There is a troubling report in The New York Times of another free speech fight on one of our campuses. Three University of Florida political science professors have told a federal court that the university barred them from assisting plaintiffs in a challenge to the state’s new voting laws. As state employees, they were told that litigating against a state law would be “adverse to U.F.’s interests.” That is a departure from long-standing practices at state universities. It constitutes an obvious attack on the free speech and associational rights of these faculty members as well as academic freedom. The plaintiffs in the challenge wanted to retain Daniel Smith (the chair of the university’s political science department), Michael McDonald, and Sharon Wright Austin.They asked for permission from the dean of the university’s college of arts and sciences, David E. Richardson, who rejected the requests on the grounds that “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.”
The faculty members, however, noted that approval was granted in 2018 in litigation against the state.
The university spokesperson, Hessy Fernandez, insisted
“The university did not deny the First Amendment rights or academic freedom . . . Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.”
I disagree. Professors in state schools routinely assist in research and litigation against state agencies or policies. Law professors often write amicus briefs on constitutional or statutory challenges. Indeed, such work has a long tradition in public interest projects, including death penalty challenges, environmental advocacy, and litigation for equal rights. Universities are not arms of the executive branch like the office of the Florida Attorney General or the department of corrections. They do not bind the government or create waivers on behalf of the state in litigation.
The bar on such expert testimony would also put the state on the slippery slope of censorship. For example, professors write books, research papers, and opinion pieces that are critical of state policies and are often cited in litigation. There is, of course, a distinction between directly participating in a legal challenge and indirectly supporting such a challenge through scholarship. However, if employees cannot assume an “adverse” position to the state, the same logic could be used to bar other forms of academic expression like preparing a “white paper” on possible challenges or directly refuting the data used to support a policy.
Finally, these professors are not basing their research on data or resources that are not available to the public at large. These are not correctional guards using their access to state facilities to help challenge state correctional policies.
There is no compelling reason to bar such work. The state could argue that a jury might view a University of Florida professor as a representative of the state. However, a court can make it clear that the professor is appearing in his own capacity and not as a representative of the state.
Florida’s voting rights changes must rise or fall on their merits. It is in the interest of the public for the best available experts on both sides to be heard. Some of those experts will come from state schools.
Not only is this rule barring valuable experts from important litigation, but it invites arbitrary or opportunistic decisions. A university could bar faculty based on the content of their views. So three professors supporting the voting rights changes might not be “adverse” and therefore allowed to testify in such a case.
Ironically, the case smacks of an academic version of the recent court martial of Lt. Col. Stuart Scheller Jr. for criticizing the withdrawal from Afghanistan. Unlike the military, however, there is not a tradition of “good order and discipline” in academia that bars criticism of one’s superiors in public. To the contrary, academic positions allow scholars to challenge orthodoxy and authority, including the state itself.
In other words, it is a nightmare for free speech as well as good government values. The decision on the three professors should be rescinded and a new policy promulgated to allow state faculty members the same freedom as faculty members at private universities.