An fascinating new knowledgeable witness controversy has damaged out; this time in California. You’ll recall the Florida fiasco recounted right here and right here and right here.
A bunch of fogeys are suing the state over the training losses that that the state’s pandemic response imposed on kids. Plaintiff attorneys recruited knowledgeable witnesses from Stanford College to help their case. The California schooling division claims that the researchers signed an settlement to not testify towards the state as a situation of accessing the state’s knowledge on k-12 faculties throughout the pandemic. The prohibition, the state argues, extends to any testimony towards the state, even when that testimony doesn’t depend on the state’s personal knowledge.
From the state’s letter to one of many researchers:
This letter is to remind you of your obligations because the CDE’s licensed consultant performing analysis for and on behalf of the CDE. As CDE’s licensed consultant, in each paragraph 16 of the Settlement and paragraph 6 of the confidentiality provisions in Exhibit D, you agreed that you wouldn’t “testify, advise or seek the advice of” for any celebration apart from the CDE or the State Board of Training. This prohibits any work for Plaintiffs in Cayla J.
The ACLU is now concerned, arguing that any such provision within the knowledge entry settlement would quantity to an unconstitutional situation.
From the ACLU letter to the California Division of Training:
The contract situation at situation is viewpoint discriminatory. LPI’s contract with CDE specifies that, during the settlement, “LPI’s workers, executives, and different representatives shall not voluntarily testify for, seek the advice of with, or advise a celebration along with any mediation, arbitration, litigation, or different comparable continuing” the place the LPI-associated particular person “is aware of that the celebration is hostile to CDE, the State Superintendent of Public Instruction or the State Board of Training.” There isn’t any comparable restriction on an LPI-associated particular person’s capability to testify, advise, or seek the advice of in a continuing on behalf of CDE. Certainly, the contract clearly permits testifying as an knowledgeable for the CDE or different state companies. CDE could solely terminate the contract and impose penalties if a contractor testifies for or advises events who maintain pursuits hostile to it or different listed state academic entities.
Subsequently, the provisions maintain out of court docket, mediation, arbitration, or different comparable proceedings viewpoints and opinions which may hurt CDE’s and different state authorities entities’ pursuits in litigation, whereas permitting viewpoints and opinions that may serve the federal government’s pursuits and positions. Furthermore, by stopping people related to LPI from even advising or consulting with a celebration hostile to the federal government within the listed circumstances, these provisions hamper the power of the hostile celebration to evaluate info, knowledge, or analysis by itself. Subsequently, the provisions do what the Court docket in R.A.V. expressly prohibited by “proscribing solely [speech] crucial of the federal government.” R.A.V., supra, 505 U.S. at 384.1
If the federal government have been to attempt to institute this restriction by itself, outdoors of the context of a contract, it might be clear unconstitutional viewpoint discrimination. It might not obtain the identical outcome by conditioning a profit on a provision that has the impact of stopping specialists from testifying towards the state. See Perry, 408 U.S. at 597.
Information protection of the case right here and right here.
