UF professors could testify in voting rights case if they are unpaid, spokeswoman says

Danielle Ivanov
The Gainesville Sun
  • The University of Florida would allow three professors to serve as expert witnesses in a case that challenges a new state law restricting voting access if they are not paid and don't use university time or resources, a UF spokeswoman said.
  • Hessy Fernandez, UF director of issues management and crisis communications, told the Gainesville Sun in a text message Sunday the university views the professors' request to do outside work for the plaintiffs in the lawsuit as harmful to the university's interests.
  • That allowance for unpaid work was not mentioned earlier when Gary Wimsett, UF’s assistant vice president for conflicts of interest, told two of the professors that “UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests.”

The University of Florida would allow three professors to serve as expert witnesses in a case that challenges a new state law restricting voting access if they are not paid and don't use university time or resources, a UF spokeswoman said Sunday, adding confusion to a move that could have far-reaching impacts on academic freedom.

Hessy Fernandez, UF director of issues management and crisis communications, told the Gainesville Sun in a text message Sunday the university views the professors' request to do outside work for the plaintiffs in the lawsuit as harmful to the university's interests. "However, to be clear," she stated, "if the professors wish to do so pro bono on their own time without using university resources, they would be free to do so."

Previously:University of Florida professors prohibited from testifying in voting rights lawsuit

That allowance for unpaid work was not mentioned earlier when Gary Wimsett, UF’s assistant vice president for conflicts of interest, told two of the professors that “UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests.”

Wimsett's statement does reflect a view the UF President Kent Fuchs expressed at a September Faculty Senate meeting. When the issue of a vote of no confidence in UF's COVID-19 fall plans arose, Fuchs reminded the group that the state government has authority over almost all areas of the university's operation.

"It is critical that UF as an institution and any entity within the institution that officially represents the University of Florida not rupture or fracture our relationship with our state government and our elected officials," he said. "If I as president or any other entity that officially represents the university becomes an adversary of state government and our elected officials, we'll lose that ability to influence those decisions that affect us."

Fuchs did note academic freedom as an example of one area where the state typically defers to university leadership and faculty.

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Blocking the professors from serving as paid expert witnesses has raised concerns

Blocking the professors from serving as paid expert witnesses has raised concerns over academic freedom and the professors' First Amendment rights. It also highlights another facet of ongoing tension between university faculty and the higher education institution's ties to state government.

The professors, department chair Daniel Smith, nationally renowned election expert Michael McDonald and African American political behavior expert Sharon Austin, were denied their requests to testify on Oct. 11, 13 and 15, respectively, by David Richardson, dean of the College of Liberal Arts and Sciences, and Wimset.

On Sunday, Smith said, he has previously served as an expert in federal voting rights lawsuits against the state.

"Over the past decade, I have been asked numerous times by plaintiffs to serve an expert in federal lawsuits dealing with voting rights. The defendants have included the Governor and the Secretary of State," he wrote in an email to The Sun on Sunday.

"These approved outside activities, for which I am paid for my expertise, are on my own time. I am clearly speaking for myself, not UF, and Tigert Hall has never before disapproved of my involvement in these cases. Quite the contrary, they have publicly celebrated my (and my colleagues’) involvement in these outside activities that are of great public import and that bring national recognition to UF," he said.

In another email Sunday, Austin told the Sun, "As a UF employee for 20 years, I am very disappointed by this decision. There is no conflict of interest here. This is clearly a violation of my constitutional rights."

The lawsuit, led by Florida Rising Together and other voting rights organizations, challenges Florida's Senate Bill 90, which was passed and enacted following the 2020 elections and placed strict regulations on voting by mail and drop box in the state. The plaintiffs claim, in part, that the new law limits voting access.

In their Friday filing, lawyers for Florida Rising Together questioned whether Gov. Ron DeSantis' office was involved in UF's decision to deny the professors' requests.

"Plaintiffs are legitimately concerned that prosecution of this litigation may be impeded by the efforts of “the executive branch of the State of Florida” to prevent testimony from or intimidate Plaintiffs’ experts on key issues," it stated.

Christina Pushaw, press secretary for the Executive Office of the Governor, wrote in an email Monday that UF's policy regarding conflicts of interest was last updated a year ago, before Senate Bill 90. 

"So the university’s policy could not possibly have been a reaction to this lawsuit," she said. "The Governor’s Office did not make UF’s policy, and there is zero evidence to suggest otherwise."

University response

In a statement published online Saturday, the university defended its position and wrote that it has not denied First Amendment rights or academic freedom to Smith, McDonald and Austin.

"The University of Florida has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so," the statement read. "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."

McDonald, prompted by questions on Twitter, posted a picture Saturday of the initial disapproval message sent by UF showing that the conflict of interest, not the money, was the reason behind the denial.

"Our compensation was not given as a reason in the original disapproval from UF. That is new language the university added in its PR statement," he wrote.

UF faculty push back

Leaders from the United Faculty of Florida, a statewide union, and its UF chapter have written to the university in the past week speaking out against the request denials.

"These assertions that the interests and mission of the university are somehow equivalent with those of the current executive branch of the State of Florida are indefensible. They undermine the university’s adherence to principles of academic freedom and the constitutional rights of UF’s faculty, staff, and students," wrote UFF President Andrew Gothard and Executive Director Candi Churchill in a Friday email to Fuchs.

Paul Ortiz, president of the UFF-UF chapter, wrote in his own email Tuesday that the union believes the request denials violated several articles of its 2021-24 Collective Bargaining Agreement with the university.

"Rest assured that we will take all necessary legal measures to protect our rights and liberties as public higher education faculty to serve the public good and to bring the University of Florida back into compliance with our Collective Bargaining Agreement," he stated.

Many UF graduates and employees have taken to social media to express their concerns, including two of the three restricted professors, Austin and McDonald.

Austin wrote Saturday that, "We must support academic freedom no matter what the consequences are."

McDonald also wrote a sarcastic Halloween post Sunday on Twitter, saying, "Last minute costume change this year: I’m going as an academic exercising their free speech. Very scary to some folks, apparently."

Nikki Fried, state Agriculture Commissioner, posted on Twitter, "I love @UF — I'm a former student body President, member of the Board of Trustees, & now Law School Trustee. But when they come for our First Amendment, it's on the Gator Nation to stand up & fight." The post drew almost 3,500 likes in under 20 hours.

The commissioner, who is challenging DeSantis in the 2022 race for governor, ended her call to action with a famous song lyric by Gainesville native Tom Petty that is traditionally played at UF football games.

"Together we are an unstoppable force for good. And we 'won't back down,'" she said.