University of Florida reverses course, allows professors to testify regardless of compensation 

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Updated at 2:50 p.m.: The article was updated to include a written statement from the professors’ attorneys, David A. O’Neil and Paul Donnelly, that was received after publication.

Amid national controversy, the University of Florida abruptly reversed course Friday to allow three professors to testify as paid, subject-matter experts in a voting rights lawsuit against the state.

The university initially denied requests by political science professors Sharon Austin, Michael McDonald and Daniel Smith. The decision deviated from precedent, contradicting previous work UF has approved. Five other professors in law and medicine have also come forward to say they were barred from speaking as experts in their fields in litigation against the state.

The university’s president, Kent Fuchs, said Friday in a campus-wide email that he was asking the school’s conflict-of-interest office to reverse its decision and permit the testimony. At least one of the professors confirmed that he was subsequently approved to testify.

“While the University of Florida reversed course and allowed our clients to testify in this particular case, the fact remains that the university curtailed their First Amendment rights and academic freedoms, and as long as the university’s policy remains, those rights and freedoms are at risk,” read a statement from the professors’ attorneys, David A. O’Neil and Paul Donnelly.

Fuchs also said that a task force he appointed – of professors and administrators – to provide him with recommendations on the issue would report its findings at the end of the month. 

The university initially said that, because it was a public university and faculty are government employees, it would have been a conflict of its interests to allow three prominent professors to testify for plaintiffs in a lawsuit over new voting restrictions that Gov. Ron DeSantis signed into law earlier this year. It backtracked slightly days later when it said the three would be allowed to testify if they forfeited any compensation.

No evidence has emerged that the governor had a hand directly in blocking the testimony of the professors. In unrelated decisions over politically sensitive matters, Fuchs has openly expressed concerns that officials in Tallahassee would overrule him, and he has worried about how choices made on campus in Gainesville could affect the university’s image and funding among the Republican-controlled Legislature.

It appeared that Florida – the state’s flagship university – was uniquely concerned about such matters. Preliminary results of a survey of every college and university across Florida have found no cases outside UF where professors had been prohibited from working as expert witnesses in such cases.

In the federal voting rights lawsuit, U.S. District Judge Mark Walker on Thursday blocked efforts by plaintiffs to question a representative of the governor’s office to see whether it played a role in UF’s decision to block the testimony by the professors. But Walker added that he was “not saying there is no issue here,” and openly speculated in his ruling that federal prosecutors could pursue felony witness-intimidation charges and said the plaintiffs might sue over the matter in civil court.

UF has close ties to the governor through the chairman of its Board of Trustees, who is a political donor, and because UF is the state’s flagship university. It rose to become a Top 5 public university under DeSantis partly because of generous funding during his administration that allowed the university to expand and hire hundreds of new professors.

On Twitter, McDonald confirmed that he was officially permitted to testify in the case and posted an image of a civil rights icon who died last year, former Democratic Rep. John Lewis of Georgia, with the caption of his famous sentiment, “Get in good trouble.” 

The university’s abrupt decision followed demands announced earlier in the day by the union representing faculty and staff at Florida, which encouraged donors to stop sending money to the university and urged other school administrators to downgrade UF’s recent Top 5 U.S. News and World Report ranking.

Already dozens of donors had published statements on social media during the past week pledging to stop donating until UF changed its decision – and in some cases said they were asking for refunds of recent contributions.

“University administration must affirm that it will not interfere with the right of any employee to exercise their conscience, academic freedom, free speech rights and expertise,” the union said.

The original decision also generated trouble with the university’s accrediting body. That group said it was investigating infringements upon academic freedom, and all the Democrats on Florida’s congressional delegation protested the decision. 

Expert witnesses can charge hundreds of dollars per hour preparing and testifying in court cases. UF’s conflict of interest policy said employees must avoid situations that interfere with their professional obligations to the university. That includes both paid and unpaid work.

When attorneys are considering conflicts of interest over their own participation in a lawsuit, whether they would be paid is immaterial if there are competing interests, said Charles Ehrhardt, a Florida State University law professor. He was the principal drafter on the Florida evidence statute, which outlines how evidence such as expert witnesses can be used in court. 

“I’ve never imagined or never thought that if I got paid was a determinative of whether or not there was a conflict representing one side,” he said.

In 2019, UF approved Smith, chairman of its political science department, to provide expert testimony in a case against DeSantis over voter suppression of former felons. The university barred UF law professor Kenneth Nunn from signing an amicus brief in the same case on the basis of conflict of interest.

“They may have legal authority to do what they’re doing,” said Jim O’Leary, a Bonita Springs attorney. “They may have a totally legitimate legal basis, contractually, to prevent them to testify, but it’s the appearance of non-transparency that is concerning to me.”

McDonald co-wrote an article in 2011 explaining the use of political scientists, such as himself, as expert witnesses in litigation. The piece said such expertise is necessary in commonly litigated parts of the election process, including political competition and voter behavior. 

“Your most valuable commodity is your credibility,” the authors wrote.

Micah Johnson provided expert testimony as a UF doctoral student and postdoctoral researcher in forensic sociology. He participated in criminal lawsuits that were against the state and remembers having a more tedious time navigating the school’s conflict-of-interest process than in previous years.

Johnson, now a University of South Florida professor, also worked with UF’s administration on matters of diversity and inclusion. He said he recognizes the sensitive relationships the university has with Tallahassee, but said there is a line between maintaining those and limiting freedom of speech. 

“It’s extremely helpful for the university to allow people to use their research and their expertise to strengthen the justice system,” he said.

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This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. The reporter can be reached at april.rubin@ufl.edu 

About April Rubin

April is a reporter for WUFT News who can be reached by calling 352-392-6397 or emailing news@wuft.org.

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