UF restricted five more professors in cases against the state

“Someone has to have the chutzpah and political integrity to say this is not right,’’ a former USF professor says.
At the University of Florida, restrictions on professors sharing their expertise with those who challenge the state extend well beyond the cases of three faculty members that surfaced over the weekend.
At the University of Florida, restrictions on professors sharing their expertise with those who challenge the state extend well beyond the cases of three faculty members that surfaced over the weekend.
Published Nov. 3, 2021|Updated Nov. 3, 2021

TALLAHASSEE — Last year, four University of Florida law professors who wanted to sign a “friend of the court” brief in a lawsuit challenging a new felons voting law were told that they could not identify themselves as university faculty members in the filing because it involved “an action against the state.”

In August, university officials told a UF professor of pediatrics that he couldn’t work on two cases challenging the state’s ban on mask mandates because participating in lawsuits against Gov. Ron DeSantis’ administration would “create a conflict” for the university.

And on Monday, UF announced that three political science professors can be allowed to provide expert testimony in a voting access case against the state only if they do it without pay.

These actions show how the University of Florida has gradually moved toward suppressing the voices of its scholars who want to offer legal or subject-matter expertise in cases that challenge the policies advanced by the governor or Legislature.

In addition to these eight professors, the Tampa Bay Times/Miami Herald Tallahassee Bureau has learned of other faculty who are reluctant to come forward.

‘Big Brother management’

For the faculty at the state’s flagship university, the episode has Orwellian overtones.

Kenneth Nunn, a 32-year professor of law who was barred from using his UF affiliation to sign an amicus brief in the felons voting case, said it was odd that the university all of a sudden started to track professors’ outside work and require them to ask for permission before they could participate in activities.

“I thought that it was strange and frightening that there would be that kind of Big Brother management to these types of things that we were doing,” Nunn said.

“I’m supposed to be lending my expertise to people who are out there trying to petition their government for change in one way or another or force change in one way or another,” he said. “I just don’t see why that’s viewed as being a conflict of interest when, in my view, it’s the very core of what university faculty should do.”

Jeffrey Goldhagen, a 28-year professor and chief of the Division of Community and Societal Pediatrics at the University of Florida College of Medicine in Jacksonville, was denied involvement in two separate mask cases, including one representing the Disability Independence Group in Miami.

“It was difficult for me personally, not to come forward,” he told the Times/Herald on Tuesday.

He said he broke his silence because he considers the conflict “a critical, defining issue” for academic freedom and First Amendment rights.

“I don’t think it is hyperbole when I say this is how totalitarian regimes unfold,’’ Goldhagen said. “If you deny science and you deny the universities the critical role they play in American society, then you truncate free speech, academic freedom and the dissemination of information.”

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The fallout has been immediate. The agency that sets the accreditation for UF said this week it is investigating whether “academic freedom” and “undue political influence” standards were violated, and the union representing faculty has threatened legal action if the university does not back down.

In a letter to UF president Kent Fuchs on Tuesday, 10 Democratic members of Florida’s congressional delegation urged him to reverse course “and allow these professors to participate with compensation in this voting rights lawsuit.”

UF did not immediately respond to requests for comment about the additional five professors who have been restricted.

Shift in policy

A UF spokesperson said the university changed its policy in November 2020, but emails obtained by the Times/Herald indicate faculty were being rejected for involvement in cases against the state months earlier.

UF Levin College of Law Dean Laura Ann Rosenbury wrote in a July 9, 2020, email to Nunn and other UF officials that signing the amicus brief in the felons voting case was a “potential conflict of interest” because it would be challenging a state position.

If they wanted to sign it, she said, they would need approval from the university and would need to “clearly” indicate the law school and university were not affiliated with the action.

The brief, filed Aug. 3, 2020, in the federal district court of appeals in Atlanta, was signed by 93 professors from across the country. Only four did not have their names affiliated with their university: UF professors Nunn, Sarah K. Wolking, Teresa Jean Reid and Mark Fenster.

On July 10, 2020, Nunn sent an email to the law school dean, Rosenbury, asking: “Can you inquire whether the university considers participation by any professor in a lawsuit of this kind against the state to be a conflict of interest?”

Rosenbury did not directly answer. Instead, she said: “I have confirmed that the university will approve this activity so long as you participate solely in your individual capacity. You may not participate in your capacity as an employee of the University of Florida or on behalf of the Levin College of Law or the University of Florida.”

The law professors signed the brief, but in a series of footnotes, each is identified as “signing in his[her] personal capacity and any law school or university affiliation is for identification purposes only.”

By contrast, Florida State University professor Mark Schlakman, the only other Florida professor to sign the document, signed the brief and named his school.

Goldhagen, the doctor, said UF’s Conflict of Interest office did not ask whether his expert testimony would be paid or unpaid in the mask mandate case, but said he was never planning on taking money for the work. He also said he had always planned to disassociate himself from the university while working in the case.

Gary Wimsett, UF’s assistant vice president for conflicts of interest, told Goldhagen in an email that because “UF is an extension of the state as a state agency, litigation against the state is adverse to UF’s interests” and therefore, he could not participate in the lawsuit.

When Goldhagen asked how he could appeal the decision, Wimsett responded firmly: “There is no mechanism for appealing disapprovals.”

Goldhagen defied the university and participated in the mask mandate lawsuits anyway. He took part in two cases not by testifying but by filing a declaration as a primary expert in the legal proceedings.

“I went ahead and did it,” he said. “I had never really experienced personal conflict, turmoil, anxiety as I did through that period of time because I’ve never not done what’s in the best interest of children and what’s in the best interest of families.”

Policy timeline

Before the policy change, professors were not required to ask for permission to offer their expertise in outside cases. Expert testimony from academic experts in their fields has long been seen as “a way of translating academic knowledge into practical knowledge for the common good,’’ said George Justice, a professor of English at Arizona State University and an expert on academic freedom issues.

Until recently at UF, professors only had to file a conflict-of-interest report once a year and permission for expert testimony was almost never rejected, several professors told the Times/Herald.

That’s how things worked in 2014, when the state of Florida needed an expert on political science to testify about why the court should uphold its redistricting maps, and it hired University of South Florida political science professor Darryl Paulson.

He was hired to testify in support of the Florida Legislature’s maps in a case in which University of Florida political science professor Dan Smith was hired by the plaintiffs.

The shift in UF’s policy has Paulson and other professors warning that the decision will do irreparable harm to the tradition of using academic expertise in often controversial and pivotal legal cases, even if their testimony embarrasses government officials who write laws and set university budgets.

“Someone has to have the chutzpah and political integrity to say this is not right,’’ Paulson, now retired, said in an interview with the Times/Herald. “Nobody wants to work in a political environment full of fear, and that is what is going to happen at UF if they don’t deal with this. The good professors that you have will look elsewhere for employment, and the young hires won’t see it as conducive to free speech.”

After initially rejecting the professors and providing no explanation, UF has modified its position.

“If the professors wish to testify pro bono on their own time without using university resources, they are free to do so,’’ Fuchs and UF provost Joe Glover wrote in a message to the campus community late Monday. They also said they would convene a task force “to review the university’s conflict of interest policy and examine it for consistency and fidelity.”

However, emails obtained by the Times/Herald show none of the rejected requests indicated that the professors’ service would have to be pro bono.

“How many people hire an expert and then ask them well, you really don’t expect to be paid for your services? We expect that for a reason,’’ Paulson said. “Most universities are delighted that their faculty members are in demand and highly respected for the information that they possess.”

Justice, the academic freedoms expert, said UF’s pivot to suggesting that the professors can testify as long as they don’t get paid was “a face-saving measure” aimed at influencing public perception.

“Because when they tell the public that these overpaid, lazy professors are getting extra money for testifying against our elected representatives, that plays into a stereotype of pampered academic who barely teaches their classes and goes off and moonlights for extra money on the side,’’ he said.

He added that because “anybody in higher education can see through that,’’ they may not “think it would ever happen to them.” But what could cause long-term damage is the perception that university officials meddle in academic expression on issues such as public health, voter suppression, redistricting and related issues.

“What would bother me is the sense that the university’s president and administration, and not only in this instance but in previous instances as well, particularly over the coronavirus issues, university administration kowtows to a Trumpian governor,’’ Justice said. “That would give me potential pause if I were coming from a university where that didn’t seem to be the issue.”

Tightening grip

For the past year, university faculty have chafed at what they say has been an increasing injection of politics into academic life.

“A lot of faculty just do their work and burrow down in their own little bubble. But the whole COVID thing brought to light how much the university has been co-opted by state politics,” said Mark Hosteler, a professor at UF’s Department of Wildlife Ecology and Conservation.

For instance, medical experts from the University of Florida were the ones who recommended a mask mandate for Alachua County Public Schools.

The advice was at odds with the DeSantis administration, which has moved to punish local school districts that impose mask mandates.

Charles Gallagher, the lead attorney in the case challenging the mask mandate ban on behalf of parents, said Goldhagen was not the only Florida academic scholar who had trouble participating in the case.

“We found great difficulty in finding medical institutions, some affiliated with state universities, that would allow their doctors to serve as experts in our school mask case against the governor and education commissioner,” Gallagher said. “In the end, the lion’s share of our medical experts came from non-Florida university affiliated medical institutions.”

Paulson said that the conflict of interest policy emerged not to regulate faculty members who were providing expert testimony, but to prevent “individuals who started up their own consulting business and they were looking out to improve their own economic interest and not really representing anyone else but themselves.”

According to the UF policy, a conflict of interest can occur “when a university employee’s financial, professional, commercial or personal interests or activities outside of the university affects, or appears to affect, their professional judgment or obligations to the university.”

Justice points to the American Association of University Professors’ 80-year-old statement that is still in use today. It states that research done for “pecuniary return” — that is, in exchange for money — “should be based upon an understanding with the authorities of the institution.”

UF is now trying “to avoid accusations of exercising prior restraint” or censorship, he said, and warns it is a “big threat” to academic freedom.

“It would be a high bar for the University of Florida to jump over to claim that these faculty members would be violating their commitment to their research and their students by offering their expert testimony for this particular case,” he said.

Paulson is a former Republican who was a pivotal player in the 1992 redistricting fight when he was hired by the NAACP to testify against the Democrats, who then controlled the Legislature. The NAACP, working with the Republican Party of Florida, prevailed in that case, and the court drew three majority-minority congressional districts that set the stage for three decades of GOP control of the Legislature.

Although Paulson’s testimony contradicted that of the party that controlled state government, university officials did not require him to testify for free, he said. They instead sent him notes of commendation “thanking me for my service and the prestige that was accruing to the campus. It was all positive.”

On Monday, Paulson sent a note to Smith and Michael McDonald, two of the UF political science professors at the center of the controversy.

“I told them, ‘Keep fighting the good fight,’’’ he said.

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