Orlando Sentinel | By Jim Saunders, News Service of Florida | July 11, 2022
The state is asking a federal judge to shield former Education Commissioner Richard Corcoran from testifying in a battle about a 2021 law requiring surveys of “intellectual freedom and viewpoint diversity” on college and university campuses.
Attorneys for the university system’s Board of Governors and the State Board of Education filed a motion this month seeking a protective order to prevent a deposition of Corcoran, who stepped down as education commissioner April 30 but is a member of the Board of Governors.
In part, the attorneys pointed to what is known as the “apex doctrine,” which helps protect high-ranking officials from facing depositions in lawsuits if information can be gleaned from other sources.
“Plaintiffs have not, and cannot, demonstrate that Mr. Corcoran, as commissioner of the Florida Department of Education and a member of the Florida Board of Governors — possesses unique knowledge that cannot be gathered from less burdensome sources,” the motion said. “Thus, this court should grant this motion for protective order and prevent the deposition of Mr. Corcoran from proceeding.”
The United Faculty of Florida and other plaintiffs filed the federal lawsuit last year, arguing that the law violates First Amendment rights and could lead to the Republican-dominated Legislature punishing campuses because of political ideologies reflected in the surveys.
In part, the law required the Board of Governors and the State Board of Education to each have a survey that would be used by universities and colleges and that “considers the extent to which competing ideas and perspectives are presented and members of the university (or college) community, including students, faculty, and staff, feel free to express their beliefs and viewpoints on campus and in the classroom.”
The law (HB 233) also said survey results will be published each September, starting this year. Students and employees are not required to participate in the surveys, which were offered for the first time this spring.
Attorneys for the plaintiffs filed a notice June 13 about deposing Corcoran. The notice said the deposition would be “taken for purposes of discovery, for use as evidence, for use at trial, and for such other uses and purposes as are permitted under the Federal Rules of Civil Procedure and other applicable laws.”
Chief U.S. District Judge Mark Walker set a Tuesday deadline for the plaintiffs’ attorneys to respond to the motion for a protective order.
As education commissioner, Corcoran was a member of the Board of Governors and helped oversee the state college system, which is under the State Board of Education and the Department of Education. After Corcoran stepped down as education commissioner, Gov. Ron DeSantis appointed him to the Board of Governors.
The motion for a protective order said Corcoran, who also is a former state House speaker, “was not directly or personally involved with the passage or administration of the provisions of HB 233. Any relevant information Mr. Corcoran may possess is limited and readily available from sources other than a high-ranking government official.”
“Specifically, the Board of Governors and the Board Education are producing multiple witnesses to testify about the survey-drafting process and other topics identified by plaintiffs,” the motion, filed by attorneys with the GrayRobinson law firm, said. “Moreover, defendants have produced tens of thousands of pages of documents related to the issues in this lawsuit, and none of those documents demonstrate Mr. Corcoran was personally and directly involved with the passage or administration of HB 233.”
The motion said the Board of Governors and Board of Education will offer university system Chancellor Marshall Criser and state-college system Chancellor Kathy Hebda to testify. Also, a document filed Friday said J. Alex Kelly, a deputy chief of staff for DeSantis, is scheduled to be deposed July 19.
