Jeffrey Schweers
January 14, 2022
Tallahassee Democrat
A federal judge in Tallahassee Friday blasted a lawyer for the University of Florida for bringing up “new” information in a closely watched lawsuit over free speech and academic freedom.
It was the second hearing in two weeks on the lawsuit, originally filed by three UF political science professors denied permission by the school to give expert testimony against the state’s year-old elections law because it put UF at odds with Gov. Ron DeSantis and the Legislature, who decide on the public university’s budget each year.
Christopher Bartolomucci, a Washington, D.C. lawyer for UF, said he and his team discovered just two days ago that the professors had actually prepared their testimony before requesting permission to testify.
“We now know they were actively working before they submitted their request,” Bartolomucci said in the online proceeding. “These facts are found nowhere in complaints. They have misled counsel, the employer and this court. … They have unclean hands, and shouldn’t enjoy relief.”
He asked Chief U.S. District Judge Mark Walker to reopen discovery — the fact-finding phase that happens before a trial — so they could introduce new evidence.
Instead, Walker grilled and lectured him for several minutes, cutting himself short after saying the lawyer’s behavior had raised some serious ethical issues.
“It strains credulity when you say these are newly discovered facts when they are all part of the public record,” Walker said. “These are the very reports and experts we knew about, but we just learned in the last two days the Earth is not round and there’s gambling in Casablanca and these professors had their reports before they submitted requests for approval.”
Walker asked Bartolomucci to explain his “11th-hour epiphany” but quickly cut him off when he started to repeat his previous statement and threatened to force him to Tallahassee and place him under oath to explain himself. The judge also lectured him about his failure to check public records.
“Are you saying you are just incompetent?” Walker asked. “Or did you decide (you) really didn’t have a defense … and instead decided to drop this bombshell …?”
Walker got worked up over the fact that he offered an opportunity for discovery and the lawyers waived it. It would be impossible to have an injunction hearing if he had to reopen the public record every time lawyers had new information to share.
“Your honor made it clear either party could seek discovery,” said David O’Neil, a Washington, D.C. lawyer for the plaintiffs. “It is unclear why he’s presenting these facts now in oral arguments.”
But Bartolomucci illustrated very clearly why the UF policy should be struck down as unconstitutional prior restraint, O’Neil said.
“He did an excellent job illustrating the chill,” O’Neil said. “Instead of walking away from the denials, the defendants are doubling down on them and making clear that these plaintiffs may be punished for what they believe is an unconstitutional prior restraint.”
These same set of facts were presented in a defining First Amendment and academic freedom case involving a professor at Texas A&M University (Hoover v. Morales), O’Neil added. Dr. Robert Hoover “testified notwithstanding the denial, believed the denial was unconstitutional and filed and injunction and succeeded,” he said. “We are confident we will succeed as well.”
Three UF political science professors — Sharon Austin, Daniel Smith and Michael McDonald — filed suit after they were denied permission to provide expert testimony in a case challenging a new state elections law that places restrictions on voting by mail, among other things. Smith is chair of the department.
Administrators said their testimony would be adverse to the university’s interests because they went against the executive branch of state government. But the university allowed faculty to lend their expertise to court cases without restriction up till 2020, the professors responded.
Two law professors later joined the suit after they were told they needed permission to file friend-of-the-court briefs in a case challenging another state law requiring felons to pay all their court fees and fines before they could have their voting rights restored. They were also told they couldn’t identify themselves as UF law faculty.
And a UF medical professor who was denied permission to testify on the governor’s COVID-19 policies banning masks in schools also joined the suit.
Contrary to UF’s lawyers asserting the policy had no negative impact on him, he said in an affidavit filed with the court that he was denied his request to participate in litigation “on an issue that is fundamental to pediatric health simply because it was adverse to the state’s political interests.”
The plaintiffs claim the university’s success and status as a top public university is tied to maintaining a favorable status with the governor and Legislature to continue to get the funds needed to hire top faculty and build state-of-the-art facilities.
The controversy placed the state’s flagship university, which just achieved top five status among all public universities, in an unwelcome critical spotlight and sparked an investigation by the university’s accreditation board.
Facing a huge public outcry and an investigation by the university’s accreditation organization, UF administrators reversed track and allowed the faculty to testify after all, and made some minor amendments to the conflict of interest policy.
At last week’s first hearing on the injunction, Walker criticized UF Board of Trustees Chairman Mori Hosseini for saying they have to take into consideration the reaction to the proposed speech among the “the legislature, the taxpayers of Florida, the people that are funding us.”
Walker said he hopes to issue an order by Jan. 24 on a request by a group of University of Florida professors to invalidate its conflict of interest policy as unconstitutional, given its high importance.
“This is on the front burner and I will do my best to get an order out in the next 10 days or so,” the judge said at the end of the 90-minute teleconference. “I will try to do my best in light of my other commitments. I will not sit on this case.”
Jeffrey Schweers is a capital bureau reporter for USA TODAY NETWORK-Florida. Contact Schweers at jschweers@gannett.com and follow him on Twitter @jeffschweers.