In ‘chilling’ decision, UF professors have been barred from testifying against Florida

In a decision that could have far-reaching free speech implications for faculty at universities and colleges across Florida, the University of Florida has refused to allow three political science professors to continue to serve as expert witnesses in a case that challenges a new state law that restricts voting access.

Political Science Professors Daniel Smith, Michael McDonald and Sharon Austin, in cases before the state, were told by emails earlier this month that their requests to serve as experts would now be rejected. They were seeking permission to serve as experts in the case challenging Senate Bill 90, passed by Florida’s GOP-controlled Legislature in the wake of the 2020 election.

“Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida,’’ wrote David Richardson, dean of UF’s college of arts and sciences in response to Smith’s request.

Smith is the chair of UF’s political science department; McDonald is a national expert on elections and Austin studies African American political behavior.

Gary Wimsett, UF’s assistant vice president for conflicts of interest, provided a similar response to McDonald and Austin.

“UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests. As UF is a state actor, litigation against the state is adverse to UF’s interests,” Wimsett’s rejection to McDonald and Austin read.

Paul Donnelly, a lawyer for the professors, called the UF decision “retaliatory” behavior that “strikes at the very heart of academic freedom” and impinges on their free speech rights.

“It is a profound, chilling, frightening change in policy,’’ he said. “What would happen if another another party was in control and could engage in this kind of censorship.”

Donnelly said the plaintiffs lawyers in the voting rights case brought by Florida Rising and other voting rights groups raised their concerns in the document filed in the U.S. District Court for the Northern District of Florida on Friday in the case.

He said he hopes the federal judge will address their concerns and UF changes its position, but if it doesn’t they will considering filing a lawsuit in federal court, arguing academic freedom and First Amendment rights have been violated, and seeking a preliminary injunction.

In a statement released to the Miami Herald by UF’s VP for communications, Steve Orlando, the school denied infringing on the free speech rights of the professors.

“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.

“It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, 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.”

The governor’s office did not immediately reply to a request for comment.

In an Oct. 13 letter to Wimsett, ACLU lawyer Daniel Tilley told the university that “there is no question that Dr. Smith would be speaking in his capacity as a private citizen, not as an employee of the University.” He also argued that Smith should be allowed to testify because the issue is one of great public concern.

“Principles of academic freedom significantly reduce the scope of the government’s legitimate prerogative to police professors’ speech on matters of public concern,’’ he wrote.

The United Faculty of Florida, the union which represents 25,000 higher education professionals, condemned the decision in an email to university officials on Tuesday, and again in a statement released after a story about it was first published late Friday by the New York Times.

“We stand with our members and their duty to share their expertise for the public good,” the statement said. “We stand with all Floridians and their right to criticize their government. If UF does not rescind its decision, it will establish a terrifying precedent for any Floridian who works in local or state government.”

Austin, a tenured professor, said she is among only 2% of black female full professors in the nation and will fight for the right to speak up. She urged UF to “not cave into pressure from outside statewide forces.”

“For me, this is about my role as an African American female mentor,’’ Austin said in a statement included in the UFF news release. “A Southern Black woman who is not fighting for voting rights is a sell-out to her community. I refuse to teach my students that it is important to fight for voting and civil rights and then not fight for those rights myself.”

Smith also vowed to fight.

“This is really quite breathtaking, and a complete reversal from the green light that the UF administration has always given me to promote the voting rights of all Floridians,’’ he said in a statement. “We will not back down from this attack on our First Amendment rights to speak out on our own time, on matters of great public importance.”

The professors have offered expert testimony in many lawsuits, and Smith and McDonald have also provided expertise in previous cases against the State of Florida.

A week before McDonald was denied his request to serve as an expert, Smith, who is chair of the Department of Political Science at the University of Florida, and McDonald, a redistricting expert who is also a professor in the department, wrote an op-ed published in the Tampa Bay Times accusing Republican leaders of using outside contracts to intentionally shield redistricting data and mapping details from the public.

Legislators vigorously denied the allegations and asked that the column be retracted.

Donnelly now says the timing of what he considers retaliation is significant.

“When someone engages in First Amendment protected activity, like the professors did with the op-ed piece or they did with their testimony, if unconstitutional action is taken by the government in proximity to that, that’s evidence of violation of constitutional rights,’’ he said.

Smith was originally told he could no longer participate as an expert witness in July, according to the correspondence included in documents filed in the federal court. But the denial for McDonald and Austin came after the op-ed.

Senate Bill 90 made changes to the state’s elections laws, such as limiting the use of ballot drop boxes and prohibiting people from possessing more than two vote-by-mail ballots, which was already illegal in Miami-Dade County.

The plaintiffs in the case argue the law is unconstitutional and designed to suppress voting by minorities. Last week, the state asked a federal judge to block subpoenas that would require seven Republican legislators and a representative of DeSantis’ office to testify about their roles in creating the law. The governor’s office claimed executive privilege prevented his office from testifying.

Smith has been the most prolific of the three professors in his work with experts challenging the Republican-controlled state government.

He was a key figure in the litigation surrounding Amendment 4, the constitutional amendment Floridians passed in 2018 allowing nearly all people with felony convictions the right to vote, provided they completed “all terms” of their sentence.

Initially hailed as one of the nation’s greatest expansion of civil rights in decades, it was scaled back when the state Legislature, at DeSantis’ insistence, passed a law sharply defining “all terms” of sentence by requiring felons pay all court debts before being able to vote.

The American Civil Liberties Union and other groups sued, claiming the bill was unconstitutional. The ACLU hired Smith to study the effects of the bill and he assembled the most comprehensive known database on Florida felons and concluded that nearly 80% of them would be unable to vote because they owed court fees, fines or restitution to victims. Most owed more than $1,000, an amount out of reach for people who already have trouble finding work after being convicted of a felony.

“The deck is stacked against them,” Smith testified.

A federal judge in Tallahassee sided against the state, but the decision was overturned by an appellate court in Atlanta.

Prior to the 2020 election, Smith also served as an expert on mail-in ballots, and in a lawsuit that forced the state to provide Spanish-language ballots to Hispanic voters. He provided a written report for the League of Women Voters to extend early voting in Florida and also testified against UF in a case that resulted in overturning a ban on early polling places on Florida university campuses.

From 2012-14, Smith provided analysis and testimony in the redistricting lawsuit brought by the League of Women Voters and other plaintiffs.

Donnelly said he has worked with University Florida faculty as expert witnesses for three decades and it is an activity that has always been encouraged by the university and has been a way for faculty to augment their salaries.

“At the University of Florida, it brings the university more fame and respect and these are faculty working for public institutions, so the pay is generally not comparable to private institutions,’’ he said. “So it has been routinely encouraged.”

Andrew Gothard, UFF president, warned in an email to UF President Kent Fuchs that the union may be prepared take legal action if the professors are not allowed to exercise their academic freedom and constitutional right to free speech.

“Otherwise, the United Faculty of Florida will undertake all necessary legal, contractual, and legislative measures to ensure that the fundamental principles of American freedom and democracy are protected at the University of Florida, now and into the future,’’ Gothard said.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas