Austin v. Univ. of Fla. Bd. of Trs.

• Decision Date: 21 January 2022
• Docket Number: Case No.: 1:21cv184-MW/GRJ
• Citation: 580 F.Supp.3d 1137
• Parties: Sharon Wright AUSTIN, et al., Plaintiffs, v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

580 F.Supp.3d 1137

Sharon Wright AUSTIN, et al., Plaintiffs,

v.UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, et al., Defendants.

Case No.: 1:21cv184-MW/GRJ

United States District Court, N.D. Florida, Gainesville Division.

Signed January 21, 2022

Laura Ann Gross, Paul Andrew Donnelly, Donnelly & Gross PA, Gainesville, FL, Alexandra P. Swain, Jaime Michelle Freilich-Fried, Katharine McGrath Witteman, Morgan Amanda Davis, Samuel Jack Rosh, Soren Owen Schwab, DeBevoise & Plimpton LLP, New York, NY, David Andrew O'Neil, DeBevoise & Plimpton LLP, Washington, DC, for Plaintiffs.

Brian J. Field, H. Christopher Bartolomucci, Kenneth Alan Klukowski, Schaerr Jaffe LLP, Washington, DC, for Defendants.

PRELIMINARY INJUNCTION

Mark E. Walker, Chief United States District Judge

For more than twenty years, an imposing, eight-meter-tall statue stood on the University of Hong Kong's campus. Commemorating the 1989 Tiananmen Square Massacre victims, the statue—known as the Pillar of Shame—was "a towering entanglement of human suffering cast in bronze, copper

and concrete."¹ Its base said simply: "The old cannot kill the young forever."

In December 2021, however, the University decided to remove the statue. A statement explaining the decision declared simply that removing the statue was in "the best interest of the University."² In many ways, the Pillar's demise was emblematic of the demise of academic freedom in Hong Kong.

Hong Kong has long had an excellent university system—the University of Hong Kong, for example, is ranked 76th globally. By comparison, the University of Florida is ranked 99th. In 2010, Hong Kong's universities also received an "A" ranking in academic freedom.³ But now, they have a "D" rating.

"One reason for this is self-censorship."⁴ Much of the pressure on students and professors comes not from Beijing, but from university administrators. For example, one professor who has spent over twenty years at a Hong Kong university remarked that "it is a very, very peculiar and interesting thing, because it is not as if the body that is eroding academic freedom is outside the university. It is not a foreign body."⁵ "Many reports tell of outspoken academics being denied tenure, refused promotions or [being] unable to get their contracts renewed."⁶ Despite the obvious nature of this repression, one professor complained, "[t]hey never say its political."⁷

The presidents of Hong Kong's top universities also signed a letter supporting Beijing's repressive new national security law, which requires "higher education institutions to incorporate national security education into their curriculum."⁸ Such courses "outline the national security law's 66 articles, detailing how they might be breached, while stressing the need for greater patriotism and national Chinese identity."⁹ And many faculty members, "recounting how they had dedicated their professional lives to [their] university[,] ... now feel abandoned."¹⁰ Remarking that "[i]t is upsetting to be part of an institution proactively participating in stifling dissent," one unnamed professor explained that "she and many colleagues are looking for jobs in other countries."¹¹

Some might say, "that's China, it could never happen here." But Plaintiffs contend it already has.¹² In an apparent act of vorauseilender Gehorsam ,¹³ they say, UF has bowed to perceived pressure from Florida's political leaders and has sanctioned the unconstitutional suppression of ideas out of favor with Florida's ruling party.¹⁴ Declaring such activities a conflict of interest, UF has repeatedly blocked professors from providing expert testimony against the State in cases implicating hot-button political issues. Then, facing a storm of criticism, UF "revised" its conflicts policy. Plaintiffs now bring a First Amendment claim, contending that the "revised" policy suffers from the same constitutional infirmity; namely, it does not disclaim UF's "interest" in aligning faculty speech with the ruling party's political preferences. For similar reasons, Plaintiffs argue that UF's policy addressing when law professors may sign amicus briefs is also unconstitutional. Plaintiffs move for a preliminary injunction barring UF from applying its policy to future requests to serve as expert witnesses and sign on to amicus briefs, arguing that the policy continues to violate the First Amendment rights of all faculty.

This Court held a telephonic hearing on Plaintiffs' motion on January 7 and 14, 2022. For the reasons set out below, Plaintiffs' motion, ECF No. 30, is GRANTED in part .

I

"In understanding what is going on around us, context matters." Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale , 901 F.3d 1235, 1237 (11th Cir. 2018). This case is no exception. Because it is impossible to understand the issues this case presents without knowing the context in which those issues arose, this Court first places this case in its broader context.¹⁵

A

Located in Gainesville, Florida, and boasting around 57,841 students, the University of Florida is Florida's oldest university.¹⁶ Most also consider UF Florida's "flagship" university. The U.S. News and World Report ranks UF the 28th best university in the nation and the 5th best public university. Perhaps best known for the invention of Gatorade, UF has also produced Nobel prize winners, astronauts, politicians, generals, artists, Olympians, and a good number of federal judges.

B

Plaintiffs are six UF professors. Plaintiffs Austin, McDonald, and Smith are political science professors, Plaintiff Goldhagen is a professor of pediatrics, and Plaintiffs Nunn and Reid are law professors.

Plaintiffs have long served as expert witnesses in lawsuits relating to their fields of expertise. See, e.g. , ECF No. 30-1 ¶ 4 (statement by Plaintiff Nunn that UF has encouraged faculty "to engage with the public on important issues through ... litigation"); ECF No. 30-2 ¶ 3 (identical statement from Plaintiff Reid); ECF No. 30-3 ¶ 2 (statement by Plaintiff Goldhagen that he "served as an expert witness in litigation relating to lead poisoning

of children"); see also

Ga. Coalition for People's Agenda, Inc. v. Kemp , 347 F. Supp. 3d 1251, 1263 (N.D. Ga. 2018) (citing declaration by Plaintiff McDonald); Brown v. Detzner , 895 F. Supp. 2d 1236, 1251 (M.D. Fla. 2012) (citing declaration by Plaintiff Smith); League of Women Voters of Fla. v. Browning , 575 F. Supp. 2d 1298, 1308 (S.D. Fla. 2008) (citing declaration by Plaintiff McDonald). In fact, UF has historically encouraged such activity. See ECF No. 30-6 ¶ 4 (statement by Plaintiff Smith that "in my annual performance reviews, the University has praised my research and advocacy on voting rights").

Defendants are UF's administrators. The Board of Trustees is UF's public body corporate, Defendant Fuchs is UF's president, Defendant Glover is UF's provost, and Defendant Rosenbury is the dean of UF's law school.

C

"UF's quest to become a top-10 public research institution officially began in 2013."¹⁷ That year, the Florida Legislature created the preeminent state research universities program. § 1001.7065, Fla. Stat. (2013). Under the program, a state research university that met 11 of 12 statutory benchmarks qualified as a "preeminent state research university." Id. § 1001.7065(3). The law further required each preeminent university to "submit to the Board of Governors a 5-year benchmark plan with target ranking on key performance metrics for national excellence." Id. § 1001.7065(6). If a university later met its benchmark plan, it received "an amount specified in the General Appropriations Act"—$15 million dollars. Id.

At the preeminence program's inception, UF met all 12 benchmarks. And in late 2013, then-UF president Bernie Machen announced UF's five-year plan, an initiative called "UF Rising."¹⁸ Under the plan, UF sought to hire up to 100 new faculty and create 107 endowed faculty chairs and professorships. In 2013, UF was ranked the 14th best public university in the country. By 2018, it ranked 8th. Similarly, between 2013 and 2017, UF jumped from 50th to 30th among all universities in the United States—a stunning success by any measure.

UF officials know that UF's relationship with Florida's government has been key to that success. As the Chairman of UF's Board of Trustees recently said, "[w]e had fought so hard over the years to get funding so our faculty could have raises, so our students could have good housing, so our employees' families could have day care." ECF No. 45-4 at 15. "Think of everything we've been able to accomplish during the past five years" he continued, listing achievements, "[t]hese things were all made possible through the support of our state leaders." Id. at 15–16.

UF officials also know that conflict with Florida's government can jeopardize UF's success. In a September 2021 address to the Faculty Senate, President Fuchs warned that criticism of the State of Florida's COVID-19 response would "fracture the relationship between the university and the state government ... ultimately leading to a diminished or inability to impact future policies or decisions affecting the university." Kent Fuchs, President, Univ. of Fla., President's Report to University of Florida Faculty Senate (Sept. 23, 2021), at 2, https://tinyurl.com/3enua4kj.

In 2020, the Florida Legislature again took interest in the state university system, passing legislation requiring every state university to implement policies that, "[a]t a minimum, ... require employees engaged in the design, conduct, or reporting of research to disclose and receive a determination that outside activity or financial interest does not affect the integrity of the state university." § 1012.977(1), Fla. Stat. In response, UF adopted a "Conflicts of Commitment and Conflicts of Interest" policy to ensure that professors' activities do "not conflict, or appear to conflict, with their professional obligations to" UF. ECF No. 31-2 at 3.

The policy governs two types of conflicts. A conflict of...