Paul L. Caron

Monday, February 10, 2014

WSJ: 8th Circuit to Hear Appeal by Unsuccessful Republican Faculty Candidate Against Iowa Law School Dean

Wagner 2Following up on my previous posts (links below) about Teresa Wagner's federal lawsuit claiming she was denied a faculty position because of her conservative views:  Wall Street Journal op-ed:  A Case of Faculty Discrimination Based on Politics, by Peter Berkowitz (Stanford University, Hoover Institution):

On Feb. 13 in St. Paul, Minn., the Eighth Circuit Court of Appeals will hear arguments in Wagner v. Jones. The appeal is procedurally complex. But the legal question at the heart of the original case has potentially far-reaching implications for public and private legal education. To wit, whether a candidate for a faculty position at a state law school could provide sufficient evidence that, in violation of her constitutional rights, she had been denied employment because of her political beliefs.

In a trial concluded 15 months ago, Teresa Wagner accused the University of Iowa College of Law of violating her First Amendment right of free expression and 14th Amendment right of equal protection under the law when the school's dean, Carolyn Jones, refused to hire her for its legal analysis, writing and research program. ...

Teresa Wagner is a pro-life conservative. Her résumé showed prior employment with the National Right to Life Committee and the Family Research Council, both socially conservative organizations in Washington, D.C.

The University of Iowa's law-school faculty, like most law-school faculties, is overwhelmingly liberal. When Ms. Wagner was considered for the job, the law school had only one Republican on its 50-member faculty, according to party registration records obtained from the Iowa Secretary of State, and he had joined the faculty 25 years earlier.

In deciding whether to hire Ms. Wagner, neither her politics nor those of the law school's faculty should have been relevant. Yet the day after the law-school faculty voted to reject Ms. Wagner, in January 2007, Associate Dean Jon Carlson wrote to Dean Jones in an email, "Frankly, one thing that worries me is that some people may be opposed to Teresa serving any role, in part at least because they so despise her politics (and especially her activism about it). ... Other than by looking to politics, it is difficult to explain the law school's efforts to avoid hiring Ms. Wagner. ...

Hiring decisions should be based on candidates' merits, including their ability to vigorously present in the classroom and criticize conservative as well as progressive views. If the Eighth Circuit protects Teresa Wagner's constitutional rights, the court will also bolster legal education in America by promoting its depoliticization.

Prior TaxProf Blog coverage:

Legal Education | Permalink


"Is there no end to the perpetual victimization among the Bible-thumping teahdists? "

Is there no end to the bigotry, dehumanization, and otherizing that leads to victimization?

From reading your comment, it looks like you don't like a group of people and don't care if they are mistreated. You might even be cheering on the mistreatment.

"Whatever happened to the conservatives who used to stand for meritocracy? "

Why should conservatives be the only ones who are expected to achieve success based on merit, especially in a system in which merit takes a back seat to so many other attributes?

Posted by: wodun | Feb 10, 2014 5:16:23 PM

Just as there's Pepperdine and Regent today, there were the Jewish law firms in the 1950's. And like those little college law schools, the Jewish law firms punched above their weight.

Posted by: Eric Rasmusen | Feb 10, 2014 4:29:16 PM

Did you bother to consider Carlson's email?
This is a taxpayer-funded state school, not a voluntary private association.

Posted by: Mike Petrik | Feb 10, 2014 12:14:43 PM

Cent Rieker…dismissing her by asserting that she simply isn’t qualified is an easy response, but do you really believe that all of the republican applicants for the last 25 years equally unqualified? Attacking her dodges the greater issue of whether there is significant political discrimination in law school hiring practices and what should be done about it. I don’t see anyone denying that such discrimination exists because I think we all know that it is quite prevalent. But to respond to your question, there are not too many Cravath attorneys teaching LRW classes, or even Stanford grads for that matter.
Lee…based on the standard stated in your comment it should not be illegal to discriminate based on religion. After all, religion is “a choice, not a biological condition nor an accident of birth” and, according to you, “excluding someone on the basis of what he or she believes to be true is at the heart of the right to free association.” Let’s just say I disagree with the standards you assert in your post.

Posted by: Anon | Feb 10, 2014 11:47:48 AM

Look at her resume and compare it to most law professors. The Family Research Council isn't quite the same thing as Cravath.

Wagner was a trial attorney, and practiced. Jones, the dean who rejected her, went straight from Yale to teaching, and by her CV doesn't appear to have practiced a day of law in her life. Apparently, you don't need biglaw to be a dean or a professor.

You just need to be a liberal.

Posted by: Phelps | Feb 10, 2014 10:53:53 AM

Is there no end to the perpetual victimization among the Bible-thumping teahdists? This person can apply to Regent, Ave Maria, Pepperdine or schools of similar ilk. Whatever happened to the conservatives who used to stand for meritocracy? Look at her resume and compare it to most law professors. The Family Research Council isn't quite the same thing as Cravath.

Posted by: Cent Rieker | Feb 10, 2014 9:55:58 AM

She's another casualty in the left's war on free thinking women.

Posted by: forrest | Feb 10, 2014 8:35:31 AM

Ideology is a choice, not a biological condition nor an accident of birth. Excluding somene on the basis of their race or some other superficial condition that is beyond their power to control is illegitimate. Excluding someone on the basis of what he or she believes to be true is at the heart of the right to free association.

I think it is disgusting that someone would be excluded because she's not a crypto-marxist, but that the crypto-marxists would exclude her based on her refusal to join them in la-la land is not illegal.

If a school is punished for excluding a non-leftist, it sets a very dangerous precedent and gives the left a heavy hammer with which to beat organizations that would prefer to keep them out as well.

Do we want the Boy Scouts forced to accept NAMBLA types? Give the left this tool and that is PRECISELY what they will use it for.

Posted by: Lee Reynolds | Feb 10, 2014 7:50:53 AM

The individual case results may not matter but if there had been pushback like this all these years, the leftists would have been a lot less brazen about excluding conservatives from college jobs. More such attacks are needed.

Posted by: Amit R | Feb 10, 2014 7:34:55 AM

Please explain why a simple disparate-impact analysis (e.g., the fact that there is only one other Republican faculty member) would not be enough by itself to establish bias; if it works for race, why not for ideology?

Posted by: David Murray | Feb 10, 2014 7:28:27 AM

What's perhaps most intriguing is that 'diversity' is used to justify race-based and sex-based admissions programs at law schools and yet here we have what is perhaps the least-represented group in law school faculty, a pro-life woman, being excluded based on her diversity. That, if for no other reason, is why she should win and win big.

Posted by: Michael W. Perry | Feb 10, 2014 5:50:25 AM

Unlike professors of Con Law, LRW professors don't get a lot of opportunities to indoctrinate their students. Which goes to show just how obsessed liberal academia can be with shutting out conservatives.

Posted by: SWLIP | Feb 10, 2014 5:43:13 AM

I don't know if this is a winnable case, but this plainly happens quite frequently, and it would be nice to see someone called on it for a change.

Posted by: michael livingston | Feb 10, 2014 4:38:24 AM