‘I’m Speechless’

An effort by the University of Florida to deny professors the ability to testify in litigation against the state extends beyond the previously known political-science faculty members, whose restrictions were revealed in a court filing on Friday. Administrators denied requests from a fourth professor who had asked to participate in litigation supporting mask mandates against Florida in August, too, The Chronicle first reported Tuesday. He said he would not have been compensated for this participation.

The professor, the pediatrician Jeffrey L. Goldhagen, was asked to testify and serve as a declarant in litigation that followed Gov. Ron DeSantis’s executive order that forbade mask mandates in schools as the Delta variant of Covid-19 tore through the state. Goldhagen is chief of the division of community and societal pediatrics at the University of Florida‘s College of Medicine, in Jacksonville, and a professor in pediatric palliative care. Goldhagen said he would have spoken about why masks work and why children need protection from the virus.

Goldhagen served as a declarant — someone who files a statement that they declare to be true — in the two lawsuits anyway, he said. He asked a lawyer in the third lawsuit to subpoena him for his testimony, but the lawyer, Charles Gallagher, did not, citing a lack of time. Gallagher confirmed Goldhagen would not have been paid for his testimony. The case is now in appellate court.

A spokeswoman for the University of Florida did not respond to questions on Tuesday on how the decisions about Goldhagen’s testimony had been reached, and whether other faculty members had also received rejections. The Miami Herald on Tuesday identified four University of Florida law professors who “did not have their name affiliated with their university” as they signed a “friend of the court” brief challenging state law. They did so after an administrator had said they would need to indicate they were signing in their “individual capacity.”

Goldhagen’s case appears to contradict the university’s earlier explanation for why the political-science professors’ testimony was blocked. The campus’s president, W. Kent Fuchs, and provost, Joe Glover, wrote on Monday night that the political-science professors would be “free” to testify “pro bono on their own time without using university resources.” Goldhagen wrote in the disclosure he submitted to the university that he would not be using university resources and indicated, when asked if he would be paid more than $5,000 annually, that he would not. He told The Chronicle that administrators never separately asked him if he would be paid at all.

In an interview on Tuesday, Goldhagen said the denials had hurt on a personal and professional level. “This was a fundamental violation of the roles and responsibilities of universities, in particular, public universities,” he said. “It was frankly the first time in my 40-year career where I was forced into a situation to disregard a moral and ethical standard that I’d always maintained for myself. … It caused me more internal turmoil than I have ever experienced.”

He said he was speaking out now because “it is not hyperbole how much is at stake here.”

At the foundation of American universities is the idea that faculty members have the freedom to study what they want and share that knowledge without constraint. In Gainesville, this appears to come with a caveat: not when it challenges the politicians in power.

And the institution is now feeling the pressure. First, scores of political-science faculty signed a sharp rebuke of the decision. Then, Florida’s accreditor, the Southern Association of Colleges and Schools Commission on Colleges, said it would investigate whether UF had violated accreditation standards. On Tuesday, calls escalated to Washington: Democrats representing Florida in Congress demanded answers from Fuchs, too. The university has said it would review its conflict-of-interest policy.

Illustration by The Chronicle; photos from AP Images, Gainesville Sun/Imagn

The university’s response to the controversy suggests the professors’ requests violated the campus’s new conflict-of-interest procedures. But that’s not entirely clear.

The university piloted a new system for reporting outside activities and financial interests in 2019, a critical time for campus research. The Trump administration, national-security experts, and members of Congress had expressed concerns about research collaborations with China. Many campuses responded by calling for more reporting of outside work. At the University of Florida, an explanation of a new conflicts-of-interest program to oversee the new system, called UFOLIO — short for UF Online Interest Organizer — notes that research institutions have faced “increased scrutiny and concern from federal agencies over the threat of foreign influence in taxpayer-funded research” since 2018.

In March 2020, Florida lawmakers passed a higher-education law that carried harsh penalties for employees who failed to report outside activities and interests. The next month, the university released guidelines on what types of activities might present scrutiny. “High risk international issues” and business with the university, for example, would be subject to the most scrutiny and could be rejected, according to the guidelines. Serving as an expert witness “for a case that is not likely to adversely impact UF’s interests” is a “low-scrutiny” activity and would be “generally approved, absent unusual circumstances.”

To Meera Sitharam, a vice president of UF’s faculty union and a chief negotiator, UFOLIO was not a welcome development. It seemed like a way for the university to “police” faculty members’ outside activities, she said, and the extent to which professors were expected to report their endeavors became a major fight during negotiations for the collective-bargaining agreement, which was eventually ratified in June 2021.

Eventually, they ended up with a process that the union could live with. (The union covers professors in some but not all divisions.) Generally, faculty members must report via UFOLIO activities they undertake for an outside entity or person that is not part of their assigned UF duties but is related to their expertise, like being an expert witness. They also have to report other things, like if they have any financial interest in an entity that could create a conflict of interest and if they’re a candidate for public office.

Under the new bargaining agreement, disclosures must be approved or denied within 30 days. If denied, the faculty member will receive a written explanation. That explanation should indicate if the denial is based on an “insufficient disclosure” of information, an “impermissible conflict of interest,” or an “impermissible conflict of commitment,” the agreement says. During negotiations, the bargaining team pushed to make “conflict of interest” and “conflict of commitment” more precise than they’d been in the previous agreement.

“We put a lot of effort into carefully defining those things and limiting potential damage to faculty,” Sitharam said.

In October, the political-science professors Michael McDonald, Daniel A. Smith, and Sharon Austin were all denied their requests to be expert witnesses, according to emails included in a court filing. David E. Richardson, dean of the College of Liberal Arts and Sciences, reviewed Smith’s UFOLIO submission and rejected it, reasoning that, “Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida.” Days later, McDonald and Austin were both told that their requests constituted an “impermissible conflict of interest.”

“UF will deny its employees’ requests to engage in outside activities when it determines the activities are adverse to its interests,” wrote Gary Wimsett, assistant vice president for conflicts of interest. “As UF is a state actor, litigation against the state is adverse to UF’s interests.”

The denials provoked a tidal wave of outrage from professors and higher-ed observers across the country who condemned the university for what they considered an abandonment of academic-freedom and free-speech principles.

And, Sitharam said, the denials contradict the collective-bargaining agreement. Per the agreement, a conflict of interest is defined as:

• A “private interest,” meaning a concrete financial or material interest, or relationship to a relative that would reasonably appear to “adversely influence a faculty member’s actions, judgment or decisions” required to carry out the faculty member’s assigned duties, like teaching or research.
• Or, a “private interest” or relationship to a relative that would reasonably appear to “create an unlawful conflict with the faculty member’s position as a public employee ... which includes a situation in which regard for a private interest leads to disregard of a public duty or interest.”

Essentially, Sitharam said, your outside activities can’t affect the way you perform your work for the university, and you can’t use your position as a public employee to do favors for other people or disregard your public duty.

The university’s conflict-of-interest policy defines the term similarly, as something that “occurs 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.”

Sitharam said she doesn’t see any grounds on which the professors’ requests should have been denied for being a conflict of interest. The union, she said, will be filing a grievance. (The university did not respond to a question asking if the denials conflict with the collective-bargaining agreement.)

In its denials, the university seemed to emphasize something separate from a traditional conflict of interest: how expertise might harm the university. So where did that “adverse to its interests” language come from?

Variations on the phrase show up in a few places in university materials. The conflicts-of-interest program has noted that providing expert testimony, with or without compensation, may “compromise sensitive UF research data or otherwise adversely impact UF interests.” Supervisors who review disclosures are told to consider, among other factors, whether the activity “would adversely impact UF,” according to an online UFOLIO training. When reporting an outside activity, faculty members who want to engage in legal consulting are asked to “please explain whether you think this activity/case could in any way place you in a position that is adverse to the interests of the University of Florida,” according to the new faculty bargaining agreement.

That and other questions were agreed to during the bargaining process. According to Sitharam, the university’s representatives argued that such a query is necessary because faculty members might not think ahead and may realize too late the unintended consequences of their outside activities.

The union was OK with that language, said Sitharam, in part because there are situations in which a faculty member might undertake an activity that is adverse to UF’s interests that could present a conflict of interest. Just not in this “weird, roundabout way” in which anything a faculty member does against the prevailing political ideology in Florida is considered against UF’s interests, she said.

Goldhagen, a member of the medical-school faculty and therefore not subject to the union contract, had a similar experience to the three political-science professors’. He learned in August that Wimsett, the assistant vice president, had rejected his requests to participate in the litigation.

“I am not able to approve this activity,” Wimsett wrote. “Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida.”

He later elaborated, saying the university denies requests to engage in outside activities when those actions are “adverse to its interests.” Wimsett wrote, “As UF is an extension of the state as a state agency, litigation against the state is adverse to UF’s interests.”

But Goldhagen had addressed this very issue in his previously submitted disclosure, reviewed by The Chronicle. He was asked whether he thought the case could place him in a position that is adverse to the university’s interests.

“This activity is consistent with the mission of the University of Florida and University of Florida College of Medicine,” he wrote. “The College of Medicine strives to improve health care in Florida, our nation, and the world through excellence and consistently superior leadership in education, clinical care, discovery, and service.” And then he quoted from the University of Florida’s mission: “Service reflects the university’s obligation to share the benefits of its research and knowledge for the public good.”

The university did not respond to The Chronicle’s questions about the cases or how it defines its interests.

To experts in higher education, the move to bar faculty members from testifying and participating in litigation is the latest signal that policy making at Florida, including on classroom management and instruction, is enmeshed with the interests of state politicians.

Fuchs, the university’s president, told colleagues last year that holding more virtual classes could lead to state budget cuts, and he has said he “literally” did not have the power to mandate masks on campus.

That the denial of faculty testimony has happened in another instance struck Barrett Taylor, an associate professor of counseling and higher education at the University of North Texas, as significant, even after a decade of examples of politicization seeping into public university governance.

“That really suggests that this might be a more aggressive, more invasive strategy than I had anticipated,” he said. “The political pressures coming at higher ed right now are formidable, they’re intense, and they’re very different.”

The very idea that there is one “interest” of the university struck Taylor as an important escalation. “To assert that there is only one interest, and that something might be antithetical to it, is a question at the heart of self governance.”

What stands out to many observers in this case is the extension of political interests into research and speech, an undermining of the norms that have long governed the activities of professors.

“I see it as a threat to an independent university, an independent academic system,” said Brendan Cantwell, an associate professor of higher, adult, and lifelong education at Michigan State University. “The idea that a state government through a state university determines the research and public-engagement activities of a professor is… is… I’m speechless that it’s happened.”

To Cantwell, the fact that there was a fourth professor establishes a “pattern” of “suppressing faculty engagement in areas of their expertise when it comes to issues that matter to the governor and the Republican Legislature.”

Goldhagen, the pediatrician, said the erosion of this independence is a “substantial” development that marks a “profoundly critical point in time.”

“It’s not just me being denied the ability to testify,” he said. “It’s about the role and responsibility of the university, it’s about truth, it’s about ethics, it’s about morality, it’s about the capacity of a single person or a small group of people to basically discount and dismantle the mission of a university.”