Federal Judge Denies University Of Florida’s Motion To Dismiss Professors’ First Amendment Lawsuit

U.S. District Judge Mark Walker refused yesterday to dismiss a lawsuit filed by several University of Florida professors after the school had attempted to block them from testifying in a federal lawsuit concerning voting rights.

The professors allege that the university’s policy on conflicts of interest violates the First Amendment because it discriminates based on viewpoint and content and because it amounts to an unconstitutional prior restraint on speech. They are seeking an injunction that would prevent the university from enforcing “any policy or practice that provides the University discretion to limit Plaintiffs’ ability to undertake outside activities, on a paid or unpaid basis.”

The lawsuit was filed by political science professors Sharon Austin, Michael McDonald and Daniel Smith after university officials had barred them last year from testifying in a federal lawsuit seeking to overturn the state’s new voting law, claiming that because the University of Florida was a state institution, its faculty could not testify as experts because doing so would be “adverse to U.F.’s interests.”

The facts of the case unfolded quickly over several days. After the initial ban drew heavy fire from critics, the institution’s leaders took a step back from an outright prohibition and said that the three – Daniel Smith, Michael McDonald and Sharon Wright Austin – could testify as expert witnesses, as long as they were not paid for doing so. 

A few days later, University of Florida President Kent Fuchs sent a message to the campus stating that he had asked “UF’s Conflicts 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 to approve the requests regardless of personal compensation, assuming the activity is on their own time without using university resources.”

The university had moved to have the case dismissed, arguing several points – that plaintiffs lacked standing because they had ultimately been granted permission to serve as expert witnesses, that because the university had subsequently changed its conflict-of-interest policy their claims had become moot, and that they had not completed a grievance process set out in a collective bargaining agreement.

But on Monday, Judge Walker rejected the university’s arguments and allowed the case to move forward, writing in his 23-page opinion that the faculty members faced a “credible threat” that future requests to testify as experts will be denied.

Recent statements by University of Florida Board of Trustees Chairman Morteza “Mori” Hosseini that were critical of the professors’ actions led Walker to write that he has “little doubt that the University of Florida intends to enforce its conflict-of-interest policy in the manner plaintiffs fear.”

The judge also rejected the university’s claims that the case was moot because it had revised its conflict-of-interest policy.“This case is not about what has happened; this case is about what will happen.”

Walker also found fault with the revised policy itself: “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.”

Plaintiffs’ counsel is scheduled to present oral arguments before the court this Friday on whether the University of Florida’s conflict of interest policy will be allowed to remain in effect.