Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
----------------------------------------- x
SHARON WRIGHT AUSTIN, MICHAEL MCDONALD, :
DANIEL A. SMITH, JEFFREY GOLDHAGEN, TERESA :
J. REID, and KENNETH B. NUNN, :
: 21-cv-184-MW-GRJ
Plaintiffs :
v. : AMENDED COMPLAINT
:
UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, :
the public body corporate acting for and on behalf of the :
University of Florida, W. KENT FUCHS, in his official :
capacity as President of the University Florida, JOSEPH :
GLOVER, in his official capacity as Provost of the :
University of Florida, and LAURA ROSENBURY, in her :
official capacity as Dean of the Fredric G. Levin College of :
Law, :
Defendants. :
----------------------------------------- x

Plaintiffs Sharon Wright Austin, Michael McDonald, Daniel A. Smith, Jeffrey

Goldhagen, Teresa J. Reid, and Kenneth B. Nunn (collectively, “Plaintiffs”), by and

through the undersigned attorneys, file this Amended Complaint for injunctive and

declaratory relief against Defendants University of Florida Board of Trustees, W. Kent

Fuchs, in his official capacity as President of the University of Florida, Joseph Glover, in

his official capacity as Provost of the University of Florida, and Laura Rosenbury, in her

official capacity as Dean of the Frederic G. Levin College of Law (collectively,

“Defendants”).

NATURE OF THE CASE

1. The University of Florida is a public research institution with a mission “to

share the benefits of its research and knowledge for the public good.” Contrary to that

goal—and to foundational principles of academic freedom and free speech—it has

 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 2 of 27

adopted a policy of censoring faculty members who participate in lawsuits against the

State of Florida’s policies.

2. Plaintiffs are six full-time professors at the University who were asked and

sought the University’s permission to participate in litigation challenging laws on voting

rights and COVID-19 public health measures. The University denied Plaintiffs’ requests

for one reason: Plaintiffs wanted to use their experience and expertise to support Florida

citizens who challenged the State of Florida, rather than backing the State’s position.

3. Plaintiffs’ job as public university professors and researchers is not to be

mouthpieces for the government’s point of view. It is to develop and share their

academic knowledge and expertise with the people of Florida while upholding the

University’s values and fulfilling their oath—taken by all public employees in the State—

to “support the Constitution of the United States and of the State of Florida.”

4. Nor did Plaintiffs surrender their constitutional rights when they became

public employees. By discriminating against Plaintiffs based on the viewpoints they wish

to express and by seeking to prevent them from speaking on issues of overwhelming

public importance, the University of Florida violated Plaintiffs’ rights under the First

Amendment.

5. The University will continue to do so if it is not stopped. Facing a

firestorm of nationwide criticism, the University agreed to let Plaintiffs proceed with

their already-planned testimony in pending cases. But the University’s unconstitutional

conflict-of-interest policy remains in place, giving the University unfettered discretion to

stifle speech that it deems “adverse” to the State’s political interests.

2
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 3 of 27

6. Unless and until the University’s unconstitutional policy is rescinded,

Plaintiffs’ First Amendment rights and academic freedom—and those of every University

of Florida faculty member—remain at stake.

PARTIES

7. Plaintiff Sharon Wright Austin is a Professor of Political Science at the

University of Florida. Professor Austin has been a member of the University faculty

since 2001. Her scholarship and research focuses on African American mayoral

elections, African American and Caribbean American political relationships, rural

African American political activism, and African American political behavior. Professor

Austin has authored books on African American political participation and published

numerous articles on related topics. In addition, she was until recently the Director of the

University’s African American Studies program.

8. Plaintiff Michael McDonald is a Professor of Political Science at the

University. Professor McDonald has been a member of the University faculty since

2014. His research focuses on elections, including voter turnout and eligibility. He has

consulted on redistricting measures and served as an expert witness in lawsuits

concerning elections in states around the country. Professor McDonald is also a co-

principal investigator on the Public Mapping Project, which encourages public

participation in redistricting.

9. Plaintiff Daniel A. Smith is a Professor of Political Science and Chair of

the University’s Political Science Department. Professor Smith has been a member of the

University faculty since 2003. His research examines the effects of ballot measures,

campaign financing, redistricting, and electoral laws on voting and political participation

in the United States. Professor Smith has served as an expert witness in a number of

3
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 4 of 27

lawsuits concerning voting rights, ballot measures, campaign finance laws, and

redistricting. He has also testified before Congress and the state legislatures of Colorado

and Florida on elections issues.

10. Plaintiff Jeffrey Goldhagen is a Professor of Pediatrics and the Chief of the

Division of Community and Societal Pediatrics at the University of Florida College of

Medicine. Professor Goldhagen has been a member of the University faculty since 1993.

He focuses on community-based pediatrics and public health services. He serves as the

Medical Director for the Partnership for Child Health, the President of the International

Society for Social Pediatrics and Child Health, and is the co-founder of the Population

Health Consortium of Northeast Florida, which was formed in 2020 to respond to the

COVID-19 pandemic. Professor Goldhagen has served as an expert witness in litigation

relating to lead poisoning of children. He has also served as the Director of the Duval

County Health Department and the Medical Director of Cleveland, Ohio’s Department of

Public Health.

11. Plaintiff Teresa J. Reid is a Professor at the University of Florida Fredric

G. Levin College of Law (the “Law School”). Professor Reid has been a member of the

University faculty since 1987. Her areas of expertise and teaching include the death

penalty, legal writing, appellate advocacy, legal ethics, legal professionalism, evidence,

and mediation. She has presented numerous lectures and performed pro bono work on

these topics, including by signing on to amicus curiae briefs (otherwise known as friend-

of-the-court briefs).

12. Plaintiff Kenneth B. Nunn is a Professor at the Law School. Professor

Nunn has been a member of the University faculty since 1990. His areas of teaching and

4
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 5 of 27

expertise include criminal law, criminal procedure, African American history and the

law, race and the justice system, and law and cultural studies. Professor Nunn has served

as a member of the Innocence Commission of the State of Florida, which was charged

with identifying causes of wrongful convictions in the State and recommending changes

in legislation, court rules, and law enforcement practices to reduce the incidence of

wrongful convictions. He has also authored numerous academic articles, given scholarly

presentations, and signed amicus briefs on issues related to his fields of study.

13. Defendant University of Florida Board of Trustees is the public body

corporate of the University. It sets policy for the institution and serves as the institution’s

legal owner and governing board.

14. Defendant W. Kent Fuchs is the President of the University. As President,

Defendant Fuchs is responsible for the general administration of all University activities.

Defendant Fuchs is being sued only in his official capacity.

15. Defendant Joseph Glover is the Provost of the University. As Provost,

Defendant Glover is the chief academic officer and the second highest-ranking officer of

the University, acting for the President in his absence. Defendant Glover is responsible

for: supervising the allocation of academic resources; improving instruction and

coordinating instructional activities; developing and improving research activities;

evaluating University academic activity; establishing the University’s policy with respect

to employment, promotion, and tenure of academic faculty; overseeing the University’s

Conflicts of Interest Office; and implementing the University’s Affirmative Action/Equal

Opportunity Program. Defendant Glover is being sued only in his official capacity.

5
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 6 of 27

16. Defendant Laura Rosenbury is the Dean of the Law School. In that

position, Dean Rosenbury has been tasked with enforcing the University’s Conflict of

Interest Policy as it applies to Law School professors. Defendant Rosenbury is being

sued only in her official capacity.

JURISDICTION AND VENUE

17. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress

deprivation under color of state law of their rights secured by the First Amendment of the

United States Constitution.

18. This Court has jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ claim arises under the Constitution and

laws of the United States.

19. This Court has personal jurisdiction over Defendants, who are sued in their

official capacities as officers of the State of Florida or its political subdivisions.

20. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) because

Defendants perform their official duties in this judicial district at the University’s campus

in Gainesville, Florida. Venue also is proper in this Court under 28 U.S.C. § 1391(b)(2)

because a substantial part of the events that give rise to Plaintiffs’ claim occurred in this

judicial district.

21. This Court has the authority to enter a declaratory judgment and to provide

preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal

Rules of Civil Procedure and 28 U.S.C. §§ 2201–2202.

6
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 7 of 27

FACTUAL BACKGROUND

The University Adopts a Policy Giving It Unbridled Discretion to Prohibit Faculty

from Speaking Out Against the State.

22. The University requires its faculty members to get its permission before

engaging in certain activities. The current version of the University’s Conflicts of

Commitment and Conflicts of Interest Policy (“the Policy”), which took effect on July 1,

2020, requires faculty to file a request for permission on the University’s online conflicts

system (“UFOLIO”) each time they seek to participate in an “Outside Activity,” which it

defines as “any paid or unpaid activity . . . which could create an actual or apparent

Conflict of Commitment or Conflict of Interest.”

23. The Policy provides little clarity as to what constitutes a “Conflict of

Commitment” or a “Conflict of Interest.” It defines a “Conflict of Commitment” as “an

Outside Activity, either paid or unpaid, that could interfere with the[] [employees’]

professional obligations to the University.” It defines a “Conflict of Interest” 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 judgement or obligations to the University.”

24. Significantly, the Policy gives the University “sole discretion” to

“determine[]” whether a Conflict of Interest or a Conflict of Commitment “may exist”

and to determine what sanctions should be imposed on a faculty member with such a

conflict. As set forth below, the University has used its discretion to define those terms

in a manner that discriminates on the basis of faculty members’ viewpoints and has

offered shifting and inconsistent explanations for its interpretation of the Policy.

7
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 8 of 27

25. The penalties for an employee’s failure to comply with the Policy can be

severe. The Policy provides that any violation of its requirements—including failure to

disclose an outside activity or proceeding with an outside activity without first obtaining

approval—can result in “administrative or disciplinary action . . . up to and including

termination of employment.”

The University Prevents Law School Professors From Signing an Amicus Curiae
Brief with Their Institutional Affiliation.

26. On January 31, 2020, Gary Wimsett, Jr., Assistant Vice President for

Conflicts of Interest, gave a presentation to the Law School faculty on the Policy.

27. On February 10, 2020, Dean Rosenbury emailed the Law School faculty to

provide “some clarification” on the Policy’s scope. She told the Law School faculty:

“Writing or signing on to an amicus brief in your capacity as an individual law professor”

was not an “Outside Activity” that required prior approval under the Policy because it

was “[c]onsidered [p]art of [y]our UF [a]ssignment.” (emphasis added.) Only “[a]micus

briefs written for another individual or entity” were considered “Outside Activities”

under the Policy. (emphasis added.)

28. In or around July 2020, Professor Nunn was contacted by attorneys for the

plaintiffs in Jones, et al. v. DeSantis, et al., No. 20-12003 (11th Cir.). That case

challenged Florida Senate Bill 7066, which requires Florida citizens who have completed

their sentence for felony convictions to pay any financial obligations included in their

sentence before they can exercise their right to vote. The attorneys wanted to know

whether Professor Nunn would be interested in signing an amicus brief in opposition to

Florida Senate Bill 7066 along with other law professors from around the country and

across the State of Florida.

8
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 9 of 27

29. On July 1, 2020, Professor Nunn emailed over two dozen Law School

colleagues who had expertise in constitutional law, voting rights law, civil rights law, or

criminal procedure to ask whether they would be interested in joining the amicus brief in

Jones v. DeSantis. Professor Nunn requested that they respond by July 8, 2020.

30. Professor Reid was among the faculty members who Professor Nunn

contacted, and she agreed to join the amicus brief. Eight other Law School professors

also agreed to sign on, in addition to the Law School’s Center for the Study of Race and

Race Relations.

31. In light of Dean Rosenbury’s February 10, 2020 guidance, Professors

Nunn and Reid did not think that they needed to seek the University’s permission merely

to sign the amicus brief in Jones v. DeSantis. It made sense to them that signing on to the

amicus brief would not be considered an “Outside Activity” because it was consistent

with their job responsibilities at the Law School, where each taught courses implicating

the rights of criminal defendants and those convicted of felonies. Moreover, both

Professors Nunn and Reid had previously signed numerous amicus briefs on issues

relevant to their areas of expertise with no opposition from the University.

32. But on July 9, 2020, just one day after the deadline that Professor Nunn

had set for agreeing to sign on to the amicus brief, the law school abruptly changed its

position on signing amicus briefs. Dean Rosenbury emailed the Law School faculty,

stating for the first time that faculty were required to seek permission before signing onto

an amicus brief—but only if the brief was filed in a case opposing the State of Florida:

[F]aculty participation in litigation against the state of

Florida or any agency thereof, including through amicus
briefs, is considered a potential conflict of interest. If you
seek to participate in such litigation or to write or sign on to

9
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 10 of 27

an amicus brief in support of a party suing the state of

Florida, you must fill out a disclosure form through
UFOLIO and receive approval before participating. . . .

33. In an apparent reference to the Center for the Study of Race and Race

Relations’ plan to sign the amicus brief in Jones v. DeSantis, Dean Rosenbury added an

additional requirement specific to entities like the Center: “Entities of the College of

Law, such as centers, clinics, or other classes, seeking to participate in such litigation or

amicus briefs must separately receive approval from me, the General Counsel, and

President Fuchs.”

34. Confused by this sudden change, Professor Nunn asked Dean Rosenbury

to clarify the Policy as it applied to signing the amicus brief in Jones v. DeSantis.

Contrary to her February 10, 2020 guidance that only outside activities were required to

be disclosed, Dean Rosenbury responded: “You are correct that this is not an outside

activity, but it is a potential conflict of interest because the amicus brief will be filed in an

action against the state. You, and others, must therefore disclose on that basis.”

35. On July 13, 2020, Dean Rosenbury wrote to Professor Nunn and other

Law School faculty members:

I have confirmed that the university will approve this

activity so long as you participate solely in your individual
capacity. You may not participate in your capacity as an
employee of the University of Florida or on behalf of the
Levin College of Law or the University of Florida. Please
ensure that the amicus brief clearly indicates that any law
school or university affiliation is included for identification
purposes only.

36. Consistent with Dean Rosenbury’s advice, Professor Nunn completed his

UFOLIO disclosure for his participation in the litigation and included the following

language:

10
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 11 of 27

[Signing on to the amicus brief] will not put me in a

position adverse to the interests of the University of
Florida. I simply wish to sign on to an amicus brief, as one
of more than 100 professors at law, to express an opinion
about the proper interpretation of the law in regards to not
infringing on the voting rights of ex-felons as provided by
citizen initiative in the State of Florida. I understand that I
may not participate in my capacity as an employee of the
University of Florida or on behalf of the Levin College of
Law or the University of Florida. I will ensure that the
amicus brief clearly indicates that any law school or
university affiliation is included for identification purposes
only.

37. Professor Nunn’s UFOLIO request was unconditionally approved on

July 14, 2020.

38. Professor Reid also submitted a UFOLIO request to sign on to the Jones v.

DeSantis amicus brief. On July 12, 2020, Professor Reid’s UFOLIO request was

approved with the condition that she “participate in this outside relationship in [her]

individual capacity only.” But, unlike Professor Nunn, her approval also stated that she

was “not permitted to use any UF marks, logos or other identifiers in [her] outside

activity/interest, and [could] not otherwise imply or suggest any official affiliation with

UF.” (emphasis added.)

39. Following the controversy surrounding the University’s shifting positions,

most of the 10 professors who had expressed interest in signing the amicus brief in Jones

v. DeSantis ultimately did not do so. When the amicus brief was filed, only four Law

School professors, including Professors Nunn and Reid, were listed among the 109

signatories.1 The Center for the Study of Race and Race Relations was not listed.

1
See Appearance of Counsel Form filed by Jennifer Altman for 109 Professors of Law,
Jones et al. v. DeSantis et al., No. 20-12003 (11th Cir. Aug. 6, 2020).

11
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 12 of 27

40. In addition, as a result of the University’s conditions, the Law School

professors’ institutional affiliations were omitted from the brief. Of the 28 law professors

from Florida schools, Professors Nunn, Reid, and two additional Law School professors

were the only ones who did not have their institutional affiliations listed alongside their

signatures. All of the other 24 law professors from other Florida schools—including

Florida State University College of Law and Florida International University College of

Law—who signed the amicus brief listed their institutional affiliations alongside their

signatures.2

41. Although Professors Nunn and Reid agreed to join the amicus brief in

Jones v. DeSantis in their personal capacities, listing their institutional affiliations was an

important part of the message that they had wanted to convey. Their professional

association with the Law School—Florida’s top-ranked law school—reflected their years

of practice and scholarship and would have given greater weight and credibility to their

signatures on the amicus brief.

The University Blocks Professor Goldhagen from Testifying as an Expert Witness in

Support of a Challenge to the Ban on Mask Mandates in Public Schools.

42. On July 30, 2021, Governor Ron DeSantis entered Executive Order

Number 21-175 entitled “Ensuring Parents’ Freedom to Choose—Masks in Schools” (the

“Executive Order”). The Executive Order precluded school districts from enacting mask

mandates and threatened to withhold state funds for any school district that chose to

require masks in schools.

43. Florida parents quickly sued to enjoin the Executive Order, arguing that it

impaired the safe operation of schools in the State. The lawsuit was filed in the Circuit

2
See id.

12
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 13 of 27

Court in Leon County under the caption McCarthy, et al. v. DeSantis, et al.

(“McCarthy”), No. 2021-CA-001382 (Fla. Cir. Ct.).

44. An attorney for the plaintiffs in the McCarthy litigation asked Professor

Goldhagen to serve as an expert witness in support of the challenge to the Executive

Order, including testifying at trial, to which Professor Goldhagen readily agreed. As an

expert in pediatric public health, Professor Goldhagen was asked to testify on the impact

of COVID-19 on the pediatric population and the health benefits of requiring students to

wear masks in schools to prevent the spread of COVID-19.

45. Although expert witnesses are typically compensated for their time and

expenses in preparing expert reports and giving expert testimony, Professor Goldhagen

did not request compensation for his work on the McCarthy case. Instead, he chose to

donate his time pro bono to what he considered to be a crucial matter of public health.

46. In accordance with the Policy, on or about August 11, 2021, Professor

Goldhagen duly submitted a request through UFOLIO disclosing his engagement as an

expert witness in the McCarthy case.

47. Professor Goldhagen had served as an expert witness multiple times before

with the University’s approval, and he did not expect to meet any opposition from the

University this time. After all, he believed, testifying on behalf of parents who wanted to

protect their children’s health and safety in school was entirely consistent with the

University of Florida College of Medicine’s “goal of improving individual and

community health” and his oath as a medical doctor.

48. So Professor Goldhagen was astonished when, on August 12, 2021, Gary

Wimsett marked his application “denied.” In explaining the basis for the decision, Mr.

13
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 14 of 27

Wimsett made no attempt to hide that the University was denying Professor Goldhagen’s

application because Professor Goldhagen sought to testify on behalf of Florida parents

and not the State, stating: “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.”

49. Professor Goldhagen subsequently inquired to “learn about the appeal

process/procedure for decisions related to Disclosure for outside activities” and was

informed by Mr. Wimsett that “[t]here is no mechanism for appealing disapprovals in

UFOLIO.”

50. Professor Goldhagen informed the lawyer who had asked him to serve as

an expert witness that the University did not approve his request. Though he encouraged

the lawyer to subpoena him for his testimony—in which case he would be required to

testify—the case moved too quickly, and the lawyer instead sought other expert witnesses

who were not prevented from participating.

51. As a result of the Policy, Professor Goldhagen was not able to serve the

people of Florida by sharing his expertise, experience, and medical knowledge on one of

the most critical public health matters of our time.

The University Tries to Stop Professors Austin, McDonald, and Smith from
Testifying as Expert Witnesses in Support of a Challenge to Voting Restrictions.

52. On May 6, 2021, Governor DeSantis signed Senate Bill 90 (“SB 90”) into

law. Among other things, SB 90 imposes obstacles on Florida voters’ ability to cast

ballots through in-person voting, mail-in voting, and the use of secure drop-boxes for

early voting. It also places new restrictions on third-party voter-registration drives and

prohibits certain organizations, including churches, from providing assistance to voters

waiting in line to vote.

14
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 15 of 27

53. Voting rights advocates sued to enjoin SB 90, arguing that it

disproportionately harms Black and Latino voters and poor voters. The lawsuits were

consolidated before this Court under the caption League of Women Voters of Florida,

Inc., et al., v. Laurel M. Lee (“League of Women Voters”), No. 4:21-cv-00186-MW-MAF

(N.D. Fla.).

54. Attorneys for the plaintiffs in the League of Women Voters litigation asked

Professors Austin, McDonald, and Smith (the “Political Science Professors”) to act as

expert witnesses in support of their challenge to SB 90 and ultimately to testify at trial, to

which the Political Science Professors readily agreed. Those attorneys asked the Political

Science Professors to testify on topics including the history of voting discrimination

against minority groups, the use of mail balloting and in-person early voting in Florida,

and the impact of vote-by-mail measures on minority groups.

55. Two of the Political Science Professors had undertaken similar work

before. In particular, Professors McDonald and Smith previously served as expert

witnesses in a number of lawsuits opposing voting regulations in states around the

country, including lawsuits challenging Florida legislation and naming officers of the

State of Florida as defendants.3 Professor Austin began serving as an expert witness this

year.

3
Professor Smith has served as an expert witness in a number of cases, including:
Gruver, et al. v. Barton, et al., No. 1:19-cv-00121-MW-GRJ (N.D. Fla. 2019); Rivera v.
Detzner, No. 1:18-cv-00152-MW-GRJ (N.D. Fla. 2018); League of Women Voters of
Florida, Inc. v. Detzner, No. 4:18-cv-00251-MW-CAS (N.D. Fla. 2018); Florida
Democratic Party v. Scott, No. 4:16-cv-00626-MW-CAS (N.D. Fla. 2016); Arcia v.
Detzner, 1:12-cv-22282-WJZ (S.D. Fla. 2012); and Romo v. Scott, No. 2012-CA-000412
(Fla. Cir. Ct. 2012).

15
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 16 of 27

56. As is typical and expected in expert witness engagements, Professors

McDonald and Smith received fair compensation for their time and expenses in preparing

their expert testimony in prior cases. Plaintiffs’ engagement in the League of Women

Voters litigation was no different in this respect.

57. The University did not object to Professor Smith and McDonald’s prior

work as expert witnesses. If anything, it commended them. For example, in Professor

Smith’s annual performance reviews, the University praised his research and advocacy on

voting rights as “impactful and important for our colleagues, students, and the citizens of

Florida.” And it celebrated both his considerable scholarly writings as well as his role as

an advocate on voting issues, calling his work “important both as a scholar and as a

contribution to the people of Florida.”

58. In accordance with the Policy, each of the Political Science Professors

submitted requests through UFOLIO disclosing their engagement as expert witnesses in

connection with the League of Women Voters litigation.

59. The University refused to approve each of the Political Science Professors’

applications, offering a series of shifting and inconsistent explanations that laid bare the

University’s real goal: to prevent the Political Science Professors from testifying in

support of a challenge to the State’s policies.

60. On July 7, 2021 and again on October 11, 2021, the University sent

Professor Smith a disapproval notice. As with Professor Goldhagen, the University told

Professor Smith: “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.”

16
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 17 of 27

61. On October 13, 2021, the University sent Professor McDonald a

disapproval notice, which once again equated the interests of the University—a public

research institution—with those of the State. It stated: “UF [w]ill deny its employees’

requests to engage in outside activities when it determines the activities are adverse to its

interests.”

62. Also on October 13, 2021, the American Civil Liberties Union’s

(“ACLU”) Florida chapter sent a letter to Gary Wimsett, Assistant Vice President for

Conflicts of Interest, and Brian Powers, Director, Conflicts of Interest, which stated that

there “is no question that Dr. Smith would be speaking in his capacity as a private citizen,

not as an employee of the University,” that “he would obviously be speaking on a matter

of public concern,” and that his “interest in sharing his important perspective, and the

public’s interest in better understanding the operation of their government, far outweigh

any purported contrary interest that UF might have.” The ACLU requested that the

University “immediately rescind the denial” of Professor Smith’s participation as an

expert witness. The University did not respond to this letter.

63. On October 15, 2021, the University sent Professor Austin a disapproval

notice containing the same language as was sent to Professor McDonald, but adding: “As

UF is a state actor, litigation against the [S]tate is adverse to UF’s interests.”

64. Following Professor Austin’s and Professor McDonald’s disapprovals, the

ACLU sent letters on their behalf similar to the letter sent on behalf of Professor Smith.

The ACLU, again, received no reply.

65. On October 29, 2021, Plaintiffs’ counsel sent a letter to Ryan Fuller,

Associate Vice President and Deputy General Counsel for the University, which noted

17
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 18 of 27

that the University’s Policy violated the Political Science Professors’ constitutional rights

and asked the University to reverse its disapproval decisions.

66. In response, the University adopted an all-new justification for its actions.

In a statement posted on its website on October 30, 2021, the University suggested that

the reason for the disapprovals was not only that the Political Science Professors’

testimony was expected to be “adverse to the [U]niversity’s interests as a state of Florida

institution” but also that the Political Science Professors would be “paid” for their time

and expenses.

67. On November 1, 2021, when Plaintiffs’ counsel sent another letter to the

University asking for clarity, the University retreated to yet a new position. In a letter

replying to Plaintiffs’ counsel, Fuller reiterated that the Political Science Professors’

testimony “involved activities that are adverse to the State of Florida.” But, he asserted,

“pursuant to the University’s policy related to outside activities,” the Political Science

Professors could testify as long as it was “in their personal capacit[ies], without the use of

any University resources and without compensation.”

68. Apparently recognizing the inconsistencies in its shifting positions, in a

November 1, 2021 letter from President Fuchs to the “campus community,” the

University announced it was “immediately appointing a task force to review the

[U]niversity’s conflict of interest policy and examine it for consistency and fidelity,” but

provided no other details. As to the Political Science Professors, President Fuchs’ letter

stated: “[I]f the professors wish to testify pro bono on their own time without using

[U]niversity resources, they are free to do so.”

18
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 19 of 27

69. But, as President Fuchs and Mr. Fuller surely knew, the Political Science

Professors’ work as expert witnesses would be performed solely in their personal

capacities, and it would not impinge on the time that they are expected to devote to their

work for the University or use University resources.

70. As for the University’s suggestion that its real problem with the Political

Science Professors’ testimony was that they would be compensated for it, that rationale is

at odds with the University’s position regarding the Law School professors’ unpaid

participation in the Jones v. DeSantis amicus brief and Professor Goldhagen’s unpaid

participation in the McCarthy case.

71. Moreover, the State seemingly had no problem with the faculty of a public

university testifying and receiving compensation for expert witness work that favors the

State’s viewpoint. Florida International University, like the University of Florida, has

adopted a policy that limits faculty’s outside activities that pose a conflict of interest with

the “university, the Board of Governors, and/or the State of Florida.” Upon information

and belief, pursuant to that policy, Florida International University permitted Professor

Dario Moreno to receive compensation for being an expert witness for the Republican

National Committee and the National Republican Senatorial Committee as intervenors in

the very same litigation in which the University forbade the Political Science Professors

from doing the same for voting rights groups.

Facing a Public Outcry, the University Rescinds Specific UFOLIO Denials But the
Policy Remains in Place.

72. The University’s refusal to allow the Political Science Professors to testify

was made public in late October 2021, igniting a firestorm of public criticism.

19
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 20 of 27

73. Florida’s Democratic congressional delegation sent a letter to President

Fuchs lambasting the school’s attempt to block professors from serving as expert

witnesses, and the American Association of University Professors released a statement

condemning “in the strongest possible terms” the University’s “infringement of [its

professors’] academic freedom rights.”4

74. Nationally recognized academics condemned the University’s Policy, as

well. Keith Whittington, a Princeton professor and Chair of the Academic Committee of

the Academic Freedom Alliance, wrote in an October 31, 2021 letter to President Fuchs

and other University leaders: “The University is mistaken in thinking that this decision is

consistent with the principles of free speech and academic freedom.”5 Similarly, Robert

George, a Professor of Jurisprudence and Director of the James Madison Program in

American Ideals and Institutions at Princeton University, told University administrators

at a meeting of the Florida Board of Governors that the Policy infringed professors’ First

Amendment rights.6

75. The University’s actions brought about a threat to its own accreditation

status. On or about November 1, 2021, the Southern Association of Colleges and

4
See Statement from AAUP President Irene Mulvey
on University of Florida’s Blatant Violation of Academic Freedom, University of
Florida’s Politically Motivated Violation of Academic Freedom Undermines the
Common Good, Am. Assoc. of Univ. Professors (Nov. 1, 2021),
https://www.aaup.org/news/university-floridas-politically-motivated-violation-academic-
freedom-undermines-common-good#.
5
See Letter from Keith Whittington to President Kent Fuchs (Oct. 31, 2021),
https://academicfreedom.org/wp-content/uploads/2021/11/AFA-letter-to-UF-on-expert-
testimony-prohibition.pdf.
6
See Jimena Tavel, Princeton Legal Scholar Advises UF to Back Off Restricting
Professors in Suit Against State, MIAMI HERALD (Nov. 3, 2021),
https://www.miamiherald.com/news/local/education/article255522016.html#storylink=cp
y.

20
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 21 of 27

Schools, the University’s accreditor, asked for clarification on the Policy and stated that it

might launch an investigation to determine if the University’s actions violated its rules.7

76. On November 5, 2021, the University reversed its denials of the Political

Science Professors’ UFOLIO applications, apparently as a matter of discretion. On or

about that date, Professor Goldhagen’s UFOLIO denial for the McCarthy case and for at

least one other case concerning the ban on mask mandates were changed to “approved.”

77. President Fuchs also announced that the newly appointed task force would

“make a recommendation to [him] on how [the University] should respond when

employees request approval to serve as expert witnesses in litigation in which their

employer, the state of Florida, is a party,” and would be asked to deliver “a preliminary

recommendation by Monday, November 29.”

The Policy Remains in Place, Continuing to Violate Plaintiffs’ Free Speech Rights.

78. The University’s unconstitutional Policy remains in place, and the

University’s hastily appointed task force is unlikely to remedy the problem. Public

statements by President Fuchs, Provost Glover, and Dean Rosenbury—the latter two of

whom serve on the task force—all indicate that the task force’s mandate is limited to

expert witness work and will not address other forms of participation in litigation or

advocacy against State policies. President Fuch’s November 5, 2021 announcement

stated only that the task force’s preliminary recommendation would address expert

witness work by faculty members. Likewise, Dean Rosenbury, while inviting her
7
See Lindsay Ellis, U. of Florida’s Accreditor Will Investigate Denial of
Professors’ Voting-Rights Testimony, THE CHRONICLE OF HIGHER EDUCATION (Nov. 1,
2021); Accreditation Firm Investigating UF Professors Testimony Incident, WCJB (Nov.
2, 2021), https://www.chronicle.com/article/u-of-floridas-accreditor-will-investigate-
denial-of-professors-voting-rights-testimony;
https://www.wcjb.com/2021/11/02/accreditation-firm-investigating-uf-professors-
testimony-incident/.

21
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 22 of 27

colleagues’ input into the Policy, asked only for advice about the policies and procedures

“as they relate to the issue of serving as an expert witness.” Provost Glover stated during

the task force’s first meeting that it was focusing solely on the issue of expert witness

testimony because “[President Fuchs] feels that this is one of the issues that is most

pressing[.]”

79. Moreover, there is no set timeline for the University to make revisions—if

any—to the Policy. President Fuchs asked only that the task force give him a

“preliminary recommendation” by November 29, 2021. It remains unclear when, if ever,

the University will reach a final decision as to the Policy’s terms and scope.

80. Finally, the composition of the task force highlights its inadequacy. The

group excludes any representation from the Faculty of the College of Liberal Arts and

Sciences or the College of Medicine. And it includes at least two members—Dean

Rosenbury and Terra DuBois, Chief Compliance, Ethics, & Privacy Officer—who are

conflicted because they have both been engaged in the development and unconstitutional

execution of the existing conflict of interest policies. Neither can fairly or objectively

judge the permissibility or constitutionality of their own actions.

81. In the meantime, the Policy continues to violate Plaintiffs’ rights.

Plaintiffs frequently are asked to participate in lawsuits concerning their areas of research

and teaching. Many of these cases challenge legislation or government action related to

elections or criminal procedure. Many seek emergent relief, including emergency

motions in death penalty cases or motions for temporary restraining orders regarding

voting procedures. Plaintiffs may be required to provide research or analysis on a highly

expedited basis—sometimes in a matter of hours and sometimes without knowing

22
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 23 of 27

whether the State is a party to the litigation and, if so, whether their testimony will be for

or against the State’s position.

82. The Policy’s vaguely worded terms and the discretion that it vests in the

University to define them—seemingly at whim—leaves Plaintiffs unable to determine

whether they are required to seek the University’s approval under the Policy and, if so,

whether the activity likely would be approved. As a result, Plaintiffs are likely to lose out

on opportunities to participate as amici curiae or expert consultants or witnesses,

particularly in fast-paced litigation.

83. As a matter of principle and commitment to academic freedom and

integrity, Plaintiffs intend to continue to participate in litigation challenging State policies

that are within their areas of expertise whenever possible.

84. Plaintiffs face serious risks in doing so. If Plaintiffs were to accept an

expert engagement or sign an amicus brief without first receiving the University’s

permission, they would invite significant professional consequences. These could

include, for example, withholding of institutional support or funding for projects that are

important to their career advancement or denial of promotions. The Policy even states

that faculty who violate its terms can be terminated.

85. The University’s inconsistent and discriminatory application of the Policy

has already left some Plaintiffs hesitant to participate in litigation at all. For example, on

November 3, 2021, Professor Nunn received an invitation to join an amicus brief in

support of Terrence Andrus’s request for resentencing for a crime committed as a

juvenile in Andrus v. Texas, No. 21-6001. Ordinarily, Professor Nunn would not hesitate

to lend his name and prominence as a criminal law scholar to an amicus brief on such an

23
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 24 of 27

important issue. Nevertheless, on November 7, 2021, he declined the invitation,

explaining that, “with all the turmoil going on down here with university oversight of our

amicus signons, [he had] decided to wait until there is more clarity” on the Policy’s

scope. The Policy was the sole reason Professor Nunn decided not to sign the amicus

brief in Andrus.

86. Unless and until the Policy is rescinded or declared unconstitutional to the

extent it equates the University’s “interest” with that of the State and allows the

University unlimited discretion to block speech that it dislikes, it will continue to impede

Plaintiffs from participating in litigation or other forms of advocacy that challenge State

policies, in violation of the First Amendment and Plaintiffs’ academic freedom.

FIRST CLAIM FOR RELIEF

FIRST AMENDMENT
U.S. Const. amends. I, XIV; 42 U.S.C. § 1983
(Against All Defendants)

87. Plaintiffs re-allege and incorporate by reference all prior paragraphs of this

Complaint as though fully set forth herein.

88. The First Amendment declares that “Congress shall make no law . . .

abridging the freedom of speech.” The First Amendment applies to the States under the

Fourteenth Amendment.

89. 42 U.S.C. § 1983 provides a cause of action, including for declaratory or

injunctive relief, against “[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws” of the United

States.

24
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 25 of 27

90. Pursuant to the Policy, Defendants have unbridled discretion over whether

to permit or deny Plaintiffs’ expressive activity based on viewpoint or content and to

suppress disfavored speech, in violation of Plaintiffs’ First Amendment rights.

91. Defendants also violated Plaintiffs’ rights under the First Amendment by

restricting Plaintiffs from participating in litigation on the basis of their viewpoint and by

imposing a prior restraint on their speech, namely by requiring the University’s

permission to participate in litigation against the State.

92. Discrimination and prior restraint on the basis of viewpoint or content are

presumptively unconstitutional. Thus, the University’s restrictions must be struck down

unless they are narrowly tailored to serve a compelling interest of the State.

93. The State has no compelling interest in silencing University faculty and

preventing them from speaking on a topic of such significant public importance as voting

rights and public health. And Plaintiffs’ interest in speaking freely on a matter of public

concern far outweighs any interest that the State may have in censoring their testimony.

“The notion that the State may silence the testimony of state employees simply because

that testimony is contrary to the interests of the State in litigation or otherwise, is

antithetical to the protection extended by the First Amendment.” Hoover v. Morales, 164

F.3d 221, 226 (5th Cir. 1998).

94. The Policy further violates Plaintiffs’ First Amendment rights because its

vague terms give Plaintiffs no notice of what conduct is prohibited and lead to arbitrary

and viewpoint discriminatory enforcement.

95. Finally, the Policy’s terms are overbroad because they capture a

substantial amount of protected speech.

25
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 26 of 27

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief as follows:

1. Preliminary and permanent injunctive relief preventing Defendants from

enforcing any policy or practice that provides the University discretion to

limit Plaintiffs’ ability to undertake outside activities, on a paid or unpaid

basis, on the ground that the proposed activity is not aligned with the

“interests” of the State of Florida or any of its entities or instrumentalities;

2. Declaratory relief declaring unlawful Defendants’ policy or practice that

provides the University discretion to limit Plaintiffs’ ability to undertake

outside activities, on a paid or unpaid basis, on the ground that the

proposed activity is not aligned with the “interests” of the State of Florida

or any of its entities or instrumentalities;

3. Reasonable attorneys’ fees and costs; and

4. Such other and further relief as this Court may deem just and proper.

Dated: November 15, 2021

Washington, D.C.

By:______________________
DAVID A. O’NEIL (pro hac vice) PAUL DONNELLY
Debevoise & Plimpton LLP Florida Bar No. 813613
801 Pennsylvania Avenue N.W., Suite 500 LAURA GROSS
Washington, D.C. 20004 Florida Bar No. 858242
(202) 383-8000 CONOR P. FLYNN
[email protected] Florida Bar No. 1010091
Donnelly + Gross LLP
MORGAN A. DAVIS (pro hac vice) 2421 NW 41st Street, Suite A-1
ALEXANDRA P. SWAIN* Gainesville, FL 32606
JAIME FREILICH-FRIED (pro hac vice) (352) 374-4001
SAMUEL ROSH (pro hac vice) [email protected]

26
 Case 1:21-cv-00184-MW-GRJ Document 19 Filed 11/15/21 Page 27 of 27

SOREN SCHWAB (pro hac vice) [email protected]

KATHARINE WITTEMAN (pro hac vice) [email protected]
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
(212) 909-6000
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

*Application for admission pro hac vice

forthcoming

Counsel for Plaintiffs Sharon Wright Austin, Michael McDonald, Daniel A.

Smith, Jeffrey Goldhagen, Teresa J. Reid, and Kenneth B. Nunn

27