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UF report calls for a 'strong presumption' that professors can testify in cases involving the state

Kent Fuchs, the president of the University of Florida, delivers comments during a ceremony in Gainesville, Fla., on Sept. 15.
Kent Fuchs, the president of the University of Florida, delivers comments during a ceremony in Gainesville, Fla., on Sept. 15.

After an outcry about the school blocking professors from testifying in a challenge to a controversial elections law, University of Florida President Kent Fuchs has approved a report that calls for a "strong presumption" that faculty members will be able to serve as expert witnesses in lawsuits involving the state.

Also, in a separate report to an accrediting organization, UF denied that its Board of Trustees or outside people played a role in decisions to prevent three political-science professors from testifying against the elections law, which was passed by the Republican-controlled Legislature this spring and signed by Gov. Ron DeSantis.

“The University of Florida Board of Trustees ensures that the institution is free from undue influence by external persons or bodies through clear and consistently enforced policies and procedures,” said the report to the Southern Association of Colleges and Schools Commission on Colleges.

UF released the reports about 5 p.m. Tuesday, after Fuchs signed off on recommendations finalized Monday by a seven-member task force. The task force was created after national headlines about the decision to block the political science professors from serving as expert witnesses in the elections-law case.

The university ultimately walked back the decision to prevent the professors from testifying. But those professors, Sharon Austin, Michael McDonald and Daniel Smith, and three others have filed a federal lawsuit alleging violations of First Amendment rights.

Attorneys for the professors issued a statement Tuesday that criticized the task-force recommendations.

“We are disappointed but not surprised that a task force created as a public relations tool has returned with window-dressing recommendations,” attorneys David A. O’Neil and Paul Donnelly said in the statement. “The proposed changes address only the narrow issue of expert testimony, and even on that limited topic, they fail to cure the constitutional problem with the university’s conflict of interest policy. That policy still allows the university to restrain the faculty’s free speech based on impermissible reasons and in the university’s discretion. We will continue to press the university to make the real change that the Constitution requires.”

Fuchs announced the members of the task force on Nov. 5, with Provost Joe Glover serving as chairman. In part, the task-force report calls for:

  • Establishing “a strong presumption that the university will approve faculty or staff requests to testify as expert witnesses, in their capacities as private citizens, in all litigation in which the state of Florida is a party, regardless of the viewpoint of the faculty or staff member’s testimony and regardless of whether the faculty or staff member is compensated for such testimony. This presumption is particularly important in cases that challenge the constitutionality, legality or application of a Florida law.”
  • Imposing a “heavy burden” on overcoming the presumption that faculty members will be able to testify in cases involving the state. The report said requests to testify should “be denied only when clear and convincing evidence establishes that such testimony would conflict with an important and particularized interest of the university, which the university must set forth and explain in writing.”
  • Preserving the university’s ability to deny requests to serve as expert witnesses when “those requests, along with other outside activities, would cumulatively amount to a conflict of commitment.”
  • Setting up an appeal process for denials of requests to testify.

The university faced an outcry after Austin, McDonald and Smith were denied permission to serve as witnesses for groups challenging the elections law, which includes changes to voting by mail. The law was one of the most-controversial issues of the 2021 legislative session, with critics arguing it will make it harder for Black and Hispanic voters to cast ballots.

According to court records, the university told the professors that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict” for the university.

After the denial drew widespread attention, Fuchs announced that the professors would be allowed to be paid to testify if they did so on their own time and did not use university resources.

Media attention about the denial also prompted the Southern Association of Colleges and Schools Commission on Colleges to ask UF for an explanation of the initial denial.

Among other things, UF has faced questions about whether it made the decision because of political pressure. But in the report Tuesday to the accrediting organization commonly known as SACS, the university denied that its decision stemmed from trustees or other outside players.

“The decisions that have led to the media reports were all made internally,” the report said. “The university’s established governing board, the Board of Trustees, was not involved in the decision-making process in any way, and entities and/or individuals outside the university’s established governing system had no effect on the recently reported institutional action.”

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