PRISCILLA RUIZ—In 2021, the University of Florida (“UF”) caused a controversy over an issue that affects public universities nationally: Can public universities bar professors from testifying against the state that funds them, or does such an act violate the First Amendment and principles of academic freedom? UF entered the new year continuing to make headlines after a federal judge answered this question. On January 21, 2022, Judge Mark E. Walker of the U.S. District Court for the Northern District of Florida, in a passionate seventy-four-page order, ordered the public University to allow three professors to testify as experts against the state of Florida––despite the University’s protests.
The Order arises from a lawsuit showcasing the tensions between state politics and public universities. In 2020, UF issued a conflicts of interest policy that requires all UF faculty to file a request before participating in any “outside activities.” Pursuant to the policy, three University professors requested permission to testify as expert witnesses in a voting rights lawsuit against Florida Senate Bill (SB) 90, and they were denied permission to do so. After facing national scrutiny over the prohibition, the University gave in and allowed the professors to testify. Still enraged by the implications of the policy, however, the professors filed a lawsuit against UF in late 2021, claiming the University’s policy infringed on the professors’ First Amendment rights to freedom of speech. In response, the public University argued that the professors’ requests to testify were an “impermissible conflict of interest.” As they phrase it, because “UF is a state actor, litigation against the state is adverse to UF’s interests.”
Judge Walker certainly did not see it that way. In his strongly-worded Order, he wrote, “UF has bowed to perceived pressure from Florida’s political leaders and has sanctioned the unconstitutional suppression of ideas out of favor with Florida’s ruling party.” Calling professors “priests of our democracy,” the judge explained that the University blatantly violated the Constitution and described its legal arguments as “shocking.” He even went as far as comparing the University’s actions to those of Hong Kong universities, which are dominated by the Chinese government.
The Order sheds light on a potential national crisis—political control via censorship of public universities. Public universities rely on states for funding; thus, the relationship their administrators maintain with the respective state political leaders matters to their overall performance. However, if universities rely too heavily on these relationships, as seems to be the case with UF, they become “more vulnerable to manipulation by strong-armed officials pushing a patently partisan political agenda.” Ultimately, by avoiding displeasing those in power, public universities become political vehicles for the respective state’s dominant political party. If UF’s policy would have stood, then, it would have increased the risk that other public universities would “join Florida on the slippery slope toward government control of our academic institutions.”
Nonetheless, the practical consequences of public universities completely ignoring the political interests of states’ dominant political party—as Judge Walker’s order suggests—may also be problematic. As state institutions, public universities must regularly work with state governors and legislators on important matters, as state governments are responsible for funding, organizing, and regulating public university systems. Allowing university faculty to challenge state policy created by these same political powers would, to some degree, damage that working relationship. While, in theory, state political leaders should not use public universities as political means, a tarnished relationship between a public university and a state’s ruling party could tremendously impact the public university. State legislatures could threaten to cut funding or propose unfavorable legislation as a political tactic against the uncooperative university. It would not be the first time.
Despite the complexity of the national issue, Judge Walker’s Order takes a blaring stance. It sends a clear message to public universities: You must “honor the constitutional principles that make the college campus a pillar of a free society”—even if it does not protect your bottom line. The Order affirmed the independence of public universities and the rights of faculty to share their expertise with the public without political interference.
In addition to sending a warning to public universities, the Order prompts an important thought: Can other public institutions limiting public employees from testifying as experts against the state that funds them be held to the same constitutional standard as universities? The free flow of ideas on and from universities is essential to the higher education system and our democracy. As the United States Supreme Court explained in 1957, “to impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” However, the same may not be said for other public institutions, like government-funded libraries, where freedom of discourse does not play as significant a role in its system or our society at large. So, it will be interesting to see the effect, if any, an opinion like Judge Walker’s would have on other public spaces and the response of public universities moving forward.
