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In heated hearing, lawyer says professors who sued University of Florida have ‘unclean hands’

A lawyer representing the University of Florida board of trustees, its president and two senior trustees told a hearing on Friday that three political science professors who filed a lawsuit against his firm’s clients had “unclean hands” and had engaged in “misconduct”. ”

The three scholars – Daniel A. Smith, Michael McDonald and Sharon Wright Austin – filed a lawsuit after the university denied their requests to participate as expert witnesses in a voting rights lawsuit that challenged the ‘State. They had been told, under the university’s conflict of interest policy, that participating in such work was “contrary” to the interests of the university as a state institution. News of the denials caused a wave of backlash, and the university quickly reversed course.

In November, Smith, McDonald and Austin filed a lawsuit in federal court, arguing that their First Amendment rights had been violated and that the conflict of interest policy was unconstitutional. Three other University of Florida faculty members have joined the lawsuit. The academics’ interest in “speaking freely on a matter of public interest far outweighs any interest the state may have in censoring their testimony,” the complaint states.

Lawyers representing the parties at the University of Florida argued in a filing that the case should be dismissed from court, in part because it is moot. Plaintiffs “simply refuse to take yes for an answer,” the motion to dismiss states. And, the lawyers point out, the policy on conflicts of interest has been revised. (The plaintiffs argued that, even with revisions, the policy remains unconstitutional.)

On Friday afternoon, in a hearing held by telephone, the parties appeared before Mark E. Walker, Chief Judge of the U.S. District Court for the Northern District of Florida, to present arguments regarding the plaintiffs’ motion for an injunction. preliminary.

H. Christopher Bartolomucci, a partner in a Washington, DC-based firm representing the UF defendants, threw a curveball. Bartolomucci, of Schaerr Jaffe LLP, told the court that “just two days ago” facts came to their attention that “should fundamentally change” the way the court views this case.

University policy is clear, he said, that a faculty member cannot engage in outside work “unless and until” it is approved by the university. .

“We know now,” he said, that Smith, Austin and McDonald were actively working as experts before submitting their claims, and that they continued to work as experts after college. denied their claims. Bartolomucci then recited a number of dates that scholars had helped work on the litigation.

Yet these facts are “not found” in the plaintiffs’ complaint or in their submitted statements, Bartolomucci said. They “misled” their employer, the defense attorney and this court, he said. And their “misconduct,” he said, affects the case in several ways. On the one hand, plaintiffs have “unclean hands,” he said. Moreover, “there is no chilling effect”, as the plaintiffs argued, because “the policy did not put them off”.

In response, David A. O’Neil, a partner at Debevoise & Plimpton LLP, which is one of the firms representing academics, said Bartolomucci had done “an excellent job” explaining the cold to which plaintiffs and other members of the faculty are subject. at. Far from distancing themselves from their denial rulings, the defendants are “doubled down now” and clarify that the plaintiffs may face penalties for refusing to follow what academics firmly believe is an unconstitutional restriction on their speech.

O’Neil later pointed out in the hearing that Smith never denied working on the voting rights litigation before getting UF’s approval, because he didn’t think the university would oppose it. “It had always encouraged him to do it before,” O’Neil said.

He also told the hearing that the case is not about what happened in the past. “What is it about will be occur under this policy. The duties of faculty members, O’Neil said, are to “create an environment” in which “the creation and sharing of knowledge, for the benefit of the people of Florida, is encouraged.” But the defense, instead of saying “what should be obvious – we will not discriminate against speech based on point of view” – instead “attacked faculty members” who have been at this university for years.

Walker, the judge, was clearly taken aback by Bartolomucci’s steep turn. The judge said he was “perplexed” that Bartolomucci would suggest these were newly discovered facts when the defense had not formally requested the discovery, and the information, as far as the judge could tell, were all part of the public record. “I have to say I’m baffled.” He pressed Bartolomucci on how this was possible.

The lawyer began to respond by saying, “We learned for the first time” the facts on Wednesday evening.

Walker cut it off. Bartolomucci had gone about it in a “squirrely” way, the judge scolded. Now Walker was “restless”.

The college lawyer had gone about it in a “curious” way, scolded Judge Walker. Now the judge was “agitated”.

“You are going to answer my question directly.” He then threatened to “call you in Tallahassee” and have him sworn in, which he had done to a lawyer only once before. Walker ordered Bartolomucci to answer his question. “Are you saying, ‘Sir, I was just incompetent and didn’t bother to check the public records to see what date they were?’ Is this the answer?

When, Walker asked, did Bartolomucci suddenly decide to “drop that bombshell” and “attack the teachers” saying they had “unclean hands”?

Bartolomucci responded that in court documents, Smith, McDonald and Austin provided “no notice or indication” that they were engaged in their expert witness work before and after their denials.

But why, asked Walker, would this information be in their affidavits? He continued: “Were they supposed to come to your office and explain things to you – I just don’t understand.”

After more back and forth, Bartolomucci said the information came to light on Wednesday night because that’s when the defense ‘started searching’ for documents filed in ‘the election case’. .

“Why then?” Walker insisted. “Why not in December?

Bartolomucci started to answer but Walker cut him off.

“I’ve heard enough, lawyer, and I have to tell you – anyway. I will stop there.