The University of Florida refused to allow three professors of political science to testify in a case challenging a state law restricting voting access. This decision could have wide-reaching implications for faculty at colleges and universities across Florida.
Two of the three political science professors, Michael McDonald, Sharon Austin and Daniel Smith, all have served as expert witnesses in state cases. They were informed by email earlier this month that they would not be allowed to continue as experts. They had requested permission to be experts in the case against Senate Bill 90, which was passed in Florida by the GOP-controlled Legislature following the 2020 election.
David Richardson, dean of UFs college of sciences, responded to Smith's request by writing that outside activities could create a conflict of interests for the executive branch of State of Florida.
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 (UFs assistant vice-president for conflicts of interests) responded in a similar fashion to Austin and McDonald's.
If it finds that the activities are detrimental to its interests, UF will refuse to allow employees to participate in outside activities. Wimsetts rejection of Austin and McDonald's was a clear indication that UF is a state actor.
Paul Donnelly, a lawyer representing the professors, called the UF decision retaliatory behavior. This strikes at the heart of academic freedom as well as impinging on their rights to free speech.
He said that it was a frightening, terrifying, and chilling change in policy. What would happen if another party had control and could engage this type of censorship.
Donnelly stated that the plaintiffs' lawyers in the voting rights lawsuit brought by Florida Rising, and other voting right groups raised concerns in the document filed at the U.S. District Court for the Northern District of Florida Friday.
Continue the story
He stated that he hoped the federal judge would address their concerns and UF changed its position. However, if it doesn't, they may consider filing a lawsuit in federal Court, arguing academic freedom has been violated and First Amendment rights have not been violated.
Steve Orlando, UF's VP of Communications, stated that the school had not violated the freedom to speak rights of the professors in a statement to the Miami Herald.
The University of Florida has a long history of supporting freedom of speech and academic freedom in our faculties. We will continue to do this.
It is important that Sharon Austin, Michael McDonald, and Dan Smith were not denied their First Amendment rights. Instead, the university refused to allow these full-time employees to do outside work that was in the university's best interests as an institution of the state of Florida.
The governor's office did not respond to our request for comment immediately.
In a letter to Wimsett dated Oct. 13, ACLU lawyer Daniel Tilley stated that Dr. Smith would speak in his capacity of a private citizen and not as an employee. Also, he argued that Smith should be permitted to testify as the issue is of great public concern.
He wrote that principles of academic freedom greatly reduce the government's legitimate prerogative to arrest professors who speak on matters of public concern.
After a Friday story by the New York Times about the decision, the United Faculty of Florida, which represents more than 25,000 professionals in higher education, released a statement condemning the decision.
The statement stated that we stand by our members and their obligation to share their knowledge for the common good. We support all Floridians' right to criticize their government. It will be a frightening precedent for Floridians who work in state or local government if UF doesn't reverse its decision.
Austin, a tenured professor said that she is one of only 2% black female full professors nationwide and that she will fight for the right. She urged UF to resist pressure from outside statewide forces.
Austin stated in a UFF news release that this was about me as a mentor to African American women. Southern Black women who don't fight for voting rights are a failure to her community. I refuse to tell my students it is important for them to fight for civil and voting rights, and then not to do so myself.
Smith also pledged to fight.
He said that this is a remarkable reversal of the green light the UF administration had given me to support the voting rights for all Floridians. We won't back down from this attack upon our First Amendment rights, to speak on our own time on matters of great public concern.
Professors have provided expert testimony in numerous lawsuits. Smith and McDonald also have expertise in cases against Florida.
Smith, the chair of the Department of Political Science, at the University of Florida, and McDonald's, a redistricting expert and professor in the same department, published an opinion piece in the Tampa Bay Times claiming that Republican leaders used outside contracts to deliberately shield redistricting data from the public.
The allegations were vigorously refuted by legislators who asked for the column to be removed.
Donnelly now believes that the timing of retaliation is important.
If someone engages in First Amendment-protected activity, such as the professors with the op–ed piece and their testimony, then if the government takes unconstitutional actions in close proximity to it, that is evidence of violation of constitutional right, he stated.
According to correspondence filed in federal court, Smith was initially told that he couldn't participate in July as an expert witness. After the op-ed, Austin and McDonald's were denied.
Senate Bill 90 was a change to the state elections laws. It limited the use of poll drop boxes and prohibited people from possessing more then two vote-by-mail votes, which was already illegal for Miami-Dade County.
Plaintiffs argue that the law is not constitutional and was designed to suppress minorities' voting rights. The state requested a federal judge to stop subpoenas that would have required seven Republican legislators as well as a representative from DeSantis' office to testify about the creation of the law. His office claimed executive privilege had prevented him from testifying.
Smith has been the most prolific of the three professors in his work with experts challenging the Republican-controlled state government.
Professor Daniel Smith of the University of Florida's political science department has served as expert witness in many cases involving challenges to Florida's election-related laws.
He was an important figure in litigation surrounding Amendment 4. The constitutional amendment Floridians approved in 2018 that allowed nearly all Floridians with felony convictions to vote provided they had completed their sentences.
Initially, the law was hailed as the nation's greatest expansion of civil right in decades. However, the state Legislature passed it at DeSantis insistance. It clearly defined all sentence terms by requiring felons to pay all court debts before they could vote.
The American Civil Liberties Union sued and several other groups claimed that the bill was not constitutional. Smith was hired by the ACLU to analyze the impact of the bill. He compiled the largest database of Florida felons. Nearly 80% of them would not be eligible to vote due to owing court fees, fines, or restitution. Many owed over $1,000, which is a prohibitive amount for those who are already having difficulty finding work because of their convictions.
Smith testified that the deck was against them.
Tallahassee's federal judge sided with the state. However, the Atlanta appellate court overturned the decision.
Smith was also an expert in mail-in ballots and in a case that required the state to offer Spanish-language ballots for Hispanic voters prior to the 2020 election. Smith provided a written report to the League of Women Voters on how to extend early voting in Florida. He also testified against UF during a case that saw the repeal of a ban on early voting on Florida university campuses.
Early voting opened Monday, October 22, 2018, at Nova Southeastern University (Davie).
Smith was a witness and analyst in the redistricting case brought by the League of Women Voters, as well as other plaintiffs, between 2012 and 2014.
Donnelly stated that he has been working with University Florida faculty members as expert witnesses for over three decades. This activity has been a way for faculty and staff to increase their salaries.
It is more popular at the University of Florida because it attracts the university more respect. These faculty work for public institutions so the pay is not usually comparable to private ones, he stated. It has been encouraged so often.
Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas
