by Neil H. Buchanan
The University of Florida found itself in an unwelcome spotlight this week. Under an unconvincing and evolving set of rationales, the university's administration had limited the ability of several UF professors to provide expert advice in legal cases challenging policies adopted by the current Florida legislature and governor. A Miami Herald article lays out the facts of the situation nicely.
As I will explain momentarily, these decisions and public relations blunders have already damaged the University of Florida's national and global reputation. As a professor at UF's Levin College of Law, that damage concerns me greatly, not only because of its effect on my colleagues but for the collateral effects that it will have on our students.
There is, unfortunately, no way to un-ring this bell. Damage has been done. The only question now is how quickly the university can change course and try to contain and mitigate the repercussions. We received part of that answer today, when the university reversed its policy and announced the formation of a task force to sort things out. Is that enough to make it all go away?
The short answer, unfortunately, is that reputations are difficult to build but all too easy to damage. Any harm to a reputation has lingering effects, even when the situation is corrected quickly. This case is especially unfortunate in that the damage comes not from something beyond the university's control. Indeed, the administration has engaged in what my students would call a "self-own," harming all of the stakeholders of our university for absolutely no reason. Damage control is now necessary, with the welcome reversal of this bad policy to be followed (one hopes) by clarifying the university's commitment to its own stated principles.
To begin, I want to offer an emphatic response to a claim that the university's administration made in its attempts to justify its now-stayed attempts to limit professors' testimony in cases where the State of Florida is the defendant. A university official claimed that "the university, as a public institution, is part of the state — therefore, [it] would be adverse to the university’s interests" to have UF professors "be paid to testify against the state" (emphasis mine).
The government of Florida is not "the state." My colleagues and I work to advance the current and future interests of the people of our state. We work for the people, not for the university's administration, not for the current legislature or governor, and not for anyone else who has a rooting interest in the lawsuits in question. The current occupants of Florida's democratic offices do not constitute The State of Florida, nor do their preferred policies. They are Florida's servants, and so are those of us who are privileged to do our work at the state's flagship campus at this moment in time. If we disagree with what those temporary officeholders have done, especially when we think that those policies harm Florida, it is our duty to serve the state by opposing those policies.
This notion of service to something beyond the powerful few who briefly hold power is well established in the public's mind. Even popular fiction provides vivid examples, such as the government advisor Varys in "Game of Thrones," who explained his willingness to serve a series of rulers by saying that he was not being disloyal by supporting a change in monarchs when conscience demanded. Instead, he explained: "I serve the realm." At another point, he put it this way: "You wish to know where my true loyalty lies? Not with any King or Queen, but with the people."
And this idea of service to the people writ large, not to the specific person who currently holds power or even to a subset of the people who might have voted a ruler into office, is hardly limited to fantasy worlds in books and television shows. It is in the very DNA of our constitutional democracy.
To take an example of surpassing importance, there was active discussion after last year's election about whether Donald Trump would attempt to use the military to hold power. The Pentagon is part of the Executive branch, after all, and the Constitution even states that each person who serves as President of the United States is Commander in Chief of the armed forces. Could Trump therefore have ordered the military to do his bidding?
Military leaders themselves quickly threw cold water on that idea, noting that military personnel swear an oath to the Constitution, not to the President. Soldiers, sailors, and all other service members promise to obey the Commander in Chief's orders, but only as guided by the legal rules governing the military. The Joint Chiefs of Staff issued a statement after the January 6 insurrection to confirm this distinction:
As service members, we must embody the values and ideals of the nation. We support and defend the Constitution. Any act to disrupt the constitutional process is not only against our traditions, values and oath, it is against the law.
"Any act" means any act, no matter who undertakes it. Members of the military are employees of the United States government, which is led by a president. Their duty, however, is not to do whatever the president says. It is to do their jobs, which involves protecting the interests of the United States under the rule of law, not unquestioningly obeying the person who sits for the moment in a mansion on Pennsylvania Avenue.
We professors have a very different role in society from the military, but in this regard, the standard of behavior is the same. We are engaged in something more important and more lasting than to serve the immediate goals of the people who hold political power on any given day. When we have insights about matters of public interest, we should continue to have the ability to do what we feel is necessary to, if you will, serve the realm.
Clearly, I feel passionately about the stakes in this dispute. But what if someone simply disagrees with me and says that, no, professors' contracts with their employer confer on that employer the ability to say, "You cannot use your expertise in ways that we deem to be against our interests"? Is this simply a matter of defining "the state" however one likes?
To put it differently, what if someone dismisses my argument as mere high-falutin' idealism? Are there real-world consequences to doing what the university has done? The answer is yes, very much so. Even a results-driven cynic should care about the practical impact of this mess.
To begin, the administration's policy was simply incomprehensible on its own terms. A university spokesman tried to make the policy seem less absolute by saying that "if the professors wish to [testify] pro bono on their own time without using university resources, they would be free to do so." But if one believes that arguing against the state's current government in a lawsuit is "adverse to the university's interests" because the university is part of the state, why is it acceptable for a professor to testify against the state without being paid? It is the testimony that is supposedly adverse, not whether the testimony is compensated. How does, "Don't be adverse to your employer's interest" become "Go ahead and be adverse, so long as you do it for free"?
And this is where the reputational damage to UF unavoidably becomes a major issue. When the world learns about an outrageous policy decision to limit what professors are allowed to say based on the political acceptability of our views, that is harmful to everyone involved with the university, and to the state as a whole. An indefensible and clumsy cover story only makes it worse.
When I accepted UF's offer to join its faculty in 2019, one of the things that I took great care to investigate was whether the state's political class was overstepping its role in university governance, or if it was likely to do so. Because moving to UF would mean leaving a private university for a public one, this was no small consideration for me. I have watched with dismay from afar over the years as anti-intellectual forces in the state governments of both Wisconsin and North Carolina have heedlessly harmed their once-great universities for political ends. Although both universities still stand, they are undoubtedly diminished in ways large and small, compared to a generation ago.
The University of Florida has recently been catching up with its peers. Although it has long been a member of the Association of American Universities, the preeminent group of research universities in the United States and Canada, UF has not been blessed with the longstanding reputation for excellence that schools like Wisconsin, North Carolina, Virginia, Michigan, UCLA, Texas or others have long enjoyed. Only recently has UF -- both the law school where I teach and the university as a whole in Gainesville -- been able to build a truly formidable reputation. Excellence builds upon excellence, and success breeds success. Although I (like almost everyone in higher education) am seriously skeptical of rankings systems, the UF administration -- and state politicians of both parties -- have recently reveled in the university's climb to the top reaches of national rankings.
I can say unequivocally that, had this scandal happened three years ago, I would have broken off negotiations with UF immediately and stayed where I was. Because I am now on the UF faculty, I will stay and try to do what is right; so this incident will not drive me away. But the fact is that UF is constantly searching for new faculty, both entry level future stars and established eminent scholars. Based on my informal inquiries, some of those people are already making the decision that I would have made three years ago, taking UF off their lists and looking elsewhere.
The process of recruiting the best faculty (and the best students as well) is extremely competitive. And to be honest, we at UF enter that competitive arena with some significant disadvantages. We have to listen patiently and good-naturedly to potential colleagues who are not sure how seriously to take "Florida Man" stories. We try to explain the realities of climate change and its possible effects on this most vulnerable mass of land that rises barely above sea level. And just this semester, I received word from a highly promising prospect that, because she is immuno-compromised, she could not watch the news reports about my state's COVID-19 response and feel comfortable moving to the Sunshine State.
Many of these conversations are with colleagues I have known for years, some of whom I count as friends. It is possible to explain to them why I surprised even myself by accepting UF's offer in 2019, and to add that although I wish that the state's leaders had dealt responsibly with the pandemic, it is still true that the city and county in which the university is located have done as much as possible to do better than that.
But this? I cannot lie about this, and it is nearly impossible to imagine how to downplay it with a straight face. I know without question that I will soon be receiving calls from senior colleagues that will go something like this:
Colleague at another university: Hey, so I've been mentoring this emerging scholar who is on the job market this year. Do you remember _______?Me: Absolutely. She impressed everyone, as you surely know.Colleague: Right, she told me that she has received an offer from UF. As you know, she also has offers from ____, ____, and _____.Me: Sure. Anybody that good is going to have a lot of offers. Even so, we thought that we'd be able to make it clear that we'd be her best choice. In fact, I talked to her earlier today to make our case, and I was already going to call you as part of our full-court press.Colleague: Yeah, that makes sense. But here's the thing ...Me: Uh ....Colleague: You know this thing that's hit the news about the university stopping professors from testifying "adverse to the state," or something like that?Me: Uhhh ...Colleague: Well, this is very worrying to me, and it understandably scares my mentee, so I'm going to tell her to accept her next-best offer, where they're not doing this nonsense.Me: Oh, don't do that!Colleague: You know you'd do the same thing under the circumstances. Anyone would. But feel free to make the case to me that she should still consider UF.
There were two possibilities at that point, depending on what the university's administration did next. If they had dug in their heels, I would have had to say to my colleague:
Me: I can't lie. They aren't backtracking or changing this very bad decision. I think there are still great things about UF, and I'm still glad I'm here, but this not only looks bad, it is bad. I hope your mentee will still see what's great here, but there's no question that this weighs heavily against us.
Because the university has at least temporarily wised up, changed its policies, and is trying to manage the fallout, my conversation will continue like this:
Me: Well, that was a big blunder, no doubt about it. I'm happy to report, however, that rationality has prevailed. The policy's been dropped, and we're back to doing things the way any well run university should be run.
Colleague: That's good news, and I'm glad to hear it. But what if they bring back the policy later, or what if they do something that is equally bad or worse? This incident does not exactly inspire confidence, from anyone looking from the outside, in your state or your university. UF now has taken a reputational hit that people are going to remember. How do we know that this was a one-time thing? I mean, this "task force" thing could still go sideways.
And by the way, national reputational ratings are a key part of those national rankings that everyone at UF has been so excited about. The damage will not be limited to recruiting faculty and students. It will affect our ranking directly.
Me: Ummmm ...
All of this is why the headline to this column asks, regarding the damage from this incident: "How much can it be mitigated?" rather than "How can it be undone?" The fact is that this will linger, so there is simply no way to make it all better right away merely by having the university see the light now. That was an essential step, but it will take a lot more than that to regain our footing and start to rebuild what was lost, much less to move forward.
Again, UF did not come into this with the decades of reputational capital from which other top universities can draw when trouble arises. When people think about, say, the University of Texas at Austin, no one has to be reminded: "You know that UT is practically a public Ivy"; so some bad PR there is not going to hit as hard as it might. We at UF do not have the advantage of people simply presuming excellence when they hear our name, although we were making significant strides in that direction.
The people of Florida were in the very early stages of enjoying what Texans, Michiganders, Virginians, and Californians have long taken for granted, but UF is still in the position of being a bit of an upstart. We have been building up our reputational capital, and we could ill afford to fritter it away -- certainly not for something as indefensible as this. Most of the students, faculty, staff, and supporters of UF will continue to work toward building on past successes, hoping that this will be a bad memory sooner rather than later. Some, however, will leave, and others who could have enhanced our excellence will choose to stay away.
And that is adverse to the interests of the state of Florida.