UF’s ban on professors testifying against state to be investigated, says accreditor

The accreditor said she will be seeking information about a decision that blocked three professors from testifying in a case that challenges the state’s new voting-rights law pushed by Gov. Ron DeSantis.
The University of Florida campus.
The University of Florida campus.
Published Nov. 1, 2021|Updated Nov. 2, 2021

TALLAHASSEE — The body that sets the accreditation for the University of Florida said Monday it will be investigating the state’s flagship university over its decision to bar a trio of faculty members from offering expert testimony in a legal case against the state, to determine whether “academic freedom” and “undue political influence” standards were violated.

The public university said it blocked three professors from continuing to serve as expert witnesses in a case that challenges the state’s new voting-rights law because their testimony could pose a “conflict of interest to the executive branch of the State of Florida and create a conflict for the University of Florida.”

Belle S. Wheelan, the president of UF’s accrediting body, Southern Association of Colleges and Schools’ Commission on Colleges, said the decision may place the university’s actions in violation of “undue political influence” and “academic freedom” accrediting standards.

“Those are the two that we are going to be looking into. If we find something else, we can always look into them as well,” Wheelan said in an interview with the Times/Herald on Monday.

Late Monday, in an email to the campus community, Fuchs and UF Provost Joe Glover announced they were “immediately appointing a task force to review the university’s conflict of interest policy and examine it for consistency and fidelity.”

The officials continued to stand by their decision and denied they were violating the professors’ right to free speech and academic freedom, but Fuchs and Glover provided one detail they previously had not presented to the professors when they rejected their request to offer expert testimony.

“If the professors wish to testify pro bono on their own time without using university resources, they are free to do so,’’ the UF leaders wrote.

This is the second attempt by the university officials to clarify their position. Over the weekend, UF spokesman Steve Orlando also defended the decision.

The investigation was triggered by news reports that put a spotlight on UF’s decision over the weekend, Wheeler said. Since then, the university has defended its actions, the governor’s office has denied involvement, and a group of faculty members from across the country and the United Kingdom have issued a public letter supporting the three UF faculty members and urging UF to reverse course on its decision.

At the center of the firestorm is a conflict-of-interest policy that the university cited when it blocked the three faculty members — political science professors Daniel Smith, Michael McDonald and Sharon Austin — from testifying in the case.

“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.

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Now, UF President Kent Fuchs will be asked to provide more details about the university’s decision to the accrediting body to determine whether the university violated the “academic freedom” and “undue political influence” standards.

Findings on the matter are expected no later than June 2022, Wheelan said. Once that happens, the university could face no action, a warning, be further monitored, placed on probation or lose its accreditation.

The accreditor’s inquiry was first reported by The Chronicle of Higher Education. UF did not immediately respond to requests seeking comment on the investigation Monday.

But over the weekend, UF defended its decision in a statement.

“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,” Orlando said in a statement.

‘Adverse to UF’s interests’

The professors had sought approval to participate in the cases as expert witnesses, a routine request that Smith and McDonald had been given permission to do in previous election and redistricting cases involving litigation against the State of Florida.

This time, however, Smith was told in July and McDonald and Austin were told in October that they could not offer expert testimony because the university considers itself “a state actor” and “litigation against the state is adverse to UF’s interests.”

That position, however, puts the university squarely at odds with the role political science experts traditionally play in election-related litigation, said 41 professors from across the country and the United Kingdom in a letter of support of Smith, McDonald and Austin, and urged UF to reverse its decision.

“This is not only a serious violation of academic freedom and faculty speech rights, but also a fundamental misunderstanding of the role of expert witnesses in election-related litigation,’’ the professors wrote.

The professors said they have all served as expert witnesses on election administration, voting rights, redistricting, campaign finance and similar cases, with some working on behalf of the state position and others against it.

They said expert witnesses “are not advocates, nor do they argue in favor of any particular legal position” but instead “provide answers to specific questions based on data, reliable methodologies, experience, and technical knowledge.

“Their role is to provide information and empirical answers to courts so that judges have the best information available as they evaluate legal arguments,’’ the professors wrote. They also argued that because “the university is not a defendant in this litigation, it cannot claim that its interests are adversely affected by the professors’ engagement.”

The professors warned that by taking the position that faculty must act in a way that does not affect the interests of a funder of the university, “the university has transformed academic freedom — the right to conduct research and teaching without political interference — into something that faculty have so long as their work meets with the approval and policy goals of state political leaders or influential university donors.”

The state university system’s Board of Governors Chair Syd Kitson and Chancellor Marshall Criser III declined to be interviewed or comment on the matter. Criser’s father was president of UF from 1984 to 1989.

DeSantis denies involvement

In a statement released Monday morning, Gov. Ron DeSantis’ office defended the university and denied being behind the university’s decision to block the faculty members from testifying against the state.

“The fact remains that all public universities, including UF, have policies around situations where conflicts of interest may arise, including paid testimony in a lawsuit,” DeSantis’ press secretary Christina Pushaw said in a statement.

“The UF policy that requires professors to seek approval for paid outside work to prevent conflicts of interest was established well before SB 90 and the lawsuit; therefore, it could not have been a reaction to this case. The governor’s office did not create UF’s policy on conflicts of interest nor tell UF how to enforce it,” she added.

After the UF policy was in place, Smith said he had received approval from the university to serve as an expert witness in voting rights cases in Florida and Texas, documents provided to the Times/Herald show. He also served as an expert witness in several cases involving state interests that did not draw university objections.

Smith’s prior efforts include:

▪ Work with the ACLU to study the effects of the Legislature’s bill limiting the effects of the constitutional amendment related to expansion of felons’ voting rights.

▪ Work as an expert on mail-in ballots.

▪ Work on the lawsuit that forced the state to provide Spanish-language ballots to voters.

▪ A report for the League of Women Voters to extend early voting in Florida.

▪ Testimony in a case against UF that resulted in overturning a ban on early polling places on Florida university campuses.

El Nuevo Herald staff writer Jimena Tavel contributed to this report.