Texas professors can testify as expert witnesses, rules federal judge

Thursday, March 18, 1999

A federal judge has ruled that public universities in Texas cannot bar professors from testifying as expert witnesses against the state in lawsuits. The judge's latest ruling expands on his earlier decision that the state law violates First Amendment free-speech rights of faculty members.

U.S. District Judge James R. Nowlin also indicated at the March 11 hearing that he would likely strike down broadly worded university policies prohibiting faculty members from engaging in outside work that brings them into conflict with the state.

The latest ruling comes in the case of Hoover v. Morales, a lawsuit filed by Texas A&M; University marketing professor Robert Hoover in July 1997 against the state attorney general and the chancellor of Texas A&M.; Hoover challenged the constitutionality of the state law and a Texas A&M; rule regarding outside employment.

The expert-witness law, which was scheduled to go into effect in September 1997, provides: “Because of an inherent conflict of interest, none of the funds appropriated by this Act shall be expended in payment of salary, benefits, or expenses of any state employee who is retained as or serves as an expert witness or consultant in litigation against the state, unless the state employee serves in that capacity on behalf of a state agency on a case in which the state agency is in litigation against another state agency.”

Texas A&M; rule 31.05 provides that outside employment by full-time university employees will be allowed if “it does not bring an employee into conflict with the interests of the State of Texas.”

Hoover sued after university officials told him they construed Rule 31.05 to prohibit him from serving as an expert witness for the tobacco industry in a lawsuit filed by the state against tobacco companies.

The Texas Faculty Association and two other professors joined Hoover in challenging the law.

Nowlin granted a preliminary injunction against the expert-witness law and the Texas A&M; rule in August 1997. On appeal, the 5th U.S. Circuit Court of Appeals upheld Nowlin's ruling.

The 5th Circuit applied the test set out by the U.S. Supreme Court in its 1968 decision Pickering v. Board of Education. In that case, the high court established a two-part test for determining when government could restrict the speech of its employees. First, a court must determine whether the state restriction restricts its employee's speech on matters of public concern. Then, the court must weigh the employee's right to free speech against the state's interest in promoting efficiency in the workplace.

In the Hoover case, the 5th Circuit wrote that the state law and the university rule “both have the effect of curtailing speech on matters of public concern in this case.” Next, the 5th Circuit determined that the state's interest in preventing employees from speaking in a manner contrary to that of the state “is not the sort which may outweigh the free-speech rights of state employees under Pickering.”

“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,” the 5th Circuit wrote.

After the 5th Circuit's ruling, the case was sent back to the district court and on March 11 Nowlin issued a ruling from the bench that all other state universities in Texas cannot use the expert-witness law to silence the testimony of professors.

Scott Polikov, attorney for the plaintiffs, had discovered that most public universities in Texas had similar conflict-of-interest rules to Texas A&M;'s. The plaintiffs sought a ruling from Nowlin prohibiting all state universities from enforcing the expert-witness law and other conflict-of-interest rules.

“The entire system of these state university conflict-of-interest rules is unconstitutional,” Polikov said. “Judge Nowlin gave every indication that he agreed with us.”

At the hearing last week, Nowlin expressed grave concerns about the constitutionality of the outside employment conflict-of-interest rules at public universities in Texas.

“Judge Nowlin basically said that 'the don't bite the hand that feeds you' rationale is not enough to shut down faculty free-speech and association rights,” Polikov said.

Dr. Charles Zucker, executive director of the Texas Faculty Association, said in a news release that Nowlin's latest ruling was a “major victory for academic freedom and free speech.” Nowlin's statements from the bench mean that “these state university rules, as currently written, will go down in flames,” Zucker said.

James Todd, the assistant attorney general representing the state and the universities, told the Austin American-Statesman: “I know these universities want to be in compliance with the law as it has emerged in this case. It's the mechanics that need to be worked out.”

Nowlin did not schedule a hearing on the plaintiffs' motion for a permanent injunction to prohibit enforcement of the expert-witness law and the university conflict-of-interest rules. Polikov said that “the judge is waiting to see if the state attorney general can convince the other state universities to narrow the scope of their conflict-of-interest rules.”

“This whole episode over the expert-witness [law] and the attendant university rules left me with the notion of how fragile the freedom of speech is and that we must constantly remain vigilant about protecting First Amendment rights,” Zucker said.