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A judge takes aim at UF's arguments during a hearing over professors' free speech lawsuit

Rachael Gregory
Fresh Take Florida
Students walk outside of the Marston Science Library on campus at the University of Florida in Gainesville on Wednesday, September 22, 2021.

He addressed the UF lawyer's claim of "newly discovered facts" that showed the professors had already begun working on the elections case before their requests to serve as witnesses were rejected.

In a fiery hearing Friday, a federal judge excoriated a lawyer for the University of Florida who accused political science professors of having “misled” the court in a lawsuit challenging the school’s conflict-of-interest policy.

Christopher Bartolomucci, who represents University of Florida officials, received a tongue-lashing from Chief U.S. District Judge Mark Walker after arguing that “newly discovered facts” revealed “misconduct” by political science professors Sharon Austin, Michael McDonald and Daniel Smith.

The tenured professors filed the lawsuit after university officials denied their requests to serve as plaintiffs’ witnesses in a legal battle about a 2021 state elections law (SB 90) that would, in part, make it harder for Floridians to vote by mail. In denying the professors’ requests, university officials said that going against the executive branch of the state government was “adverse” to the school’s interests.

The professors, who were joined by three other faculty members in the lawsuit, contend that the university’s conflict-of-interest policy violates First Amendment rights, discriminates based on viewpoint and content and has a “chilling” effect. The plaintiffs have asked Walker for a preliminary injunction to block the policy, adopted in mid-2020, from being enforced.

Bartolomucci said Friday that evidence uncovered Wednesday showed that the professors had already begun working on the elections case before their requests to serve as witnesses were rejected.

“This court should not enjoin a process that the plaintiffs don’t even abide by. There’s no chilling effect. The policy didn’t chill them. … These plaintiffs went to work even before they made a request,” Bartolomucci argued.

The lawyer also reiterated arguments that the plaintiffs lack “standing” to sue the university because they aren’t being harmed by the policy.

“These plaintiffs aren’t injured by the process. They don’t even honor the process,” Bartolomucci said, suggesting that Friday’s hearing should be postponed until the defendants were allowed to file “supplemental” briefs on the issue.

But an irate Walker said he was “mystified” by Bartolomucci’s “newly discovered” facts. The judge noted that he had given lawyers for the defendants — University of Florida President Kent Fuchs, Provost Joseph Glover and UF’s Board of Trustees — ample opportunity to take depositions and conduct discovery before hearings last week and Friday.

The timing of the filing of the professors’ expert reports in the elections case is “a matter of public record,” Walker said during a telephone hearing attended by national media outlets including The Chronicle of Higher Education, CNN and The Washington Post.

“I’m just perplexed, and I’ll go so far as it strains credulity, for you to suggest that these are newly discovered facts when placed in context that it’s all part of the public record,” Walker said. “I’m flummoxed that you’re saying that these are the very reports and the expert testimony we’re talking about, yet ‘judge we had no idea, none at all.’ I’m just flabbergasted, in the last two days I learned the earth is not round and there’s gambling in Casablanca. … I’m using strong language for a reason, because at the end of the day both you and Mr. O’Neill (David O’Neill, an attorney for the professors) are officers of the court before you are lawyers representing a client.”

Bartolomucci said lawyers for the defendants “pieced the facts together” after learning of them Wednesday night and argued that the timing of the expert witness reports and the requests was not included in the plaintiffs’ legal complaint, drawing another rebuke from the judge.

“When did you decide, Mr. Bartolomucci, other than, ‘We really don’t have a defense … we’re going to … for the press’ benefit on this hearing drop this bombshell and attack the professors for having unclean hands,’” Walker said. “I view this 11th-hour epiphany on your part to be questionable. But again, did this miraculously come up as an issue?”

Bartolomucci said the defendants’ lawyers “began to research the filings in the election case” Wednesday night.

“I’ve heard enough,” Walker interrupted, adding, “serious ethics issues, I think, now exist in this case.”

The UF conflict-of-interest policy drew a national spotlight after the political science professors were blocked from testifying in the elections case. Fuchs ultimately walked back the decision, saying the professors would be allowed to be paid as plaintiffs’ experts if they did so on their own time and did not use school resources. Fuchs also quickly assembled a task force to review the issue and signed off on recommended changes to the conflict-of-interest policy.

Under the revised policy, there is a “strong presumption” that the university will approve faculty or staff requests to testify as expert witnesses.

But the lawsuit maintains that the revised policy doesn’t go far enough.

UF has had “multiple opportunities … to say what should be obvious to any university administrator: We will never attempt to prohibit faculty from speaking as citizens because of the content of their speech or popularity of their opinions,”

O’Neill, the plaintiffs’ attorney, argued Friday.

“The university’s interest is not the interest of the majority party in the state Legislature or its current governor. That is academic freedom 101,” he said.

To bolster their arguments about the policy, the plaintiffs have pointed to comments by UF Board of Trustees Chairman Morteza “Mori” Hosseini, who lashed out at unidentified professors during a board meeting in November.

Hosseini accused faculty members of having “taken advantage of their positions” by using their university jobs “to improperly advocate personal political viewpoints to the exclusion of others. … Our legislators are not going to put up with the wasting of state money and resources, and neither is this board.”

O’Neill said Friday that Bartolomucci “has done an excellent job of explaining the chill that these plaintiffs and other faculty members are subject to” under the conflict-of-interest policy.

“Far from walking away from the initial denials … the defendants are now doubling down on them and making it clear that these plaintiffs may be subject to punishment for their refusal to follow what they strongly believe is an unconstitutional prior restraint,” he argued.

Walker last week rejected a request by university leaders to dismiss the case. The judge said Friday he expects to issue a ruling on the plaintiffs’ request for a preliminary injunction within 10 days.

Dara Kam is the Senior Reporter of The News Service Of Florida.