Federal judge overturns rules limiting outside employment of professors

Thursday, February 17, 2000

A federal judge has ruled unconstitutional provisions at several public universities in Texas which prohibit professors from accepting any outside employment that would conflict with the interests of the state.

In July 1997, Robert Hoover, a marketing professor at Texas A&M-Corpus; Christi, the Texas Faculty Association and two other professors challenged a state law and a similar university rule at Texas A&M;, which prohibited outside employment if there was a conflict.

Hoover challenged the state law and the university rule after university officials told him he could not serve as an expert witness for a group of tobacco companies the state is suing for health-care costs associated with smoking

The plaintiffs in Hoover v. Morales alleged that the rules violated professors’ free-speech rights and academic freedom.

The Texas law was proposed after several professors testified as expert witnesses in litigation against the state.

In August 1997, U.S. District Judge James R. Nowlin granted a preliminary injunction against the state law and the Texas A&M; rule. On appeal, the 5th U.S. Circuit Court of Appeals upheld Nowlin’s ruling.

In March 1999, Nowlin ruled that other state universities in Texas could not use the law to silence the testimony of professors.

Hoover and the other plaintiffs amended their lawsuit to challenge similar provisions at the University of North Texas, Texas Women’s University, Texas Southern University, the Texas University System and Stephen F. Austin State University.

Last week, Nowlin issued a final judgment order, finding that the state university rules at the various schools (except those belonging to the Texas University System, which had changed its rule in response to the lawsuit) were “impermissibly overbroad” and “violate the First Amendment.”

Charles Zucker, executive director of the Texas Faculty Association, said in a Feb. 11 news release: “After Judge Nowlin’s ruling yesterday (Feb. 10), no faculty member should feel any trepidation about serving as an expert witness or consultant in litigation against the state. This is a tremendous victory for the right of free speech and for faculty in our public universities.”

Scott Polikov, attorney for Hoover and the Texas Faculty Association, also hailed the decision as a free-speech victory. “I think the result in this case is a reaffirmation of full First Amendment rights for all government employees in general,” Polikov said.

Assistant Attorney General Jim Todd, who defended the state, said a decision had not been made yet on whether to appeal.