Expert Testimony by Public University Faculty: Exposing Doctrinal Deficiencies of Academic Freedom as a Legal Right and Proposing a Solution Within the Public-Employee Speech Doctrine

Authors

Clay Calvert, University of Florida

Abstract

When the University of Florida (“UF”) prohibited three professors in 2021 from serving as expert witnesses in a lawsuit filed against the State of Florida, the decision sparked a national debate about academic freedom and free speech at public universities. The professors also sued UF in federal court in Austin v. University of Florida Board of Trustees alleging a violation of their First Amendment rights. This Article asserts that the constitutional doctrine of academic freedom is sadly deficient for resolving such lawsuits. The Article explains, instead, that the public-employee speech doctrine provides the appropriate framework for analyzing cases filed by public university professors who are barred from testifying as experts in litigation where the state affiliated with the professors’ university is a defendant. The Article avers, however, that this should not render irrelevant the constitutional value of academic freedom when courts examine such cases under the public-employee speech doctrine. Indeed, the Article contends that academic freedom should be treated as a substantial interest that must be balanced against a university’s rationale for blocking expert-witness testimony. Importing academic freedom into the public-employee speech framework in this manner serves what former Yale Law School Dean Robert Post aptly calls “the value of democratic competence.”

Recommended Citation

Clay Calvert, Expert Testimony by Public University Faculty: Exposing Doctrinal Deficiencies of Academic Freedom as a Legal Right and Proposing a Solution Within the Public-Employee Speech Doctrine, 76 U. Mia. L. Rev. 742 (2022)
Available at: https://repository.law.miami.edu/umlr/vol76/iss3/4