those in UF’s administration find this comparison upsetting, the solution is simple. Stop acting like your contemporaries in Hong Kong,” the footnote said.
The plaintiffs argued that UF is seeking to prevent professors from expressing ideas contradictory to Gov. Ron DeSantis and the Republican-dominated Legislature, which funds the state university system. Walker noted, however, “there is no evidence … that any representative of Florida’s government has directed UF to take any of the actions it has taken in this case.”
Walker rejected arguments by the university that the policy has not “chilled” the professors because they continued to work as experts before and after they were denied permission to participate in the elections lawsuit.
“The problem with defendants’ backward-looking argument is that it confuses what has happened — which is not this lawsuit’s subject — and what will happen,” Walker wrote, noting that the university for years has encouraged the professors to serve as expert witnesses “even if plaintiffs took positions that would irritate Florida’s government.”
To bolster their arguments, the plaintiffs 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 in Friday’s order.
“Considering everything that has happened between UF’s initial denials and this case, I credit plaintiffs’ evidence that they are self-censoring because of UF policy, and I find that their chilled speech stems from their reasonable fears that the policy will be enforced against them moving forward,” he wrote.
The university has “drawn a line in the sand,” Walker chided, saying “the revised policy retains the very features that plaintiffs challenge and continues to chill plaintiffs’ speech just like the original policy before it got its facelift.”
The university is reviewing Walker’s order and “will determine our next steps,” spokeswoman Hessy Fernandez said in an email.
Walker, who received his undergraduate and law degrees from the Gainesville school, skewered attorneys representing Fuchs, UF Provost Joseph Glover and the university’s board of trustees, who are defendants in the lawsuit.
During a hearing last month, defendants’ lawyer Christopher Bartolomucci told Walker he needed more time to answer questions about a 1968 U.S. Supreme Court decision in a First Amendment case, known as Pickering v. Board of Education, that dealt with a school employee’s termination.
Defendants’ counsel “made the dubious assertion that he had no idea that this case implicated the Supreme Court’s test from Pickering and its progeny,” Walker wrote in a lengthy footnote accusing the defendants’ lawyer of “mischief.”
“For the uninitiated, that is roughly equivalent to an attorney in an abortion case feigning surprise in response to a question about Roe v. Wade and its progeny,” the judge wrote.
–Dara Kam, News Service of Florida