University of Florida prohibits professors from testifying in voting rights suit

The University of Florida’s decision prohibiting their testimony in a state voting rights case is decried as a threat to academic freedom.
Century Tower sits at the heart of the University of Florida campus in Gainesville.
Century Tower sits at the heart of the University of Florida campus in Gainesville. [ University of Florida ]
Published Oct. 30, 2021|Updated Oct. 30, 2021

In a decision that could have far-reaching free speech implications for faculty at universities and colleges across Florida, the University of Florida has refused to allow three political science professors to continue to serve as expert witnesses in a case that challenges a new state law restricting voting access.

Political Science professors Daniel Smith, Michael McDonald and Sharon Austin, two of whom have previously served as expert witnesses in cases against the state, were told in emails this month that their requests to serve as experts would now be rejected. They were seeking permission to testify in the case challenging Senate Bill 90, passed by Florida’s GOP-controlled Legislature in the wake of the 2020 election.

“Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida,’’ wrote David Richardson, dean of UF’s college of arts and sciences in response to Smith’s request.

Smith is the chair of UF’s political science department, McDonald is a national expert on elections and Austin studies African American political behavior.

Gary Wimsett, UF’s assistant vice president for conflicts of interest, provided a similar response to McDonald and Austin.

“UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests,” Wimsett’s rejection to McDonald and Austin read. “As UF is a state actor, litigation against the state is adverse to UF’s interests.”

Paul Donnelly, a lawyer for the professors, called the UF decision “retaliatory” behavior that “strikes at the very heart of academic freedom” and impinges on their free speech rights.

“It is a profound, chilling, frightening change in policy,’’ Donnelly said. “What would happen if another party was in control and could engage in this kind of censorship?”

Donnelly said the plaintiffs’ lawyers in the voting rights case brought by Florida Rising and other voting rights groups raised their concerns in a document filed Friday with the U.S. District Court for the Northern District of Florida.

He said he hopes the federal judge will address their concerns and that UF would change its position, but if it doesn’t they will consider filing a lawsuit in federal court, arguing that academic freedom and First Amendment rights are being violated, and would seek a preliminary injunction.

In a statement released to the Times/Herald by UF’s vice president for communications, Steve Orlando, the school denied infringing on the free speech rights of the professors.

“The University of Florida has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so.

“It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.”

The governor’s office did not immediately reply to a request for comment.

In an Oct. 13 letter to Wimsett, ACLU lawyer Daniel Tilley told the university that “there is no question that Dr. Smith would be speaking in his capacity as a private citizen, not as an employee of the University.” Tilley also argued that Smith should be allowed to testify because the issue is one of great public concern.

“Principles of academic freedom significantly reduce the scope of the government’s legitimate prerogative to police professors’ speech on matters of public concern,’’ he wrote.

The United Faculty of Florida, the union representing 25,000 higher education professionals, condemned the decision in an email to university officials on Tuesday, and again in a statement released after a story about it was first published late Friday by the New York Times.

“We stand with our members and their duty to share their expertise for the public good,’’ the union said in a news release. “We stand with all Floridians and their right to criticize their government.”

Austin, a tenured professor, said black females like her make up only 2 percent of full professors nationwide and she will fight for the right to speak up. She urged UF to “not cave into pressure from outside statewide forces.”

“A Southern Black woman who is not fighting for voting rights is a sell-out to her community,” Austin said in the news release from the union. “I refuse to teach my students that it is important to fight for voting and civil rights and then not fight for those rights myself.”

Smith also vowed to fight.

“We will not back down from this attack on our First Amendment rights to speak out on our own time, on matters of great public importance,” he said in a news release.

The professors have offered expert testimony in many lawsuits and Smith and McDonald have also provided expertise in previous cases against the State of Florida.

A week before McDonald was denied his request to serve as an expert, Smith, who is chairperson of the Department of Political Science at the University of Florida, and McDonald, a redistricting expert who also is a professor in the department, wrote an op-ed published in the Tampa Bay Times accusing Republican leaders of using outside contracts to intentionally shield redistricting data and mapping details from the public.

Legislators vigorously denied the allegations and asked that the column be retracted.

Donnelly now says the timing of what he considers retaliation is significant.

“When someone engages in First Amendment-protected activity, like the professors did with the op-ed piece or they did with their testimony, if unconstitutional action is taken by the government in proximity to that, that’s evidence of violation of constitutional rights,’’ he said.

Smith originally was told he could no longer participate as an expert witness in July, according to the correspondence included in documents filed in the federal court. But the denials for McDonald and Austin came after the op-ed.

Senate Bill 90 made changes to the state’s elections laws, such as limiting the use of ballot drop boxes and prohibiting people from possessing more than two vote-by-mail ballots, which already was illegal in Miami-Dade County.

The plaintiffs in the case argue the law is unconstitutional and designed to suppress voting by minorities. Last week, the state asked a federal judge to block subpoenas that would require seven Republican legislators and a representative of DeSantis’ office to testify about their roles in creating the law. The governor’s office claimed that executive privilege prevented his office from testifying.

Smith has been the most prolific of the three professors in his work with experts challenging the Republican-controlled state government.

He was a key figure in the litigation surrounding Amendment 4, the constitutional amendment Floridians passed in 2018 allowing nearly all people with felony convictions the right to vote, provided they completed “all terms” of their sentence.

Initially hailed as one of the nation’s greatest expansion of civil rights in decades, it was scaled back when the state Legislature, at DeSantis’ insistence, passed a law sharply defining “all terms” of sentence by requiring felons pay all court debts before being able to vote.

The American Civil Liberties Union and other groups sued, claiming the bill was unconstitutional. The ACLU hired Smith to study the effects of the bill and he assembled the most comprehensive known database on Florida felons and concluded that nearly 80 percent of them would be unable to vote because they owed court fees, fines or restitution to victims. Most owed more than $1,000, an amount out of reach for people who already have trouble finding work after having been convicted of a felony.

“The deck is stacked against them,” Smith testified.

A federal judge in Tallahassee sided against the state, but the decision was overturned by an appellate court in Atlanta.

Prior to the 2020 election, Smith served as an expert on mail-in ballots, and in a lawsuit that forced the state to provide Spanish-language ballots to Hispanic voters. He provided a written report for the League of Women Voters to extend early voting in Florida and testified against UF in a case that resulted in overturning a ban on early-voting locations places on Florida university campuses.

From 2012-14, Smith provided analysis and testimony in the redistricting lawsuit brought by the League of Women Voters and other plaintiffs.

Donnelly said he has worked with University Florida faculty as expert witnesses for three decades. He said the work has always been encouraged by the university and has been a way for faculty to augment their salaries.

“At the University of Florida, it brings the university more fame and respect and these are faculty working for public institutions, so the pay is generally not comparable to private institutions,’’ he said. “So it has been routinely encouraged.”