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.
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