UF Is Tested On Academic Freedom And Fails

One of the opportunities that make academic scholarship and expertise rewarding is to be in a position to testify as to the subject you spent your career studying. When a case involving voting rights as a result of a law passed in Florida, signed by Governor DeSantis, needed experts on behalf of those challenging the law, the plaintiffs turned to three professors at University of Florida.

Cool, right? Not as it turned out for either UF or the three profs.

Three University of Florida professors have been barred from assisting plaintiffs in a lawsuit to overturn the state’s new law restricting voting rights, lawyers said in a federal court filing on Friday. The ban is an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.

Ordinarily, there would be no question but that the profs had the right to speak out, to opine, to testify, in such a case, both as a matter of academic freedom as well as their First Amendment Free Speech rights. And, indeed, academics do this regularly without incident. But this time, UF said “nope.”

University officials told the three that because the school was a state institution, participating in a lawsuit against the state “is adverse to U.F.’s interests” and could not be permitted. In their filing, the lawyers sought to question Gov. Ron DeSantis, a Republican, on whether he was involved in the decision.

The circumstances are somewhat unique in that the profs work for a school whose budget relies on the largesse of the state, and they fear that the testimony, adverse to the governor’s political interests, will give rise to financial retaliation. These are not frivolous fears. As employees of UF, they were caught in the middle of a conflict between academic freedom and their employer’s financial interests.

UF contends that this isn’t a matter of academic freedom, as they’re not refusing to allow their profs to testify per se, but merely not to testify when it directly implicates their employer’s funding.

A spokeswoman for the university, Hessy Fernandez, defended the prohibitions, saying in a statement that the school “has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so.”

She added: “The university did not deny the First Amendment rights or academic freedom” of the professors, she said. “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.”

It’s fine to support academic freedom and free speech when there’s no price tag involved, but the argument that this isn’t a denial of free speech or academic freedom because this time it might create a risk of adverse consequences is where rights are tested. The obvious analogy is the ACLU, supporting free speech as long as it’s speech they like or speech by favored people, but rejecting free speech when it runs counter to their newfound woke interests. If you don’t support free speech when there’s risk of adverse consequences, you don’t support free speech.

An author of two books on academic freedom, Henry Reichman, called the state’s new restrictions “crazy.”

“The whole purpose of a university and academic freedom is to allow scholars free rein to conduct research,” said Mr. Reichman, a professor emeritus of history at California State University, East Bay. “The ultimate logic of this is that you can be an expert in the United States, except in the state where you’re actually working and being paid by the state.”

The problem with this logical argument is that it doesn’t prevent the plaintiffs from obtaining experts to testify for their cause, as there are academics in the employ of colleges and universities across the country whose budgets are beyond DeSantis’ reach. If the worst problem that arose here was that employees couldn’t testify when it might harm their employer’s interests, that wouldn’t be a deal breaker. After all, they cash their employer’s paychecks and have a duty not to bite the hand that feeds them.

But that isn’t really the argument here, that an expert is free to testify with the caveat that he not do so at the expense of his employer. Rather, the far more principled argument is that UF is a university, not a political wing of the state whose mission is to protect the feelings of the governor from being tweaked by disagreement with his agenda.

Robert C. Post, a Yale Law School professor and expert on academic freedom and the First Amendment, said he knew of no other case in which a university had imposed prior restraint on a professor’s ability to speak.

“The university does not exist to protect the governor,” he said. “It exists to serve the public. It is an independent institution to serve the public good, and nothing could be more to the public good than a professor telling the truth to the public under oath.”

If DeSantis took the position that the earth is flat, would UF adjust its science curriculum accordingly, telling its professors not to speak of a sphere lest it piss off the governor? Even though UF is a state institution and dependent on the state for funding, it remains a university, an institution of higher education with an academic mission independent of whatever political agenda a governor might pursue from time to time.

It’s always possible for state schools to find themselves in positions where academic freedom and free speech will give rise to political anger, from legislatures passing laws telling them what to teach or what not to teach, or what students to favor or not to favor. When they’re laws, the schools may be left without an option but to comply.

But here, there is no law involved, merely a fear that profs testifying honestly will give rise to retaliation by the state and the governor. The choice is entirely up to UF whether to stand for free speech and academic freedom because it could carry adverse consequences. This is how rights are tested.

15 thoughts on “UF Is Tested On Academic Freedom And Fails

  1. Jonathan Arking

    You hit the nail on the head. UF’s argument completely perverts the nature of the relationship between an institution of higher learning and the state that supports (and benefits from) it. A troubling decision if it were to become precedent.

  2. Bryan Burroughs

    Good to see the Republicans’ authoritarian tendencies continue, even without Darth Cheeto. Seems like there’s no one at this point to stand up for academic freedom.

    1. Pedantic Grammar Police

      Bipartisanship at its best! Both sides agree that free speech is only allowed for their side.

  3. Hunting Guy

    Just how committed are the professors to free speech?

    They could always quit their jobs and testify. That would actually give them some additional cachet among their peers.

    People that make a lot less than college professors are standing on principle and quitting their jobs over being forced to get vaccinated.

    1. SHG Post author

      That’s not an entirely unfair point, although it doesn’t have anything to do with the primary problem of UF’s impairing academic freedom. Then again, has anyone quit their job for not being vaccinated as a matter of academic freedom as opposed to personal health concerns? If not, the analogy fails.

    2. Jeff Gamso

      Or, of course, they could just go ahead and testify and see what happens. What exactly happens then? Do they get sacked? Even if they’re not tenured, it’d be damned hard, I think, to make the firing stand up.

      Or, I supposed, they could be subpoenaed. Then what happens if they refuse? Contempt? Lock ’em up?

      So many possibilities, so little time.

      1. LocoYokel

        If you’re subpoenaed can you charge for your testimony? Would they still get paid? I might be wrong but I’ll bet they don’t believe in the cause enough to speak for free, especially under whatever theoretical threat to their job exists.

  4. MIKE GUENTHER

    Perhaps I misread your post, but it seems like the prawfs expect to be paid by the state (university) for their “expertise.” Couldn’t they testify without recompense? If it’s so important to them, do it pro bono.

    Or maybe I’m missing something. Wouldn’t be the first time.

  5. SamS

    The key sentence in this post is the quote from Hessy Fernandez. “The university denied requests by these full time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.” This has less to do with academic freedom and the first amendment than it does with contracts and contract law. If the professors’ contracts state that outside work must be approved, then they have no reason to complain when the employer follows the contract. They read the contract, signed the contract and benefited from the contract and now they have to accept the limitations of the contract. If they didn’t like the contract, don’t sign it.

  6. Eric Goetschalckx

    Robert Post is a liar.

    “[Robert C. Post] said he knew of no other case in which a university had imposed prior restraint on a professor’s ability to speak.”

    Professors are routinely restrained from speaking by their employer during Title IX inquisitions, whether they are the inquisitors, the complainant, or the defendant, and all ivy league professors know this because it is part of their training.

    As a liar, all other statements he makes can be discarded.

    If instead he actually believes this statement then he is not an “expert on … the First Amendment” because he is unaware of all the times and ways universities have exercised prior restraint on faculty speech, meaning his statements can likewise be discarded as he lacks “expertise.”

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