Saying the case is “moot,” University of Florida professors are asking a federal judge to dismiss a lawsuit that challenged a controversial conflict-of-interest policy that gave school administrators discretion over allowing faculty members to serve as expert witnesses in litigation.
The university adopted a revised policy in October that resolved the professors’ concerns, according to a motion filed Wednesday by the plaintiffs.
Tenured political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit last year after university officials denied their requests to serve as witnesses for groups fighting a 2021 state elections law in court. In denying the professors’ requests, university officials said going against the executive branch of the state government was “adverse” to the school’s interests.
In a scathing 74-page ruling in January, Chief U.S. District Judge Mark Walker blocked UF officials from enforcing the policy about professors testifying. Walker’s ruling called the policy “pernicious” and a violation of faculty members’ First Amendment rights. The university filed an appeal that remains pending.
The professors, who were joined by three other faculty members in the lawsuit, argued that the challenged conflict-of-interest policy unconstitutionally discriminated based on viewpoints and content and had a “chilling” effect.
Amid a national spotlight on the policy, University of Florida President Kent Fuchs ultimately allowed the professors to be paid as expert witnesses in the elections lawsuit and hastily assembled a task force to explore the conflict-of-interest issue and offer recommendations. Fuchs signed off on a revised policy stating there is a “strong presumption” that the university will approve faculty or staff requests to testify as expert witnesses.
The university on Oct. 13 adopted another revision to the policy, which now says “viewpoint and content of the employee’s speech or other activity shall not be considered when assessing whether a conflict of interest exists.”
The October version of the policy rectified the professors’ concerns that led to the lawsuit, according to Wednesday’s motion.
“Throughout this litigation, plaintiffs repeatedly emphasized that the relief they sought was a clear and unambiguous commitment by defendants that content and viewpoint could play no role in determining whether a conflict of interest or conflict of commitment existed. Defendants have finally now taken that basic and essential step,” the motion said.
The motion to dismiss the case was filed “without prejudice,” a legal distinction that would leave open the door to pursuing a lawsuit in the future.
While the policy change might have resolved the professors’ expert-witness issues, the motion conveyed simmering tension between the faculty members and the state’s flagship university.
“After protracted litigation, personal attacks on plaintiffs, false declarations of victory, and extensive gamesmanship, the university has issued a new policy that states what all previous policies did not: viewpoint and content can play no role in assessing whether there is a conflict of interest from a faculty member serving as an expert witness,” the 19-page motion said.
The motion said that, under the new policy, requests to engage in expert testimony will be assessed only for a potential “conflict of commitment,” rather than a conflict of interest. Professors generally do not need to seek approval before signing friend-of-the-court briefs in lawsuits and are allowed to state their affiliations with the university in such briefs. The policy also set a 30-day deadline for university officials to act on requests to serve as expert witnesses, which the motion said was a first for UF.
“Plaintiffs have therefore obtained everything they sought in their amended complaint, and the case is now moot,” the motion said.
The legal battle might not be over, however.
The plaintiffs’ lawyers accused the defendants — Fuchs, Provost Joseph Glover and the school’s board of trustees — of refusing to join the motion in an effort to thwart the professors from recovering attorneys’ fees.
The plaintiffs intend to seek recovery “of the significant fees and costs they have incurred vindicating their First Amendment rights,” the motion said. “In a regrettable continuation of their pattern of strategic gamesmanship, defendants have declined to jointly stipulate to the dismissal of this action in an effort to stave off that request.”
UF’s lawyers in December 2021 asked Walker to dismiss the lawsuit, arguing that it was moot because the policy had been changed and the university ultimately authorized the professors’ requests to serve as expert witnesses. The defendants also argued that the professors lacked “standing” to file the legal challenge.
The university’s stance hasn’t changed, according to a statement provided Thursday to The News Service of Florida.
“The University of Florida’s position is, and always has been, that the court does not have jurisdiction over this lawsuit because the plaintiffs do not have standing, the case was moot before it was filed and there are no claims that are ripe for adjudication. Accordingly, the university agrees that the lawsuit should be dismissed but not on the grounds set forth in plaintiffs’ motion,” the statement said.