Federal judge orders injunction to UF’s conflict of interest policy

A judge sides with the professors calling for the end to the university’s conflict of interest review policy.
A look at the University Auditorium at the center of the University of Florida campus is Gainesville.
A look at the University Auditorium at the center of the University of Florida campus is Gainesville. [ University of Florida ]
Published Jan. 21, 2022|Updated Jan. 21, 2022

A federal judge for the Northern District of Florida issued a preliminary injunction Friday to stop the University of Florida’s controversial conflict of interest policy as it pertains to allowing professors to serve as expert witnesses or provide legal consulting.

Judge Mark Walker, a graduate of UF, issued a 74-page order following two heated hearings over the past month. In it, he excoriated the university for its unwillingness to clearly protect free speech.

Walker wrote that UF was “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 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 case came to the court’s attention after six professors sued their employer for being prohibited from serving as expert witnesses or filing amicus briefs in cases against the state. Under a newly implemented review process, the professors were told their actions could be considered against the university’s best interest, leading to a highly publicized controversy over academic freedom and sharp rebukes from academics and politicians alike.

The university launched its own task force for reviewing the policy and made recommendations, which President Kent Fuchs adopted. Still, lawyers for the professor contended that the review process in itself had a chilling impact on speech.

The issue, Walker wrote in his ruling “is not whether UF’s policy chilled Plaintiffs then; the question is whether UF’s policy chills Plaintiffs now.”

“Considering everything that has happened between UF’s initial denials and this case, I credit Plaintiffs’ evidence that they are self-censoring because of UF’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 wrote.

Walker made a comparison to the tale of The Emperor’s New Clothes, where the emperor’s lords, “fearing the loss of their jobs and the Emperor’s good grace, enabled the charade by praising the Emperor’s fine suit.”

He also pointed to the university’s Faculty Senate report that highlighted concerns over self-censorship. He drew attention to the way UF’s attorneys addressed the professors in court — attempting to paint them with “unclean hands” for continuing their work before getting approval.

In an earlier hearing, the university’s attorney, Christopher Bartolomucci, claimed that the revised policy did not give the university unbridled discretion and placed the burden of denial on the university. And he said there was no provision in the revised policy that would allow the university to deny a request just because they thought someone in Tallahassee wouldn’t like it.

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But Walker questioned that, saying the assumption of being able to serve as an expert unless the university objects could actually be a more subjective policy.

In his order, Walker wrote “The Supreme Court of the United States has long regarded teachers, from the primary grades to the university level, as critical to a healthy democracy. Indeed, Justice Frankfurter referred to our teachers as ‘the priests of our democracy.’ As noted above, Plaintiffs’ academic inquiry ‘is necessary to inform political debate’ and ‘is of transcendent value to all of us and not merely to the teachers concerned.’ When such critical inquiry is stifled, democracy suffers.”

He denied, however, the plaintiffs’ requests surrounding the way the university handles amicus brief policies. One professor in the case had been told signing onto an amicus brief against the state could be a conflict of interest and another was told not to use any affiliation with the university. The amicus issue, the judge wrote, was argued by both parties as an afterthought. He said it’s not even clear what the university’s amicus policy is and that the issue may be moot.

David O’Neill, attorney for the professors, said in a statement that the decision was a ”ringing endorsement of the critical importance of faculty free speech and academic freedom.”

“The University may no longer prohibit faculty members from sharing their views with courts and the public just because the ruling political party doesn’t want to hear their truth,” he said in a statement. “The decision sends a clear message to public universities across the country – and to politicians who would try to interfere with them – that they too must honor the constitutional principles that make the college campus a vital engine of a free society.”

UF spokeswoman Hessy Fernandez said the university is reviewing the order and will determine next steps.

A bench trial date has been set for Nov. 7.

Related: UF, seeking status in academia, is blasted by its own faculty leaders

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