Judge stops UF from enforcing policy until trial

A federal judge is temporarily blocking UF from enforcing part of its conflict-of-interest policy for faculty and staff.

Mark Walker, chief judge of the U.S. District Court for the Northern District of Florida, issued a ruling Friday in favor of six professors who are suing the university in a free speech case.

He barred UF from denying faculty and staff requests to participate in trials and legal proceedings involving the state of Florida.

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“Testifying in a public proceeding on matters of great public concern lies at the First Amendment’s heart,” Walker wrote.

The preliminary injunction remains in effect until the conclusion of a bench trial in the case, which is scheduled for early November.

Three political science professors—Sharon Wright Austin, Michael McDonald and Daniel A. Smith—filed the lawsuit against the school after UF denied their requests to participate as voting rights experts in a lawsuit that challenged Florida’s S.B. 90.

Later, Jeffrey Goldhagen, a professor of pediatrics, and Teresa J. Reid and Kenneth B. Nunn, both law professors, joined the complaint. UF denied Goldhagen’s request to be an expert witness in a case challenging an executive order involving masks in schools.

The two law professors asked to sign a friend of the court brief in a case involving a Florida law that requires recently released felons to pay financial obligations before their voting rights are restored. They were allowed to sign the brief but told they couldn’t identify themselves as being associated with UF.

Judge Walker, who received both his undergraduate and law degrees from UF, took the university to task repeatedly during the 74-page order—both over its policies and how its attorneys have argued the case.

He wrote that the conflict of interest policy was an “unlawful prior restraint” on free speech and could cause faculty members to censor themselves.

“UF’s policy allows it to silence speech before it happens,” Walker said.

He also wrote the policy allows UF “unbridled discretion” to decide if faculty and staff could participate in litigation involving the state and that the policy places no time limit on the decision making.

“UF has failed to justify its restraint on speech,” Walker wrote.

Walker additionally rejected the university’s argument that a new revision changed the underlying problems with the policy, calling the revised language a “dolled-up version of the same old conflict-of-interest policy.”

“The ‘revised’ policy continues to permit UF … to deny [the] plaintiffs—indeed, all faculty and staff—the opportunity to participate in litigation against the state of Florida because of the content or viewpoint of their testimony,” Walker wrote.

The judge also took issue with how attorneys for UF had characterized the professors involved in the lawsuit in previous hearings and court filings.

“Defendants denigrated their own professors as being no better than two-faced mercenaries when they seek to testify as experts in their field in cases challenging Florida law,” Walker wrote.

He also criticized UF attorneys for being “surprised” during a hearing that they were asked questions about the application of the Pickering v. Board of Education case, a Supreme Court decision focused on the free speech rights of a public school teacher.

“At the first hearing, defendants’ counsel made the dubious assertion that he had no idea that this case implicated the Supreme Court’s test from Pickering…,” Walker wrote in a lengthy footnote. “[T]hat is roughly equivalent to an attorney in an abortion case feigning surprise in response to a question about Roe v. Wade.”

The judge’s order leaves in place the school’s conflict of commitment policy, which bars professors from being involved in outside activities that take too much time away from their university duties.

The ruling also denied the professors’ request for an injunction involving the friend of the court—or “amicus”—brief policy because a clarified policy allows professors to list their UF affiliation.

In addition to the ongoing legal challenge, UF is facing an investigation by its accrediting body over the policy.

“Consider the costs UF is willing to bear to maintain its power to discriminate based on viewpoint,” Walker wrote. “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.”

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