The Volokh Conspiracy
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Academic Freedom Alliance Letter on the University of Florida Situation
The university's effort to suppress expert testimony in a lawsuit against the state is contrary to academic freedom and the First Amendment
The Academic Freedom Alliance has released its public letter on the situation at the University of Florida. The administration of the University of Florida has attempted to block three political science professors from serving as expert witnesses in a lawsuit against the state over the recently enacted voting law, as discussed by co-blogger Eugene Volokh here. This is an egregious violation of academic freedom and the First Amendment. If accepted in this case, it would have broad ramifications for how state universities operated across a host of other cases.
From the letter:
I write on behalf of the Academic Freedom Alliance to express our firm view that this decision is a serious violation of the academic freedom principles to which the University of Florida is committed. The university is mistaken in thinking that this decision is consistent with the principles of free speech and academic freedom and has construed the potential conflicts of interest in this case in a manner that is incompatible with maintaining academic freedom in the future. It has long been a central feature of academic freedom in the United States that when university professors "speak or write as citizens, they should be free from institutional censorship or discipline." Whatever interest a state university might have in preventing members of its faculty from acting as political partisans when operating within their duties as state employees, that interest cannot be understood to extend to restricting the speech activities in which professors might engage when operating outside their university duties and acting as private citizens.
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If I accept a paid job in opposition to my employer, I'm getting fired.
This is no different.
I think you are focusing too much on the 'paid' part. In the update at the bottom of EV's first post, a faculty member there says:
"Just to clarify the policy—which was adopted in the past 2-4 years (not sure how long, but it is new)—about which you cogently wrote earlier today, it does not hinge on whether the employee has a financial interest. As the form states, notice and then permission are required of "any activity or financial interest." When it was introduced to the faculty, we were informed by university counsel and our Dean that any activity, even those for which we would not receive any compensation (e.g., signing onto an amicus brief) requires advance permission."
That broad a reading would mean an employee couldn't testify at a school board meeting, write a letter to the editor, etc. IANAL but I can't see that passing 1A muster.
(I can see a restriction on paid work. Indeed, when I worked for State U the employee handbook for staff (dunno about faculty) said advanced permission was required for outside employment)
Your parade of horribles does not apply to this situation, paid expert testimony.
"I think you are focusing too much on the 'paid' part."
Like EV, Whittington egregiously omits any mention of or link to the UF's 10/30 statement about this, which indeed focuses on "paid" and "full-time employee".
Me, I wouldn't focus on that. Florida doesn't have to employ anyone trying to screw over its citizens in any capacity, full stop.
Again: how does testifying that a state's law is unconstitutional "screw over" the citizens of the state? Seems like it benefits the citizens of the state.
Nonsense.
University employees can't be required to give up their 1A rights to oppose the governor's policies, whether they are paid or not.
They aren't. They can still march and tweet and go on tv and complain all they want.
They just can't get paid as a state employee to do so.
They're not getting paid as a state employee; they're getting paid as an expert witness.
paid "while" also a state employee
Bob,
I guess that you missed the part that paid includes mere compensation for expenses.
So, its still a payment.
But that is not work for hire.
You are just envious of the perks of being an academic at a major research university
LOL
Of all the people to "envy"!
Yup., and you have it really bad
"...the perks of being an academic at a major research university"
It's not as obvious that you should have the perk of remaining employed while trying to screw over your employers (the people of the State of Florida, in this case) as you imagine. I'd fire them even if they weren't paid.
The point that "paid includes mere compensation for expenses" is utterly irrelevant unless the professors are in fact being paid merely compensation for expenses. No one has suggested that that I can see,
But they get paid frequently for such activities, often in the form of honoraria for guest lectures or colloquia, as royalties for books, etc. In the current case, the three professors noted that they and their colleagues have been compensated in the recent past for providing the same kind of expert testimony that is at issue now, and that the U of F has always approved that.
Was the allegedly expert testimony being provided in those instances in a suit against the State of Florida?
It's not "the governor's policies", it's a voter id law.
Who employs you?
If your employer has an established conflict of interest policy and if that policy were evenly applied, you might have a point.
In this case, the employer does have a conflict of interest policy but its standards are unclear and the evidence shows that it is not evenly applied. That does make this case different.
We should also point out that there are some important exceptions that prohibit retaliation against whistleblowers, jury members and others participating in what we fuzzily call the public interest. It is unclear so far whether the professors' participation as expert witnesses would count under this rule.
According to the comment above "notice and then permission are required of "any activity or financial interest." seems like an established conflict policy to me.
Please re-read. I agree that they had an established policy. I question the clarity of the policy's standards and I note that you've ignored the problem of wildly inconsistent enforcement.
The conflict with the interests of the State of Florida are clear in this case, and their notice is timely. I'm not seeing why they should imagine their situation to be that they possess a special impunity to work against the interests of the citizens of Florida in fair elections and remain employed by their opponents.
Bob,
It is quite a bit different.
At most major university, professors are allowed one day per week for consulting or other business activities while receiving full compensation.
Few other employers allow that privilege.
Does U of Florida?
They have a policy requiring pre-approval in any event.
"Few other employers allow that privilege."
IDK, mine does. I represent as a lawyer an occasional client and keep the payment despite my full time paid status
Actually bob.
Can you get paid for that work for the lawyer during normal work hours?
Where at many major research universities, one can spend time as a consultant of building his/her own business a full day during midweek.
What are "normal" work hours?
I work in the private sector, they expect results.
Even in the private worksector employers have "normal work hours" and no matter who the employer bills, the payer expects an honest account of work performed. Public employers also expect results.
So, "I work in the private sector, they expect results" is just a lame ducking of the point made Bob.
By the way Bob, results that count are usually called deliverables by the customer.
Repeat: "Does U of Florida?" (allow one day self-emplyment)
And, do you imagine Bob can spend his allowed-outside-law practice time suing his employer?
Political scientists qualifying as experts under daubert?
Which is an even better point.
There's no value in anything they have to say, it's just their worthless left wing political opinions.
So on those grounds the courts should say "there's no live controversy here, because no competent court would ever listen to them"
This arose about a concern over a conflict of interest, so the answer seems obvious: eliminate all government funding to universities. No more conflict of interest!
There's also the added benefit that ordinary Americans wouldn't have to fund quite as many of their enemies.
Enemies?
You know, people with book learnin'. The Khmer Rouge understood this; now Trump supporters do too.
The universities' politics are a lot more aligned with the politics of the Khmer Rouge than they are of Trump supporters. But continue to believe in that little caricature if doing so helps you sleep better at night.
"people with book learnin'"
Don't worry, you are safe.
They're enemies of the Florida voter id law, and hence of fair elections for the citizens of Florida. "Enemies" sounds right to me.
...it's bad enough that they are pulling down six-figure taxpayer-funded salaries to fill students heads with crap without their getting to supplement that by getting paid to screw over the citizenry in other ways. That, too, should stop.
Gandydancer
Sock puppet.
Answer to nobody:
Wrong the issue has nothing to do with the university being a public universtity
the issue has nothing to do with the university being a public universtity
Why would a public university have a position which they disallow contradicting?
There's a podcast interview of some Academic Freedom pusher posted to Volokh today (I think today) where he defends efforts to defenestrate some academic economist who self-identifies as a "race realist" (while simultaneously defending the adjunct who called for "muscle" to keep some student out of the quad where black students were Floyd-protesting). Who, whom. Some "positions" are more equal than others.
This issue is not about academic freedom. It is about freedom, period. Under our Constitution a state actor may not prohibit otherwise legal activity of speech by anyone, including its employees, based on the content of that speech. Being paid or not paid is irrelevant.
A real problem here is that this issue reveals that pseudo conservatives who profess fealty to the Constitution are willing to toss their principles away when support of Constitutional rights conflicts with their political beliefs.
I profess fealty to the Constitution. I am not willing to toss my principles away. As someone said upthread, I'd start by eliminating all government funding for colleges / universities. Then, per your suggestion, I'd let (private college) faculty give whatever expert testimony they want.
What about Prof. Volokh's work drafting various amicus briefs in defense of First Amendment rights. He works for UCLA. Would you likewise say he cannot make those arguments challenging executive branch overreach?
I'd have to look, but I'm fairly certain Prof. Volokh has spoken out against California-state restrictions on speech. And yet he's a UCLA employee. Can Gov. Newsom order him to stop posting at Reason?
Is Reason paying him to testify in a suit againsrt the State of California?
Things which are different are not the same.
He’s actively working against the executive branch of the state of CA while a state employee. I think UF’s logic would say CA can bar him from doing that. I take it your avoiding the obvious hypocrisy in opposing that while
supporting UF’s position.
Did you read my comment? I don't want to stop Prof. Volokh from making arguments. I want to shut down UCLA.
Now I see. You hate public education.
"Being paid or not paid is irrelevant."
The University of Florida disagrees with you (though you wouldn't know that if you rely on the posts at VC, which ignore its statement on the matter).
The University of Florida issued the statement about payment after and following public outcry in opposition to its original statement, which focused on restricting testimony that would be counter to the interests of the university. And the U of F has conveniently ignored the fact that it has approved such compensated testimony for faculty in the past, often, and on equally controversial issues. The difference is that they have a different governor now.
"A real problem here is that this issue reveals ..."
You couldn't resist an unconnected screed.
I mean, the right side of this issue itself is pretty clear in this case.
So one naturally turns to the comments, where the conservative hypocrisy parade is the first thing that smacks you in the face.
This reflexive spite against institutes of higher education by politicians and commenters, many of whom went there and now downplay it, is dumb as hell. I've seen you verbally shaking your head at that regularly.
Obvious, indeed. The right side of the issue is that the worthless profs should be fired if they work against measures to prevent voter fraud in Florida elections.
Meanwhile, elsewhere in Right-Wing cancel culture, a Texas legislator is out trying to ban books he disapproves of.
And just last week we have this example of Right-Wing "cancel culture" as well.
Universities and companies are just following the precedent set by the last two presidential administrations and pushing the law until (i) it breaks, or (ii) they are pushed back.
Whatever principles companies once had are largely gone ... we are in an "anything goes" environment now.
This is such nonsense.
'I think the other side is unprincipled, so I'm OK with my side discarding it's principles' will always excuse your side's bad behavior, since you will always think the other side is unprincipled.
Really, it's just nihilism. Principles you're willing to discard when you get mad were never your principles at all.
This from the guy who accused the father whose daughter was raped in a bathroom of running to the cameras when in fact he stayed away from them until the National School Board Association made him their poster boy for Parental Terrorism.
Liars like you talking about "principles" -- that's a laugh.
This is an egregious violation of academic freedom and the First Amendment.
What "academic freedom"?
Let me know when "academic freedom" means that people who disagree with the left-wing world view make up 50% of academics. Until then, academia is a hostile environment to conservatives, and there's no freedom for us.
And so long as there's no freedom for us, no one else deserves any, either
They want the academic freedom to get overpaid while screwing over the people who pay their salaries. And I say, "To hell with that!"
Couldn't GM fire an employee who was paid to testify against GM and used their credentials as a GM employee as an expert to tear at them?
My inclination is academic freedom as a special case due to boilerplate about it, but why is the above wrong?