George Justice, Arizona State University

The University of Florida barred three of its professors from serving as paid experts in a Florida voting rights case – sparking outrage within academia and in the news media. The university said allowing its professors to testify against the state was at odds with its interests. Critics say the move puts politics ahead of academic freedom. Here, George Justice, an English professor and former college dean, offers insight into the dynamics at play in the controversy.

Why do professors need permission to be paid experts?

Many universities, including the University of Florida, have policies that ask faculty to seek approval for “outside activities.” This is true for both paid and unpaid activities.

Those who work at research universities like the University of Florida have job responsibilities outside of teaching. Tenured and tenure-track faculty spend less than half their time on direct instruction; they often teach two courses per semester. More than half their time, therefore, is allocated to research and service to the profession.

Since professors have a lot of discretion in when they work, they have a lot of opportunities to moonlight – whether in jobs related to their expertise or not. In doing so, in theory they might neglect their official duties. Unapproved activities would be considered a conflict of their commitment to the job.

Universities therefore develop policies for faculty to avoid both conflicts of commitment and conflicts of interest. At the University of Florida, a conflict of interest takes place “when a University Employee’s financial, professional, commercial or personal interests or activities outside of the University affects, or appears to affect, their professional judgment or obligations to the University.”

Can a public university order faculty not to speak out publicly or in court?

Academic freedom provides college and university faculty members the right to conduct research and teach students in a manner consistent with their professional knowledge. But the principles of academic freedom do not protect everything a tenured faculty member might say. This is true whether inside or outside of the university.

The landmark 1940 Statement of Principles on Academic Freedom and Tenure – made by the American Association of University Professors and still in use today – states that: “Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.” However, the statement says research done for “pecuniary return” – that is, in exchange for money – “should be based upon an understanding with the authorities of the institution.” In other words, universities can’t tell professors how to do their research as long as they fulfill their other duties, such as teaching. But when it comes to getting paid for their research, they need to get permission from the university where they work.

The University of Florida now claims that this is an issue of “pecuniary return” for faculty research. University spokesperson Hessy Fernandez stated that the university is merely restraining these three experts from taking paid work outside their university duties.

“If the professors wish to do so pro bono on their own time, without using university resources, they would be free to do so,” Fernandez has said.

Fernandez’s statement contradicts the university’s previous justifications for preventing the faculty to testify as experts. The university initially asserted that there was a conflict of interest rather than commitment: “As UF is a state actor, litigation against the state is adverse to UF’s interests.”

Now, they seem to be claiming a conflict of commitment, defined in their standard policies as “when a University Employee engages in an Outside Activity, either paid or unpaid, that could interfere with their professional obligations to the University.” The university has not explained in what way testifying as expert witnesses would violate the professors’ professional obligations.

Have other scholars faced this kind of university restraint on their speech before?

Not that I am aware of. Experts quoted in news reports call Florida’s denial of the faculty members’ request to testify on the basis of their scholarly expertise “unprecedented.” They say this is especially so since it’s a “prior restraint on a professor’s ability to speak.”

“Prior restraint” refers to censorship even before someone has spoken or published their words. It implies the requirement of a formal license in order to speak. By focusing its latest comments on the prospect of the faculty members being paid for their work as expert witnesses, I believe the university is trying to avoid accusations of exercising prior restraint.

Does tenure protect professors who defy their university?

Tenure does not protect faculty members who defy basic rules of employment that require them to fulfill their specified job duties.

Tenure does protect faculty members’ right to speak up on matters of their expertise. This includes speaking as expert witnesses. Many universities have specific language for this. For instance, Oregon State University has a policy that states faculty can serve as expert witnesses in administrative or judicial proceedings in which the Oregon State Board of Higher Education and Oregon State University are not parties, as long as they do so “in a manner consistent with the OSU Policy on Outside Professional Activities, and consistent with any college, unit, or department restrictions on outside consulting or conflict of interest policies.”

It would be a high bar for the University of Florida to jump over to claim that these faculty members would be violating their commitment to their research and their students by offering their expert testimony for this particular case, which challenges a recent law on voting rights in Florida, a subject for which all three are experts.

Identifying the university’s interest with the interests of the current governor – referred to as “the executive branch” in the university’s communications with the scholars – runs counter to the history and practice of public higher education. It also contradicts the more specific protections of academic freedom.

Is this action a threat to academic freedom?

It is a big threat. This is one of two recent challenges to tenure and academic freedom in Southern states. The other is a change to tenure rules in state universities in Georgia. The changes there allow administrators to fire tenured faculty – who have a university guarantee of a job for life – without a hearing before a faculty committee. Some ask: If administrators by themselves can decide to revoke tenure, does tenure really exist?. In the cases of both Florida and Georgia, university administrations are taking on responsibility for managing what faculty do and say outside of established principles of faculty self-governance.

The University of Florida financially supports The Conversation.

George Justice, Professor of English, Arizona State University

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