Thursday, January 27, 2022

How Long Will the Recent Victory for Free Speech at the University of Florida Last?

by Neil H. Buchanan
 
In what can only be described as a scorching ruling, a judge in the U.S. District Court for the Northern District of Florida ruled last week that the University of Florida (UF) continues to be in violation of the First Amendment.  Formally, because Chief Judge Mark E. Walker's 74-page ruling granted a preliminary injunction, the judge did not rule on the ultimate question.  Even so, only the most obtuse reading of his scathing analysis would leave any doubt about where this case is going in his court.

I add those words -- "in his court" -- because this is almost certainly going to end badly for the professor-plaintiffs.  Before explaining why, it is worth recalling what is at stake in this case, which generated very negative worldwide coverage for my university late last year.  As I explained in two columns in November 2021, UF's reputation has taken a major hit.  Last week's ruling makes it clear that the administration's effort to clean up the mess was a content-free rewriting of an unacceptable policy.

This means that, no matter what ultimately happens in the courts or in the state capital, UF has squandered what was in fact a golden opportunity.  Had they acted wisely, the would not have stopped merely at undoing the damage by returning to the status quo ante.  They would also have used the university's time in the global spotlight to say: "We get it.  That was a mistake, and now we're going to become a global leader in protecting academic freedom."  Sadly, as Walker's opinion makes clear, the university's administration appears to have tried to rearrange the deck chairs on a sinking ship, not even trying to get back to where they had started, much less to make any effort to adopt a better approach.

And the global spotlight is not being kind.  The editorial page of The Washington Post -- hardly a "lefty" group, though one with an obvious interest in First Amendment issues -- highlighted the UF case in a lead editorial earlier this week.  Their blunt conclusion: "Here’s an idea: recognize that the mission of a university is to promote knowledge and understanding and not cower to the interests of the politicians in power."
 
Strong words, and well deserved.  Here, I will explain the part of the case that the plaintiffs lost, the reasons that they won the more important part of the case, and finally why this is going to be only a temporary victory for academic freedom -- in Florida and, soon, at state universities around the country.

Chief Judge Walker declined to issue an injunction to prevent the university from enforcing a policy requiring that professors who sign onto amicus briefs to specify that they do so in their individual capacities and not purport to speak for the university.  This is of special interest to me, because in 2020 I signed onto a brief that opposed a position favored by Florida's political powers (the substance of which I will describe later), and I told the organizers of that brief that the policy applied to me.

Walker specifically mentions that brief in his ruling, noting that four of my law school colleagues also signed on, with footnotes specifically appended to their names containing the required disclaimers.  The ruling does not mention (most likely because the judge did not notice) that another colleague and I also signed the brief and were identified by our positions at UF.  Although we had also made clear to the organizers that we were subject to the policy requiring a disclaimer, there were no footnotes specifically appended to our names.

I should say that, when I was told that UF required such a disclaimer, I did not give it a second thought.  I have heard people make such disclaimers at the beginning of seminar talks for decades, and although it seemed a bit absurd to think that anyone signing an amicus brief would be speaking for their employer, there was nothing wrong with restating the obvious.
 
Indeed, a very quick Google search for such disclaimer policies turned up NYU's policy, which states in pertinent part: "The faculty member can identify his or her title and affiliation with the Law School as long as the brief or report clearly states that the title and institutional affiliation are provided for identification purposes only and that the views expressed should not be regarded as the position of the Law School."  Although the brief that I signed in 2020 was also signed by an NYU Law professor, her name also lacked the footnote-specific disclaimer.  In any event, reading NYU's policy confirmed to me that there was nothing to see here, especially because NYU is a private institution and thus would not have adopted such a policy due to pressure from politicians with control over the law school's budget.

And the judge in the current UF case agreed, declining to issue an injunction against the sign-so-long-as-you-disclaim policy.  After taking a completely unnecessary and gratuitous swipe at the dean of UF Law, the judge said that the policy was vague, but "[the] Court offered to allow the parties to conduct discovery. So Plaintiffs could have developed the record on this issue. But they did not, and so they are stuck with the record they have."
 
More importantly, "UF provided its general counsel’s affidavit, which affirmatively states that the policy on signing amicus briefs permits professors to list their UF affiliation for identification purposes only, and thus does not require professors to drop their titles and academic affiliation entirely."  Judge Walker then noted that even the plaintiff's own lawyers agreed that the policy as clarified did not present a First Amendment violation.

Again, however, that was merely the warmup act.  The university lost -- and lost badly -- on the pernicious policy that UF had recently created whereby the UF administration "will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests. As UF is a state actor, litigation against the state is adverse to UF’s interests."  As I explained at length in my first column discussing this situation last November, this is a shocking formulation of what "the state" is.  UF's policy treats itself as tied to the interests of the politicians whose actions are challenged in court.  It is as close to a "l'etat c'est moi" statement as one could imagine.

But Judge Walker did not go with pre-revolutionary France for his analogy.  Instead, his ruling opens with a direct and extended comparison between what the Chinese government has done to the University of Hong Kong (UHK) and what Florida's state government is doing to UF.  He noted the pride that UF's leaders have taken in our rise in the rankings, then acidly notes that UHK is higher ranked than UF in the global rankings.  Despite UHK's history and excellence,  the administrators and professors there are now under extreme pressure to toe the party line.
 
Drawing on yet another country's history, Walker agrees with the plaintiffs that UF's administrators had engaged in an apparent act of vorauseilender Gehorsam, “pre-emptive subservience” or “anticipatory obedience," by which "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."  In short, like mafia dons, the politicians did not even need to ask.  Everyone knew what to do, and they did it.

Although I do wish that the judge had directly rebutted the equating of the "interests of the state" with the interest of the current officeholders of the state government, I can have no complaints with the analysis that he did provide.  The ruling is a master class in legal argument, covering the full range of issues.  By far the most important, I think, is his determination that the revisions to the conflict-of-interest policy that an emergency task force issued shortly after the controversy made headlines had not in fact changed the underlying substantial constitutional violation.

This is key to the story for two reasons.  First, on its face, the revised policy looks very strong.   The ruling summarizes the new policy thusly:
[T]he recommendations establish (1) a “strong presumption” that UF will allow professors to serve as experts in litigation involving the State, (2) that UF can only overcome that presumption “when clear and convincing evidence establishes that such testimony would conflict with an important and particularized interest of the university,” and (3) an appeals process.
Again, that looks good!!  When I first read the revised policy, I took heart that the university was moving in the right direction.  I also took for granted that there would be adequate definitions of key terms, most importantly what "an important and particularized interest of the university" means.  Sadly, as Walker makes clear, not only did no such definition exist, but when he repeatedly pressed the university/state's lawyers on the issue during the legal proceedings, it became clear that the university continued to reserve to itself the unchecked power to decided what its own interests are and to deny future speech by UF professors arbitrarily.

Analogizing to the criminal context, the judge wrote:
What good is the presumption of innocence and burden of proof beyond a reasonable doubt in a criminal bench trial if the judge’s factfinding is not guided by a “narrow, objective, and definite” standard—i.e., the elements of the crime?  [I]f the court operates with the same unbridled discretion as UF, none of these protections cabin the court’s discretion to decide after the fact what actions are or are not a crime. In other words, such meaningful protections lose all meaning when a decision maker is free to choose its own standard to apply to the decision before it.
Again, having been trained as a lawyer, I looked at the restrictive language of the revised policy and was duly impressed.  What Walker determined beyond any doubt, however, was that the procedural reassurances were not backed up by clear limitations on the underlying power that can be exercised.  And that, quite obviously, is a constitutional problem.

The second reason that this is key to the story, however, moves us in the direction of understanding why I am predicting that this excellent ruling will soon be tossed aside.  A motivated appellate court is going to look for fig leafs to overrule Chief Judge Walker, and the strong procedural language in UF's revised conflict-of-interest policy will serve that purpose.
 
That is, it will be relative child's play to an appeals court to lean hard on the procedural language and then say that obviously such protections will prevent UF from being arbitrary and dictatorial.  Aren't "important and particularized" interests going to come up only rarely? they will ask.  Indeed, Walker's ruling quotes UF's outgoing president as saying "that, under the new policy, denials would be rare."  What, a motivated appeals court will ask, are the professors whining about?

But why presume that the appellate court will be hostile?  As it happens, the amicus brief that I signed in 2020 was relevant to a challenge to a new Florida law that gutted a ballot proposition that had, at long last, restored voting rights to ex-felons in this state.  The tax professors' brief made clear that what Florida's Republican-dominated political branches had done to negate the proposition amounted to a poll tax.

In the court below, the presiding judge had ruled against the state.  That judge was none other than Mark E. Walker, and the Eleventh Circuit made quick work in reversing his ruling along party lines.  The UF case is just as politically salient as the ex-felon case, if not more so, and there is no reason to think that the appellate court will do the right thing this time.  Even if they do, we know what would await at the Supreme Court level.

Moreover, Walker's opinion could be disparaged for stridency.  He was absolutely brutal in his descriptions of the failures by the state's lawyers, calling them unprepared in the extreme, arrogant, and worse.  He backed up those conclusions, but it will not be difficult to dismiss him as a partisan crank.

In short, those of us who would like to have seen UF's administration mitigate the damage and then take extra steps to more than undo that damage have already been disappointed.  Judge Walker's opinion could be used constructively to bring the university into compliance with the Constitution and simply with good sense.  Instead, it appears that the decision makers at the highest levels have decided to go to the mattresses.  I hope that I am wrong, but these latest developments speak for themselves.  Unfortunately, a federal district judge -- even an excellent one -- will not be able to save UF's administrators from undermining the university's greatness.