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Friday, February 14, 2014

8th Circuit Oral Argument in Unsuccessful Faculty Candidate's Suit Claiming Discrimination by Iowa Law School Due to Her Conservative Views

Wagner 2Following up on Monday's post on Teresa Wagner's appeal to the 8th Circuit claiming she was denied a faculty position at the University of Iowa College of Law because of her conservative views:  Scott Johnson, The Wagner Case Oral Argument:

I attended the oral argument [32-minute audio] yesterday morning and spoke briefly with Ms. Wagner and her attorney on their way out of the courtroom afterwards. Here is my brief report. ...

The issue before the Court at this point is almost entirely procedural (with a Sixth Amendment overlay). The substantive issue that Peter Berkowitz writes about was vindicated by the Eighth Circuit in its 2011 decision reversing the dismissal of Ms. Wagner’s case on summary judgment.

Ms. Wagner’s counsel argued that whether the jury had been discharged for two minutes or two days, the magistrate judge’s actions following discharge were improper. He seeks reinstatement of the mistrial declaration and a new trial against the Dean (now the successor to Carolyn Jones, the original defendant). Ms. Wagner’s counsel has also raised an issue regarding the jury instructions, but it didn’t draw a single question and I don’t think it will play in the outcome of the appeal. ...

My favorite question during the oral argument was more of a statement, by Judge Beam. It came during the argument on behalf of the law school and was something like: “So, 49 Democrats and one Republican?” ...

The other two judges on the panel in Ms. Wagner’s appeal (Smith and Benton) are similarly good for Ms. Wagner. All three are Republicans. Judge Smith was on the panel that decided the first appeal in favor of Ms. Wagner. Judge Benton was incredibly thoughtful and well prepared. The panel on this appeal presents a sort of mirror image of the University of Iowa law school faculty.

My impression is that the best Ms. Wagner will come away with from the Court this time around is an order remanding the case to the district court for additional findings. I think it is less likely that the Court will reverse the district court decision outright and order a new trial than that it will affirm the district court. Of the three possibilities, my guess is that remand is the most likely.

Paul Mirengoff, Politically-Based Faculty Discrimination, a Test Case:

Today, the Eighth Circuit Court of Appeals heard oral argument in the case of Wagner v. Jones. ...  Teresa Wagner accuses the University of Iowa College of Law of violating her First and Fourteenth Amendment rights by refusing to hire her for its legal analysis, writing, and research program due to her strong pro-life views and activism. Her accusation is strongly supported by a comparison of her qualifications for the position and those of the two individuals selected by the law school. ...

The inference of discrimination arising from this comparison of credentials is bolstered by the fact that, at the time of the hiring decision, the law school had only one Republican on its 50-member faculty, and he had joined the faculty 25 years earlier. ... The law school’s stated reason for not hiring Wagner was that she “flunked” her interview by refusing to teach the “analysis” portion of the course. But, as Peter explains, faculty emails contradict this account. The law school conveniently destroyed its tape of the interview.

Wagner tried her case before a jury. The jury foreman told the Des Moines Register that “everyone in that jury room believed she had been discriminated against.” However, the jury could not agree as to whether the law school dean was exclusively responsible. The jury was thus declared “hung,” which should have meant a new trial. However, through manipulation described by Peter, the court contrived to convert this into a ruling in favor of the dean on the First Amendment count. It later dismissed the Fourteenth Amendment claim.  Let’s hope that the Eighth Circuit reverses and grants Wagner’s request for another trial.

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2014/02/8th-circuit-oral-argument.html

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Comments

I don't understand this case. Doesn't a plaintiff in an employment discrimination case have to claim to be in one of the 7 protected classes -- race, religion, gender, age, disabled, etc.? Republicans is not one of these. And she's free to be one, just not 'here.'

Posted by: eli bortman | Feb 15, 2014 5:25:56 AM

I'm a Republican university professor and, from what I've seen, I wouldn't want her as a colleague either.

Posted by: jmike | Feb 15, 2014 8:26:40 AM

One thing that has baffled me for as long as I can remember:

With all the academics and liberals talking about diversity, why don't they practice what they preach?

Posted by: xiata | Feb 15, 2014 9:24:46 AM

Xiata, regardless of the merits of the case, we all know that diversity only applies superficially - race, gender, sexual orientation.

True diversity - such as the content of one's character, or in an academic environment intellectual viewpoints, is not wanted. Adherence to liberal groupthink is all that matters. Conservatives are not merely wrong, they are morally repugnant and deserve to be excluded!!!

Posted by: Todd | Feb 15, 2014 3:09:40 PM