The Volokh Conspiracy
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Expert Witness Redux in California
State tries to bar Stanford researchers from testifying against it
An interesting new expert witness controversy has broken out; this time in California. You will recall the Florida fiasco recounted here and here and here.
A group of parents are suing the state over the learning losses that that the state's pandemic response imposed on children. Plaintiff attorneys recruited expert witnesses from Stanford University to support their case. The California education department claims that the researchers signed an agreement to not testify against the state as a condition of accessing the state's data on k-12 schools during the pandemic. The prohibition, the state argues, extends to any testimony against the state, even when that testimony does not rely on the state's own data.
From the state's letter to one of the researchers:
This letter is to remind you of your obligations as the CDE's authorized representative performing research for and on behalf of the CDE. As CDE's authorized representative, in both paragraph 16 of the Agreement and paragraph 6 of the confidentiality provisions in Exhibit D, you agreed that you would not "testify, advise or consult" for any party other than the CDE or the State Board of Education. This prohibits any work for Plaintiffs in Cayla J.
The ACLU is now involved, arguing that any such provision in the data access agreement would amount to an unconstitutional condition.
From the ACLU letter to the California Department of Education:
The contract condition at issue is viewpoint discriminatory. LPI's contract with CDE specifies that, for the duration of the agreement, "LPI's employees, executives, and other representatives shall not voluntarily testify for, consult with, or advise a party in conjunction with any mediation, arbitration, litigation, or other similar proceeding" where the LPI-associated individual "knows that the party is adverse to CDE, the State Superintendent of Public Instruction or the State Board of Education." There is no similar restriction on an LPI-associated individual's ability to testify, advise, or consult in a proceeding on behalf of CDE. Indeed, the contract clearly permits testifying as an expert for the CDE or other state agencies. CDE may only terminate the contract and impose penalties if a contractor testifies for or advises parties who hold interests adverse to it or other listed state educational entities.
Therefore, the provisions keep out of court, mediation, arbitration, or other similar proceedings viewpoints and opinions that might harm CDE's and other state government entities' interests in litigation, while allowing viewpoints and opinions that would serve the government's interests and positions. Moreover, by preventing individuals associated with LPI from even advising or consulting with a party adverse to the government in the listed circumstances, these provisions hamper the ability of the adverse party to assess information, data, or research on its own. Therefore, the provisions do what the Court in R.A.V. expressly prohibited by "proscribing only [speech] critical of the government." R.A.V., supra, 505 U.S. at 384.1
If the government were to try to institute this restriction on its own, outside of the context of a contract, it would be clear unconstitutional viewpoint discrimination. It may not achieve the same result by conditioning a benefit on a provision that has the effect of preventing experts from testifying against the state. See Perry, 408 U.S. at 597.