Drain the Swamp

The University of Florida has been dealt a scathing injunction over its bungling, politically motivated assault on free speech. The university’s board of trustees chairman should resign in disgrace.

By Benjamin Schwarz and Jon Zobenica

Chief Judge Mark E. Walker, of the United States District Court for the Northern District of Florida, has issued a preliminary injunction against his alma mater, the University of Florida (UF), in a suit brought by several UF professors. The suit (Austin et al. v. University of Florida Board of Trustees et al.) pertains to the university’s ill-defined and, per Judge Walker, “constitutionally infirm” policy regarding whether and when UF professors will be allowed to serve as expert witnesses in legal disputes—specifically disputes in which the state of Florida is a party to the litigation.

The 74-page injunction drips with judicial exasperation, even with scorn for the behavior of the defendants (i.e., UF administrators) and their legal counsel in the face of this constitutional challenge. According to Judge Walker, the defendants and their counsel have engaged in “mischief,” and have made claims that are “simply not credible.” Their arguments, being “disingenuous” and “too clever by half,” raise “an issue of candor.” Their positions are “inconsistent,” even “shocking,” and their supposed remedy for the matter under dispute is characterized variously as “simply a red herring,” a “smokescreen,” a “facelift,” a “cosmetic revision.” Exhausted, perhaps, from being driven to such metaphorical excess, Judge Walker states flatly that the remedy is “utterly devoid of meaningful content,” and then he rises to one last figurative flourish: “In sum, Defendants’ side of the scale sits empty.” 

None of this bodes well for the university should it decide to test its odds in court.

At issue is whether the university is using its conflict-of-interest policy to stifle professors’ speech when that speech—particularly expert-witness testimony in cases involving the state of Florida—would potentially displease the members of Florida’s executive branch of government, currently led by Republican Governor Ron DeSantis. (The plaintiffs, who are experts in elections, sought to give testimony in a class-action suit, Florida Rising v. Lee, that claims the state of Florida has abridged the voting rights of its citizens. We offer no opinion on the merits of that suit.) Such stifling would amount to viewpoint-based discrimination in violation of both the First Amendment and the principle of academic freedom. The university insists that it has not engaged in any such stifling, though when recently denying plaintiffs’ requests to undertake expert-witness work, the university itself explained, in one case, that “[o]utside activities that may pose a conflict to the executive branch of the state of Florida create a conflict for the University of Florida” and, in another, that “[a]s UF is a state actor, litigation against the state is adverse to UF’s interests.”

In essence, say UF’s trustees and administration, outside speech by UF professors on matters of public interest must align with the goals and sentiments of Florida’s executive branch, or at any rate must not be at odds with those goals and sentiments. In cases where there’s a presumed threat of the latter, the university arrogates to itself the right to forestall such speech by issuing a denial of request, and if such speech is engaged in without prior approval from UF, that speech will be regarded as a violation of UF policy, leaving the speaker subject to disciplinary measures that could include possible loss of employment.

“Given the above,” says Judge Walker, “it is not unreasonable, moving forward, for Plaintiffs to believe that UF will use its policy to squelch their speech; it is unreasonable for them to believe that it will not.”

The university’s rationale is that since UF is a state institution, UF professors are state employees whose public speech—even speech made beyond the scope of the professors’ official duties—is not subject to First Amendment protection but is instead under the discretion of the university itself, as an employer. It is a rationale that the Supreme Court denied more than fifty years ago in Pickering v. Board of Education (1968), asserting that public employees speaking on matters of public concern, and speaking as citizens (not as employees in an official capacity), do in fact enjoy a First Amendment right to such speech. Yet, remarked an incredulous Judge Walker, “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. 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.”

Furthermore, UF’s rationale runs head first into UF’s own explicit policy regarding outside speech engaged in by UF professors. When filling out a university disclosure form as part of their request to undertake outside expert-witness work, professors are required to acknowledge the following in their disclosure form: “I affirm that the attorney with whom I will be working understands that my engagement in this activity is in my capacity as a private citizen and not as an employee of the University of Florida.” A half a century’s worth of legal precedent couldn’t demolish UF’s defense any better than does that succinct and perfectly worded bit of university boilerplate. 

In December, Mori Hosseini, chairman of the University of Florida board of trustees, waded into the matter with a shameless mix of bullying and toadying. “We saw that some have taken advantage of their positions,” he said, in a veiled reference to the plaintiffs. He then continued:

I am speaking here of faculty members taking second jobs using the university’s state resources for their own personal gain. I am speaking about faculty members who use their position of authority to improperly advocate personal political viewpoints to the exclusion of others . . .

This will not stand. It must stop. And it will stop. If you allow something to happen, that means you condone it. Enough. 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.

UF and its counsel have further accused the plaintiffs of misleading the court about the timing of their expert-witness work relative to the denial notices the plaintiffs ultimately received from UF. In short, some professors undertook expert-witness work before (and without) receiving permission to do so from the university, on the assumption that—as had always been the case in the past—they would receive just such permission. Leaving aside the fact that these chronologies had already been entered into the court record (thus, no deceit), UF, in its own defense, has stressed that its conflict-of-interest policy features “a strong presumption in favor of permitting faculty and staff to testify as expert witnesses in litigation against the state.” But, as Judge Walker notes, that same policy “contains an explicit carveout allowing viewpoint discrimination when Defendants decide an issue is important enough.”

So on the one hand, UF characterizes the plaintiffs as dishonest, self-seeking moonlighters whose work not only amounts to an abuse of taxpayer money and university resources but also presents a clear conflict of interest, and on the other hand insists that of course they and all faculty should assume now and always that they have almost unfettered permission to engage in the type of work just disparaged. Or, as Judge Walker put it, “This Court cannot help noting the sad irony that UF touts its strong ‘presumption’ favoring speech with one breath and with the other condemns Plaintiffs as liars with unclean hands for having the audacity to presume that UF would approve their requests to speak.”

Judge Walker found no indication that Florida’s executive branch was slyly compelling UF administrators to do what those administrators seemed certain was its bidding. What Judge Walker did observe, however, was almost worse. “In an apparent act of vorauseilender Gehorsam,” he noted, “UF 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.” Vorauseilender Gehorsam translates as “pre-emptive subservience” or “anticipatory obedience,” and Judge Walker notes that this exact thing has been underway at the University of Hong Kong of late, where administrators, seemingly of their own volition, are jettisoning academic freedom and the university’s own reputation in a bid to bring the university more in line with the presumed goals and sentiments of Beijing. 

It is an analogy certain to be found distasteful, as it should be, both by UF (the state’s flagship university) and by the Florida executive branch to which UF administrators have demonstrated such fealty. But, Judge Walker says, “consider the costs UF 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 . . . The only thing UF will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.”

The principle of free speech is timeless and viewpoint-neutral, and the First Amendment’s chief concern is that government, above all, should not in any way be a party to constraining, qualifying, or abridging the right to free speech. Yet UF administrators, who should very well know this fundamental aspect of American civics, have suggested that free speech should in fact be subject to constraint or abridgment given the assumed preferences of the party holding temporal power in state government. This is unworthy of a college freshman, let alone administrators at Florida’s flagship university. This matter resides, as Judge Walker noted, “in the First Amendment’s heartland.”

As the litigation in the suit brought by the professors against UF’s trustees and administration continues, Judge Walker (and the plaintiffs) will no doubt be compelled to further educate UF’s administrative leadership in constitutional law and principles, as well as in the values of academe. UF will need reminding that the Supreme Court has long made clear that, to quote Justice Felix Frankfurter’s concurring opinion in Sweezy v. New Hampshire (1957), “a university ceases to be true to its own nature if it becomes the tool of . . . State or any sectional interest.” Therefore, public university professors’ research and their speech communicating that research must be afforded the broadest conceivable protections against abridgment or censorship by the state. Professors, as Justice Hugo Black averred in his concurrence in Wieman v. Updegraff (1952), “must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma.” Perforce, then, as the Court declared in Keyishian v. Board of Regents (1967): “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.”

Indeed, although UF’s trustees and administration have stressed that UF should enhance the public welfare, no doubt Judge Walker will have to explain to them that curtailing academic freedom not only abridges the rights of professors but also deprives the public of the benefits of the knowledge and unorthodox ideas that can only emerge in an environment of unfettered inquiry and publication. Furthermore, by denying to the federal courts the testimony of UF professors on possible violations of citizens’ voting rights, the UF administration has deprived the court of its ability to be informed by and to question the very experts who (at least in the judgment of Florida Rising’s plaintiffs) are best qualified to enlighten the court on a matter of paramount public concern. Worse still, by stymieing the professors’ testimony out of solicitude for the perceived interests of the state’s executive branch, the UF administration and trustees have effectively acted as agents (however unbidden) of one branch of government in a manner that vitiates the independence and effectiveness of another branch—the federal judiciary. In their small-minded way and however unintentionally, the UF administration and trustees have thereby contorted democracy by “prohibit[ing] speech and expression upon which courts must depend for the proper exercise of the judicial power” (to quote the Supreme Court’s opinion in Legal Services Corporation v. Velazquez, 2001).

In response to Mori Hosseini’s ardent endorsement of the UF administration’s execrable actions and to Judge Walker’s compelling indictment of UF’s trustees and administrative leadership, we issue this message to Mori Hosseini:

Only by adhering to the principles of academic freedom can the university fulfill its central mission: the pursuit and transmission of knowledge. But because academic freedom contradicts some of our most basic impulses, it is always vulnerable. It depends on those in your position to safeguard it. As Judge Walker’s preliminary injunction elucidates, in your hectoring and pandering manner and in your disregard—indeed your contempt—for the values at the heart of the academic enterprise, you have abysmally failed in your duties. In the face of criticism similar to that which Judge Walker has leveled, University of Florida President Kent Fuchs has sensibly announced his plans to resign. You should follow suit. You profess to be committed to both the principles of academic freedom and to the efforts of the University of Florida to become a great academic institution. In fact, you have perverted the former and besmirched the latter. To combine disparate but apt historical quotations: Have you no sense of decency? You have sat too long for any good you have been doing lately. In the name of God, go.

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