Teresa Wagner, Associate Director of the University of Iowa College of Law Writing Resource Center, has filed a lawsuit claiming that her application to become a legal writing professor at the law school was rejected because of her conservative political views. Press accounts say that she is arguing that denial of this kind of job on ideological grounds violates the First Amendment.
I personally don't believe that ideological discrimination in government hiring violates the Constitution. Quite often, "personnel is policy," and both conservative and liberal administrations have a legitimate need to hire people who are ideologically committed to carrying out their programs. If Barack Obama appoints mostly liberal Democrats to staff his administration, that surely doesn't violate the First Amendment.
There is far less justification for ideological discrimination in faculty hiring at state universities then for many other government jobs. After all, universities need ideological diversity in order to further intellectual inquiry and debate. Still, I think there are rare circumstances when a professor's ideology can legitimately be considered in faculty hiring.
Be that as it may, I don't believe that state universities that engage in more ideological discrimination than I would approve of violate the Constitution. Government involvement in ideologically-driven curriculum and hiring decisions is an inevitable result of having public schools and universities in the first place. Some of this discrimination is ill-advised and unfair. But that doesn't make it unconstitutional.
UPDATE: A few commenters and readers seem to assume either that I am denying the existence of ideological discrimination against conservatives in academia or that I think the overwhelming preponderance of liberals in academia is a good thing. Neither is true. Indeed, I devoted a whole series of posts to showing that there is a large ideological imbalance in academia, and suggesting that ideological discrimination is one of the causes of it (though not the only one). In this post, however, I am arguing that ideological discrimination in faculty hiring by state universities doesn't violate the Constitution. That is not the same thing as saying that I approve of it. There are many bad policies that still aren't unconstitutional.
UPDATE #2: A copy of Wagner's complaint is available here, courtesy of senior Conspirator Eugene Volokh. From it, I learn that Wagner was a legal writing adjunct professor at George Mason University Law School from 1997 to 1999. I should therefore note that I don't know Wagner (her tenure at GMU was several years before I arrived), and that her previous affiliation with GMU does not affect my judgment of the merits of her claim.