BY STEVEN LUBET

Three University of Florida political science professors have sued the university trustees and several officials for violations of the First Amendment and academic freedom, alleging that they had been prevented from “testifying on behalf of voting-rights groups in a lawsuit challenging Florida’s Senate Bill 90 (‘SB 90’).”  In what appeared to be a preemptive move, the university had already rescinded its “do not testify” order before the lawsuit was filed, setting up a potential motion to dismiss the case for mootness.  That stratagem is unlikely to succeed, however, because the effect of the prohibition cannot be so easily undone.

On October 29, the New York Times first reported that the University of Florida had barred three professors from providing expert testimony in litigation challenging the state’s restrictive voting law.  University officials evidently informed the three professors that conflict of interest principles prohibited their testimony because the university is a public institution and litigation against the state was therefore “adverse to U.F.’s interests.”

The uproar was immediate.  Academic leaders across the country denounced virtually every aspect of the prohibition as violating academic freedom, the First Amendment, and relevant provisions of the UF faculty handbook.  The university’s initial response was feeble, insisting that the university had not violated the professors’ academic freedom, but had only “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.”

That answer satisfied precisely nobody, as it was quickly pointed out that the professors proposed to “testify as expert witnesses in their fields on their own time.  Their testimony does not interfere with any of their job duties. There are no conflicts of interest.”

University President Kent Fuchs backed down in stages.  He first stated that the three professors (and presumably several others, who came forward with their own stories) could testify, but only if they did it “pro bono on their own time without using university resources.”  That was incoherent, of course, because the professors had never sought to use university resources.  More importantly, their testimony would still be adverse to the state, and thus a purported conflict of interest under the university’s stated rationale, with or without payment.

When the first concession did not quell the protests, Fuchs relented further, announcing that he had instructed the university’s Conflicts of Interest Office to approve the expert testimony engagements “regardless of personal compensation, assuming the activity is on their own time without using university resources.”  In a further attempt to head off litigation, Fuchs also appointed a task force to “make a recommendation to me on how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party.”

There are a couple of law professors on the task force, who should quickly figure out that Fuchs’s volte face creates problems of its own.  There are only two possible justifications for allowing the previously prohibited testimony.  Either (1) there was never a conflict of interest in the first place, because the University of Florida is not synonymous with the DeSantis administration; or (2) there was indeed an apparent conflict, but it has been waived pending a review of the policy.  Both alternatives spell trouble for President Fuchs.

If the answer is the former – meaning that the university is not an alter ego of the executive branch – then the three professors, and probably others, are owed both an apology and reasonable compensation.  If the answer is the latter – meaning that the university still believes there was a conflict of interest – then Fuchs is not the proper party to grant a waiver (or to direct the Conflict of Interest Office to do so).  In either situation, the lawsuit may proceed.

Recall that the proposed expert testimony was about the state’s new voting legislation and had nothing directly to do with the University of Florida.  Any conflict of interest, therefore, would have been between the professors’ testimony and the interests of the DeSantis administration in defending the law, which was indeed the justification originally offered by the university: “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.”

Thus, under well-accepted conflict of interest principles, only the executive branch – Governor DeSantis or his designate – would have the authority to waive the conflict.  There is no indication that happened.  Fuchs’s order alone would therefore be ineffective, and could not render the lawsuit moot.

The University of Florida has talked itself into a corner, first invoking a bogus conflict of interest to suppress legitimate faculty speech, and then failing to retract it fully and unequivocally.  There is only one more thing the affected faculty members need to say:  We’ll see you in court.

Steven Lubet is Williams Memorial Professor and director of the Bartlit Center for Trial Advocacy at the Northwestern University Pritzker School of Law.