Following 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:
- Unsuccessful Iowa Legal Writing Faculty Candidate Sues, Claiming Discrimination Due to Her Conservative Views (Jan. 29, 2009)
- Judge Dismisses Claim by Unsuccessful Iowa Legal Writing Faculty Candidate Alleging Discrimination Due to Her Conservative Views (Apr. 2, 2010)
- Unsuccessful Iowa Legal Writing Faculty Candidate Appeals Dismissal of Suit Claiming Discrimination Due to Her Conservative Views (July 13, 2010)
- 8th Circuit Re-institutes Discrimination Lawsuit by Unsuccessful Republican Faculty Candidate Against Iowa Law School Dean (Dec. 29, 2011)
- NY Times on Unsuccessful Republican Law Faculty Candidate's Discrimination Lawsuit Against Iowa (Jan. 10, 2012)
- Federal Trial Begins Today in Unsuccessful Republican Faculty Candidate's Discrimination Complaint Against Iowa Law School (Oct. 15, 2012)
- Iowa Law Prof: School Retaliated Against Me for Testifying That Liberal Bias 'Corrupts Everything School Touches' (Oct. 19, 2012)
- Jury Splits in Conservative Faculty Candidate's Hiring Bias Suit Against Iowa Law School (Oct. 25, 2012)
- Jurors Agree: University of Iowa Law School Discriminated Against Faculty Applicant Due to Her Conservative Views (Nov. 24, 2012)
- District Judge Dismisses Conservative Faculty Candidate's Motion for New Trial in Bias Suit Against Iowa Law School (Mar. 11, 2013)
- WSJ: 8th Circuit to Hear Appeal by Unsuccessful Republican Faculty Candidate Against Iowa Law School Dean (Feb. 10, 2014)