U.S. judge raps U.F.’s knuckles; blocks policy silencing testimony by professors

Comparisons to communist functionaries, ‘Emperor’s New Clothes’

By: - January 22, 2022 7:00 am
University of Florida

University of Florida campus. Credit: Wikimedia Commons

A federal judge has compared the University of Florida to the Chinese Communist Party functionaries in blocking the university from preventing faculty from testifying in lawsuits challenging DeSantis administration policies.

Ruling Friday, Chief U.S. District Judge Mark Walker in Tallahassee opened his 74-page opinion with a reference to the “Pillar of Shame” statute, commemorating the 1989 Tiananmen Square massacre, which administrators at the University of Hong Kong removed last year under pressure from Beijing. The move “was emblematic of the demise of academic freedom in Hong Kong,” he wrote.

So, too, he continued, has U.F.’s attempt to hinder its professors from contributing their expertise in lawsuits affecting matters of public importance roiled the university community in Gainesville, causing professors to self-censor lest they face reprisal.

“Some might say, “That’s China, it could never happen here.’ But plaintiffs contend it already has.

“In an apparent act of vorauseilender Gehorsam [pre-emptive subservience], they say, U.F. has bowed to perceived pressure from Florida’s political leaders and has sanctioned the unconstitutional suppression of ideas out of favor with Florida’s ruling party,” Walker wrote.

He agreed with the professors who challenged the policy, ruling that the university had violated their First Amendment rights, and ordered administrators to knock it off pending further proceedings in the constitutional challenge to U.F.’s policy requiring profs to pre-clear any expert testimony in lawsuits.

What’s more, Walker compared university administrators’ reluctance to be seen as counter to the state’s political leaders to the courtiers in the old fairy tale, “The Emperor’s New Clothes.”

“This fear of appearing unfit for one’s position spread to all within the emperor’s sphere — stifling the sense of open-mindedness and critical inquiry that makes for responsible citizens — until the day a young boy spoke truthfully of that which everyone else pretended not to see,” he wrote.

“Here, fortunately, democracy does not depend upon a lone child to challenge the ‘emperors’ of our time. Instead, this nation’s ‘priests of democracy’ — its learned professors — guide us in our pursuit of truth and informed citizenship.

“Yet, when several U.F. professors were called to speak truthfully on topics related to their expertise in cases challenging the state, their requests to speak truthfully and critically in courts of law were denied in an all-too-familiar display of anticipatory obedience. It was not until the wider world caught on to what was happening that the muzzle was lifted.”

The ruling allows the university to discourage professors from using campus time and resources to participate in litigation, but otherwise bars them from enforcing its conflict of interest rules to prevent professors and staff from testifying in court.

“U.F.’s policy amounts to a prior restraint on speech because it prevents faculty and staff from speaking unless they apply for approval … and U.F. approves their request. In other words, U.F.’s policy allows it to silence speech before it happens,” Walker wrote.

The order applies to the Board of Trustees, university president Kent Fuchs, and to other administrators and attorneys for U.F.

University of Florida President Kent Fuchs. Credit: Wikipedia.

Fuchs, credited with leading the university to a No. 5 ranking from U.S. News & World Report among the best public universities, has announced he will retire at the end of the academic year.

Gov. Ron DeSantis held a news conference in September to brag about the achievement ranking.

The case arose from U.F.’s refusal to let professors Sharon Austin, Michael McDonald, and Daniel Smith contribute to a lawsuit challenging SB 90, which DeSantis pushed through the Legislature, making it harder to cast mail-in ballots via drop boxes and otherwise tightening state election law.

‘Adverse to U.F.’s interests’

Previously, the university encouraged professors to contribute their expertise in lawsuits affecting public policy, Judge Walker noted.

Now, administrators were concluding that because “U.F. is a state actor, litigation against the state is adverse to U.F.’s interests.”

A national furor ensued.

The Southern Association of Colleges and Schools Commission on Colleges, the university’s accrediting organization, opened an investigation. Additional professors reported that they’d also been stifled, including Dr. Jeffrey Goldhagen, barred from testifying about face masks use by children against COVID-19, plus law professors Kenneth Nunn and Teresa Reid, who were barred from mentioning their university affiliation in litigation over voting rights for former felons.

A Faculty Senate report cited ‘palpable reticence and even fear on the part of faculty to speak up’ on hot button issues and ‘grave concern about retaliation and a sense that anyone who objected to the state of affairs might lose his or her job or be punished in some way.’”

Stung by the unflattering attention, administrators backed off somewhat, but the university still requires putative expert witnesses to clear their testimony in advance. But they trashed the professors as “moonlighters,” robbers,” “political hacks,” and “disobedient liars,” Walker wrote.

Mori Hosseini, chair of the University of Florida Board of Trustees. Credit: UF website.

And Board of Trustees Chairman Mori Hosseini’s during a meeting “made plain that U.F. was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee by ‘advocat[ing] personal political viewpoints to the exclusion of others,’” as Walker put it.

At one point, Hosseini declared: “Let me tell you, our legislators are not going to put up with the wasting of state money and resources, and neither is this board.”

According to Chairman Hosseini, “It must stop, and it WILL stop,” Walker wrote.

Yet: “U.F. has applied the policy so inconsistently that in one day the need to do damage control for bad press can nullify the ‘challenging the State of Florida’ conflict. Plus, U.F. has taken the inconsistent position that while professors have a ‘strong presumption’ in their favor to speak, they should not presume they are allowed to speak and begin preparing expert reports while any … request remains pending. U.F.’s defense on this point is too clever by half,” Walker wrote.

“Considering everything that has happened between U.F.’s initial denials and this case, I credit plaintiffs’ evidence that they are self-censoring because of U.F.’s policy, and I find that their chilled speech stems from their reasonable fears that the policy will be enforced against them moving forward,” he declared.

“First, consider the costs U.F. is willing to bear 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 of hiring an experienced D.C. firm to defend its policy. The only thing U.F. will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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