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Legal Writing Job Candidate Files Lawsuit Claiming that She Was Rejected by the University of Iowa Law School Because of Her Conservative Views:

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.

Whatever you want it to be:
As an Iowa Law grad, I would not be surprised if they indeed failed to hire the plaintiff solely because of her affiliation with Nat'l Right to Life and the FRC. Whether it's illegal or not I'll leave to others to debate, but it's certainly petty and a violation of the principles universities should hold dear.
1.26.2009 6:41pm
josil (mail):
It is not clear that universities hold any principles dear except those of economic self interest, like almost all other kinds of organizations. Of course, there is the pretense (or delusion) that universities are free from cant.
1.26.2009 6:49pm
Tennessean (mail):
Talk about going for broke. Win this lawsuit, you're fine. Lost this lawsuit, and everyone forever thinks of you as a problem hire.

(And that is not viewpoint-based. Unless this is slam-dunk discrimination, having employees second-guess business decisions in federal court is a mammoth pain in the butt.)
1.26.2009 6:49pm
A Law Dawg:
And here I thought viewpoint diversity in law schools was a compelling state interest on par with national defense.
1.26.2009 6:52pm
Real American (mail):
Get ready for a comeback of loyalty oaths!
1.26.2009 6:58pm
K. Dackson (mail):
I would quibble with the good professor.

For sure, political appointments (and firings), as in the case of US attornyes are fair game for "ideological purity".

However, I do not see how a professorship at a public university rises to the same test. Indeed, the cases he cites are more closely related to the person's competance in the position.

But, then again, I'm just an engineer; what do I know.
1.26.2009 6:59pm
Comment on Post:
Hmmm. Somebody should show Ilya's post to Glenn Fine, DOJ's Inspector General.
1.26.2009 7:06pm
SPO:
It would be interesting if this woman made a Civil Rights Act disparate impact claim.

I'm not sure how a job, a government benefit, can be denied on the basis of one's political beliefs. What's the difference between that and denial of welfare benefits on the basis of ideology? Or let's take another hypo: clearly it would violate the First Amendment to deny admission to a public school on the basis of ideology, so how do you distinguish that from denying someone a job.

I've always wondered why ordinary contract principles don't work in these discrimination cases, particularly the racial discrimination cases. Every college application states that the decisions will not be made on the basis of race, color, creed etc. Yet decisions are made on that basis. Why can't people make a simple contract claim based on the application fee and the plain language of the form?
1.26.2009 7:13pm
Edward A. Hoffman (mail):
Even if the hiring committee was biased against conservatives, and even if making decisions based upon such bias is illegal, how do we know that it's the reason Ms. Wagner didn't get the job? If there was only one opening and at least two conservatives applied for it, I think her argument would fail right away since her claim does not suggest she was treated worse than the other conservative applicant. In other words, at least one conservative would have been denied the job even without the discrimination, and Ms. Wegner might have been that one applicant.

To prove her case, Ms. Wegner will probably have to show the political views of every applicant. She will probably also have to show that those views were clear to the hiring committee, and that committee members made it a major factor in their decisions. On top of that, she will have to show that she was objectively the best candidate in the absence of illegal discrimination (assuming, again, that discriminating on the basis of political leanings is illegal). That's a hard burden to meet, even if she's right.
1.26.2009 7:22pm
alkali (mail):
The points raised in the article in support of Ms. Wagner's case are as follows (bracketed numbers added for reference):

To bolster her case, [1] the lawsuit dissects the political affiliations of the approximately 50 faculty members who vote on law-school faculty hires; 46 of them are registered as Democrats and only one, hired 20 years ago, is a Republican, the lawsuit states. Ms. Wagner also says that [2] a law-school associate dean suggested that she conceal her affiliation with a conservative law school [Ave Maria] and [3] later told her not to apply for any more faculty positions.
[1] is evidence of discrimination, but at best it is indirect evidence -- it's the kind of evidence that you would put forward to corroborate more direct evidence of discrimination. [2] and [3] do not strike me as particularly telling (in particular, the many problems at Ave Maria are well known).
1.26.2009 7:36pm
man from mars:
Conservatives can never succeed in academia, except in very small, localized clusters. The reason for this that by definition, conservatives advocate meritocratic hiring; their opponents advocate political hiring.

Eventually, under this dynamic, just by operating naturally, liberals must (statistically) obtain a majority on faculty hiring committees. The process is then irreversible.

Thus, to the extent conservatives are meritocratic, they will be slowly but inexorably pushed out of academia.

(A similar dynamic arises in many other areas of law. For example, advocates of a liberal, functionalist philosophy will always eventually win in the courts, because they feel free to overturn textualist court decisions whose result they disagree with, but textualists do not feel free to overturn functionalist decisions. Eventually, all the key precedents become functionalist.)
1.26.2009 7:36pm
Arkady:
@man from mars:


The reason for this that by definition, conservatives advocate meritocratic hiring; their opponents advocate political hiring.



However, according to the Chicago Tribune:


Law school dean Carolyn Jones, says Teresa Wagner was rejected for a teaching position not because of her conservative politics but because she was less qualified than other applicants.


So it would seem that, according to the school, it was a question of merit, and she was found wanting as regards other candidates. I suppose this is an empirical question that can be settled by comparing her resume to that of the others.
1.26.2009 7:54pm
Matthew K:

To bolster her case, [1] the lawsuit dissects the political affiliations of the approximately 50 faculty members who vote on law-school faculty hires; 46 of them are registered as Democrats and only one, hired 20 years ago, is a Republican, the lawsuit states.

And what did the applicant pool look like? I doubt it was that skewed, but stranger things have happened. I'd like to see what the defense has to offer
1.26.2009 7:54pm
Steve H:

I'm not sure how a job, a government benefit, can be denied on the basis of one's political beliefs. What's the difference between that and denial of welfare benefits on the basis of ideology? Or let's take another hypo: clearly it would violate the First Amendment to deny admission to a public school on the basis of ideology, so how do you distinguish that from denying someone a job.


I agree with this. Maybe it's an Equal Protection argument rather than the First Amendment, but I don't think a public entity has the right to discriminate in public benefits on the basis of political ideology unless that ideology is relevant to the matter at hand.

That said, there is probably an Iowa statute that prohibits the state or the University from discriminating on the basis of political beliefs, so the constitutional issue is probably unnecessary.
1.26.2009 7:54pm
Burt Likko (mail) (www):
Steve H and SPO — bear in mind that political affiliation is not a protected class under either the Fourteenth Amendment or the Civil Rights Act.
1.26.2009 7:59pm
Burt Likko (mail) (www):
Alkali -- re: point [2], perhaps the reason she was encouraged to downplay her credentials from Ave Maria Law School is that AMLS does not enjoy a reputation for producing academically strong graduates. Yes, it has been ABA accredited since 2005, so I don't actually know if that's true or not, but if so, that would seem to have been helpful advice given to the plaintiff. The fact that AMLS does operate under the (invited) reputation of being politically and socially very conservative is one thing, but that has nothing to do with whether they have a strong curriculum, a well-published faculty, and a body of alumni doing notably good work for bench and bar. Given that AMLS is only ten years old, and has only been accredited for four of those years, it seems unlikely that even with the fairest of circumstances, it would have accumulated a reputation significant enough to be competitive with other, more blue-blooded schools.

And we couldn't expect a law school hiring committee to be snobby about graduates from newer schools! Could we?
1.26.2009 8:07pm
Thomas_Holsinger:
Ideological-based discrimination in hiring is death on non-governmental public institutions dependent on legislative funding given that the political parties have become ideolgically-based. The University of California and the California State University system are learning this the hard way. Their budgets have become objects of legislative boondoggles because they've lost crucial legislative support.

First they lost GOP support because GOP votes for their budget are votes to increase Democratic campaign contributions, because Republicans aren't hired by UC/CSU. California Republican legislators, as a group, started offering pieces of the UC/CSU budgets to Democratic legislators for use in unrelated boondoggles of interest to the Democratic legislators, in exchange for other favors. With a fairly solid 35-40% vote in the legislature for a given deal from Republicans alone, the Democratic legislators offered these deals only needed to round up another 11-16% of Democratic legislative votes to secure these deals.

There simply was no downside for a united Republican caucus in the California legislature in raiding the UC/CSU budget for funding to offer in other deals. Less money for UC/CSU meant no loss in campaign contributions to GOP legislators, but incremental losses to Democratic legislators.

After 10-15 years of that, UC/CSU funding from the legislature began to be significantly impacted and worse, it opened the door for raids on their budgets by most any group of legislators, and not merely the GOP minority acting as a group.

I expect the same process is at work in other states.
1.26.2009 8:11pm
monboddo (mail):
Looking around the Iowa law school website for a few minutes will reveal something interesting: the folks teaching legal writing are incredibly talented. In particular, several have degrees from high-powered law schools (Columbia, Harvard) and an Iowa MFA in creative writing, to boot. This doesn't mean that Wagner wasn't discriminated against, but it does suggest that there may well have been a lot of other very qualified applicants for the job.
1.26.2009 8:15pm
Eighties Iowa Law Grad:
Don't get misty eyed for Ms. Wagner just yet. She was invited to compete for a full-time position, based on a resume that disclosed her conservative affiliations. She passed an initial interview with an appointments committee composed of some of the more liberal members of the faculty. If the College wanted to tank conservatives, it would not have invited her back to make a presentation to the faculty. Iowa's liberal, mostly in the good sense of the word, that everything is tolerated, even wear-it-on-the-sleeve conservatives.

Wagner's complaint rests largely on speculation that Professor Randy Bezanson, a clerk to Blackmun when Roe v. Wade was written (and formerly dean at Washington &Lee), disliked her for her politics, rather than his stated reason, that he disliked her formal presentation to the faculty. Bezanson's a pretty straight shooter, not a doctrinaire liberal. Wagner seems to be one jumping to prejudgment. Indeed, her complaint gratitutously attaches materials claiming liberal bias on the part of other professors in the College, including an emeritus professor who is an open lesbian (her partner also taught at the school) and is no longer a part of the faculty (she now teaches at Santa Clara).

Even in her complaint -- which should be her best face forward -- Wagner comes across as nothing more than a disappointed job applicant who can't accept that she blew her big opportunity to wow the people who count. That's not political discrimination; that's life.
1.26.2009 8:18pm
Not using name for obvious reason:
My father is a professor emeritus at a state university. I forwarded him this article yesterday and his response was "I see this all the time."
1.26.2009 8:20pm
American Psikhushka (mail):
Those facts are pretty much a toss-up.

Now if an employer was eavesdropping on an employee's private e-mails and phone conversations and started to harass and discriminate against that employee based on their political views, personal life, sex life, opinions, etc. that would certainly be a very, very different story. For a government employer or private employerS.
1.26.2009 8:23pm
gwinje:
This looks more like wanker discrimination to me.
1.26.2009 8:34pm
Steve H:

Steve H and SPO — bear in mind that political affiliation is not a protected class under either the Fourteenth Amendment or the Civil Rights Act.


Oh, sure. I would be surprised if the Civil Rights Act had anything to do with this.

But even if a person isn't the victim of a suspect classification under the Fourteenth Amendment, doesn't discriminatory government action still have to pass some sort of rationality test? And there is no rational basis for refusing to hire a legal writing instructor on the basis of ideology.

(This assumes that she can actually prove her case, which is a huge if.)
1.26.2009 8:42pm
Steve H:
To follow up, it would strike me as odd for a faculty to refuse to a legal writing professor on the basis of ideology. I would think that if the faculty were using ideology to make hiring decisions, and favoring liberal over conservative, then the faculty would jump at the chance to hire a conservative for a legal writing position. That enables them to fulfill their quota of conservative hires while still saving the "real" professorships for their ideological kin.

(I say this as someone who is (a) pretty liberal, especially around this place, and (b) a former legal writing instructor.)
1.26.2009 8:46pm
Andy Freeman (mail):
> the folks teaching legal writing are incredibly talented. In particular, several have degrees from high-powered law schools (Columbia, Harvard) and an Iowa MFA in creative writing, to boot.

How does "degrees from high-powered law schools" support the claim that the folks teaching are "incredibly talented", let alone incredibly talented at legal writing?

Is a MFA in creative writing necessarily relevant?
1.26.2009 9:14pm
A.S.:
What a frivilous lawsuit. Everyone knows that discriminating against Republicans and conservatives is fine and dandy. It's only discrimination against liberals that is horrendously illegal and inappropriate.

Remember this easy rule: IOKIYAD!
1.26.2009 9:28pm
A. Zarkov (mail):
" ... 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."

I think it does. Elected officials don't own the government, it belongs to the people. Why should they have the right to chill free speech by declaring certain ideas and viewpoints as a disqualification for a government job? Everyone has a right to apply for and judged fairly for a government job. Unless we can show that someone's ideology disqualifies him for a particular job function, this kind of discrimination should not be tolerated. It would do both liberal and conservative administrations a lot of good if they had people of many viewpoints working for them.

I'm going to guess that Somin would have a lot of trouble with discrimination against homosexuals. Why should a sexual preference rate a higher degree of protection than political or other ideology?
1.26.2009 9:29pm
David Warner:
Don't forget that 50-odd years ago when the march through the institutions started, it was the Left that faced this sort of (alleged) discrimination. They bucked up and did what they had to do. If conservatives wish to regain their former influence, they'd do well to follow that example.

The first step would be valuing the institutions themselves instead of half-assing it.
1.26.2009 9:32pm
A.S.:
Hey, let's also remember:

Where the hiring was 63 conservatives, 2 liberals, and 34 with no identifiable ideology - that's outright proof of completely illegal ideological hiring. Nothing else is needed - throw the person doing that illegal hiring in jail!

But where it is 46 Democrats and 1 Republican, out of 50 people, that's not proof of anything at all.
1.26.2009 9:34pm
alkali (mail):
@Burt Likko: I don't think her degree was from Ave Maria; it suggests she had some other affiliation with that law school. The law school has had some internal disputes, which might be a reason not to tout your affiliation with it if you were applying for a position as a faculty member. Alternatively, if someone disparages AMLS because they are snobby, that's certainly not admirable, but it's not actionable.

@Matthew K: And what did the applicant pool look like? I doubt it was that skewed, but stranger things have happened. I'd like to see what the defense has to offer

If this were a racial discrimination case I'm not sure this gets past a motion to dismiss on these facts, although I'm not an employment lawyer.
1.26.2009 9:40pm
Order of the Coif:
...
1.26.2009 9:41pm
Order of the Coif:
Sorry.

After 35 years on a law school faculty, I can echo Not Using his name's father: "I see this all the time."

I've even seen a candidate (who was #1 before this was brought up) turned down because he, a Washington DC area resident, rooted for the Redskins. That was seen by the totally-off-the-wall liberals as conclusive "proof" that he discriminated against Native Americans. No one, of course, ever asked him, they just voted him out of the running.

Because I'm mostly Libertarian, I wouldn't be hired today even though my credentials (as of time of hiring) are better than any other faculty member at my school.
1.26.2009 9:44pm
corneille1640 (mail):

" ... 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."

I think it does. Elected officials don't own the government, it belongs to the people. Why should they have the right to chill free speech by declaring certain ideas and viewpoints as a disqualification for a government job? Everyone has a right to apply for and judged fairly for a government job.

Well, I tried to mail my resume for Treasury Secretary to the Obama administration and never heard back from them. If I don't hear by next week, maybe I'll give them a call.
1.26.2009 10:07pm
Derrick (mail):
Hey, let's also remember:

Where the hiring was 63 conservatives, 2 liberals, and 34 with no identifiable ideology - that's outright proof of completely illegal ideological hiring. Nothing else is needed - throw the person doing that illegal hiring in jail!

But where it is 46 Democrats and 1 Republican, out of 50 people, that's not proof of anything at all.


I am so glad that Republicans are now supporting affirmative action. I'm sure that I can count on A.S. and others to be just as appalled at the racial hiring practices of College Football coaches, the Ad Agencies, contractors and the like. I can't wait to enlist like minded conservatives in our common cause to end discrimination.
1.26.2009 10:13pm
A.S.:
I am so glad that Republicans are now supporting affirmative action.

And the text in my post where I support affirmative action is located... where?
1.26.2009 10:25pm
Bama 1L:
There has been some confusion about where Wagner went to law school and what her connection to Ave Maria was. The Des Moines Register reported:


Wagner graduated from the U of I College of Law in 1993 and practiced for two years in Iowa City, before she moved with her husband to Washington, D.C. to work at conservative advocacy groups. The 44-year-old taught legal writing as an adjunct law professor at George Mason University in Virginia, and declined a tenure-track faculty position at the conservative Ave Marie (sic) School of Law in Ann Arbor, Mich.
1.26.2009 10:56pm
Hoosier:
Thomas

I expect the same process is at work in other states.

I hope you're right. But I have been disappointed that it is moving so slowly s to be imperceptible.
1.26.2009 10:57pm
Sergei Zhulik (mail) (www):
I have to agree with Ilya here. The Constitutional analysis does start at a (seemingly attractive) First Amendment claim: a state action that seems to impair protected speech. And the automatic assumption would be to cry foul--

But public entities have almost complete control over the speech of its agents. It may seem counterintuitive, until one recognizes the real issue in such situations is a conflict between the Vesting Clause and the First Amendment. And since we're talking only about indirect chills on speech by virtue of employment decisions made in at-will situations, the Vesting Clause interest always trumps. (Ms. Wagner isn't facing criminal or civil liability here, after all. She was merely subject to an adverse employment decision.) And this Vesting Clause primacy is what validates laws like the Hatch Act, which places strong speech constraints on government employees as conditions of their posts.

Now, as private citizens, of course (e.g., when employees are off the clock), government officials remain free to exercise their Constitutional guarantees. But the fly in the ointment is really whether, with respect to certain rights, government agents can ever be considered private. The issue comes up a lot in situations where employees claim violations of their Qualifications Clause rights to run for public office. Under the Hatch Act, they can't run; they have to resign their post first.

Note that this limitation has always been upheld in the courts. Since political candidacy would always touch the public life of the relevant official, this right could never be exercised without esmasculating the Vesting Clause.

Speech issues, of course, are less clear cut. Obviously, government agents could be (and would be) prohibited from holding a pro-life rally in the conference room. And generally, they could off government property on their own time. But what about in uniform? How about in the role as keynote speaker where they promulgate their views as being "in accord with the rest of the Intelligence Community?" Clearly, the circumstances of each individual case are important in determining how far the state's control over its agents can extend. And the crucial test seems to be the objective perception of if the citizen's views are representative of his state employer.

Unless you want to get laid off, I wouldn't recommend wearing an antiwar sandwich sign while in battle fatigues. And I wouldn't recommend proposing using a position you seek as a bully pulpit for the nonproliferation movement unless you really don't want the job.

I guess that brings us full circle to the instant case. Obviously, with the case of professors, one brings one's political leanings and civic objectives directly into their professional life. Indeed, it would be poor and fruitless policy to try to prevent that. These people are salaried to be thoughtful commentators and learned instructors. To expect that a biologist's patronage of Creation Museums or economist's publication in the Daily Worker could be disentangled from the exercise of their post is absurd. And since it's obvious the institution they seek to represent will ultimately be associated with these personal views, a public university has every right to control it. This means if U of I adopts a left-leaning mission, they're within their right to implement it. And if Cincinnati Law (where I hail from) adopts a right-leaning one (they seem to), so be it.

I'm somewhat surprised, quite frankly, that Ms. Wagner, with legal expertise enough to get law faculty interviews, decided to pursue this matter.

Oh well.
1.26.2009 11:00pm
RPT (mail):
"Man from Mars:

The reason for this that by definition, conservatives advocate meritocratic hiring; their opponents advocate political hiring."

Calling Monica Goodling.....
1.26.2009 11:23pm
Thomas_Holsinger:
Sergei,

My first thought on hearing of this action was that the plaintiff has some motive other than prevailing on the merits, i.e., precedent or publicity, etc., or possibly because she has some inside information with settlement (aka blackmail) value. I would not at all be surprised if she is acting as a figurehead plaintiff for some group which is paying her legal fees.

I have had actions roll through my trial court which were intended only to create an obscure appellate precedent.
1.26.2009 11:32pm
DangerMouse:
My first thought on hearing of this action was that the plaintiff has some motive other than prevailing on the merits, i.e., precedent or publicity, etc., or possibly because she has some inside information with settlement (aka blackmail) value.

If the libs who control academia know that they can get sued for discriminating against conservatives, even if the case might be lost, it is probably worth it as a deterrent effect to sue.

The only reason why this lady's lawsuit doesn't have a prayer is because most likely, the courts are stacked with libs as well.
1.27.2009 12:29am
giovanni da procida (mail):

The only reason why this lady's lawsuit doesn't have a prayer is because most likely, the courts are stacked with libs as well.


How right you are, DangerMouse! The majority of Federal Judges were appointed by those notorious libs George W. Bush, Ronald Reagan, and George H.W. Bush (474 out of 807 *). The very definition of a stacked judiciary!

*numbers from the Federal Judicial Center, by way of msnbc
http://www.msnbc.msn.com/id/28681850/
1.27.2009 12:41am
Sergei Zhulik (mail) (www):
Thomas,

Good observation. We're definitely living in an age where meritless legal claims nonetheless alter popular perceptions of the law. And risk-averse laypeople change their behavior as a consequence.

I wonder how many state legislators will think impeachment proceedings require criminal Due Process protections now. (Thank you, Mr. Blago.) Or, I wonder how many people honestly believe Holder could be enjoined to prosecute former Bush officials. (Who exactly would carry out that court order, anyway?)
1.27.2009 12:48am
DangerMouse:
Since when does being appointed by a republican mean you won't be a lib? Does Kennedy or Souter not ring a bell? Libs to the core, because to them the Constitution means not what it says but what they want.

Anyway, a lib will never punish liberal groupthink. Doing so is like the Pope punishing people for being too Catholic.
1.27.2009 12:49am
Simon P:
My guess: the due-process claims don't get past a motion to dismiss, and the First-Amendment claim doesn't pass summary judgment.

You don't have a due process claim unless you have a property or liberty interest, and you don't have a property interest in public employment unless you have an objectively reasonable expectation of employment. If we fit Wagner's complaint into this doctrinal form, then we have to take Wagner to be saying that her "prior successful law teaching" was sufficient to create such an expectation. If that were true, then any other unsuccessful applicant with "prior successful law teaching" would have had an equivalent constitutional claim. The doctrine permits courts to avoid this preposterous result by looking to industry practices in order to assess the reasonableness of a particular expectation. Here, the court would simply acknowledge that no one in the higher education industry would believe that the job posting Wagner cites would preclude the people in charge of hiring from narrowing a field of candidates down using such common metrics as law school rank or GPA. These are very common ways to make distinctions in the crowded field of legal academia.

That's if we interpret Wagner's complaint in a way that matches up with the doctrine. As the complaint stands, it makes a lot of allegations that the process is unfair, but this is not enough to make out a deprivation of due process. There must be a deprivation of liberty or property before the fairness of the means by which this accomplished becomes relevant. The complaint does not allege that Wagner had a property interest in the job, nor does it allege that her liberty of free speech was deprived by the lack of fairness in the process. It should be dismissed for failure to state a claim.

The free speech claim at least gets the elements right. The government cannot condition a government benefit -- here, public employment -- upon a person's exercise of their free speech rights. However, with one exception, the facts that Wagner raises don't suggest that she was denied employment because of her political views or association. The only fact that suggests otherwise is the Associate Dean's advice that Wagner conceal her association with Ave Maria School of Law -- though even this, as anyone familiar with the legal field will recognize, may have had less to do with Ave Maria's political affiliation (note her open associations with GMU, the FRC, and NRLC) than with Ave Maria's scholarly pedigree and penchant for controversy.

The complaint and the comments here both seem to have confused evidence that might be relevant to a claim of discrimination as evidence that the hiring decision was based on speech. This is simply not sufficient to support a First Amendment claim. Wagner must prove that the faculty refused to hire her because of her political speech and association, but all that the complaint alleges is that the faculty is disproportionately of a different political stripe. That the faculty may be involved even in a consistent pattern of ideological discrimination is simply not relevant to whether Wagner's exercise of her First Amendment rights were the basis of the faculty's decision not to hire her.

The complaint suggests that the claimed reasons backing the decision not to hire -- an inferior faculty presentation and her academic performance -- were merely pretextual, but the alleged facts do not seem to give any good reason to believe that they were -- again, these are perfectly common reasons to refuse to hire a candidate for an academic position. The only reason given to believe that the stated reasons were pretextual seems to be the announcement's failure to include them as potential bases of decision. That seems rather plainly insufficient.

What's more, such a showing of "pretext," which might be sufficient to shift the burden of production to an employer in a discrimination case, is not enough to make out a First Amendment claim. It is not sufficient, for First Amendment purposes, merely to show that a public employer's stated reasons not to hire someone were, more likely than not, pretextual. You must show that their actual reasons were to discriminate against someone because of their exercise of free speech. Wagner's complaint comes nowhere close to suggesting that she has evidence that this was the case. The Free Speech claim will probably fail at summary judgment.

It would be interesting should the court overlook these deficiencies, in favor of the special First Amendment values Ilya notes as relevant in the higher education context. ("There is far less justification for ideological discrimination in faculty hiring at state universities then for many other government jobs.") This would be interesting because the Left has generally been unable to make lasting victories for "academic freedom," as something that ought to be guaranteed by the First Amendment. Should the Right, here, accomplish an acknowledgment that public universities have a special commitment to fostering an open environment where inquiry can proceed without inhibition, then it would continue the pattern within constitutional jurisprudence, where progressive victories are won by conservative complainants.
1.27.2009 1:04am
Simon P:
On a more polemical note, I always find it interesting how frequently conservatives claiming to be victims of "liberal academia" demonstrate, through their efforts to vindicate their rights, why they deserved to be discriminated against by the "liberal academy." They often end up writing letters and filing lawsuits that concisely demonstrate their very tenuous grasp of reality, reason, and the law. Good riddance, I say.
1.27.2009 1:11am
Thomas_Holsinger:
Simon P,

Don't assume the objective here is judgment for the plaintiff. I suspect there are other motives.
1.27.2009 1:24am
Simon P:
Thomas: I can appreciate that there may be other incentives at work here, but that doesn't mean we can't or needn't discuss the merits of a complaint, which is, ancillary incentives notwithstanding, a form whose "objective" necessarily is "judgment for the plaintiff."

Anyway, I don't find the legal merits to be beside the point, if Wagner is just a front for some kind of broader ideological attack on the liberal academy. That the movement can't find a suitable point-person or provide that person with competent legal counsel helps to expose the movement as the expression of a collective martyr complex that it is.
1.27.2009 1:38am
ReaderY:
How do people who believe that the First Amendment prohibits law schools from discriminating on the basis of viewpoint reconcile this view with a belief that law schools have a write to judge prospective applicants, and students, on the basis of quality. Surely the first amendment protects mediocrity wherever it applies: If government attempted to prohibit people from making non-excellent speeches in public squares, surely the courts would strike it doen as a form of content-based prohibition. The idea that judging quality is not judging content simply wouldn't fly.

With a right to judge quality, and for that matter germaneness, law schools (like other schools) couldn't exist. The government can be in the education business at all only if education officials are permitted to prefer one kind of speech as opposed to another and to hire people based on whether they like what they have to say. If educators are permitted to prefer Shakespeare to See Spot Run, I don't see any way to distinguish prefering Shakespeare to Rainbow Party, or for that matter preferring Rainbow Party to the essays of Jesse Helms. The very act of calling one kind of speech excellent and another kind mediocre is a content-based judgement. One simply can't wizard them away.

And people don't. What they object to is content-based judgements they disagree with. The ACLU had no problem with federal arts programs refusing art they considered to lack "artistic merit", even though such refusal is blatant censorship and "artist merit" is a content-based criterion -- and a higly subjective one -- if there ever was one. In short they had no problem with censorship as such, their objection was to censorship based on "decency". The issue wasn't whether a content-based decision was being made. The issue was whether the ACLU happened to agree with the content involved.
1.27.2009 1:54am
DangerMouse:
That the movement can't find a suitable point-person or provide that person with competent legal counsel helps to expose the movement as the expression of a collective martyr complex that it is.

Martyr complex? You're describing Al Sharpton and Jesse Jackson's career. They'd LOVE to be martyrs. This is just a conservative trying to beat them at their own game. I see nothing wrong with that. She's a victim of lib discrimination, she sues them. Classic 20th century victimology theory at work. What, conservatives can't play by those rules? Says who?

In general, I favor breaking academia just as much as I favor breaking the judges. All of that hubris should be smashed. Sue away. And then when the judges rule against you, petition to bulldoze their house like they did with Souter. If the grievance industry has proven anything, yelling and raising your voices (and other things) are probably more effective than some stupid lawsuit.
1.27.2009 2:19am
LN (mail):
Some people just like to watch the world burn.
1.27.2009 2:23am
Simon P:
DangerMouse: I don't believe that Wagner was the victim of "lib discrimination." Absolutely nothing in the complaint suggests that she was; that was, substantially, my point. That some people tend to read things like "[s]everal voting faculty members . . . oppose conservative views" as evidence that the faculty actually discriminated on the basis of political viewpoint suggests that they are subject to the sort of "martyr complex" I discount.

Try to imagine what you'd think if Wagner were black and cited the fact that the voting faculty was majority white as evidence that Wagner was not hired on the basis of race. You'd reject the accusation as preposterous and without basis, would you not? What stops you from doing so here?
1.27.2009 2:50am
Bill Dyer (mail) (www):
Prof. Somin wrote,

There are many bad policies that still aren't unconstitutional.


I'm sure there are some, but I can't recall ever running across a left-of-center pundit who voiced this indisputable, relevant, and incredibly important notion. I'm inclined to think that it should be a requirement that all wanna-be lawyers have this tattooed on their forearms upon submitting an application to law school. (Except, well -- that probably would be unconstitutional.)
1.27.2009 7:34am
paul lukasiak (mail):
Absent information suggesting that Matt Williamson was completely unqualified -- that there was no rational basis for his hiring -- I don't see that this woman has a case at all. And other than saying that Williamson had no experience teaching writing, she makes no mention of his qualifications. (He may have had an outstanding resume otherwise, for instance -- graduating from Harvard Law, clerking for a supreme court justice, etc -- or provided outstanding samples of his own legal writing.)

This lawsuit is frivolous, and by filing it Wagner suggests that she's not really "conservative" (what kind of conservative files for emotional damages?) in terms of legal scholarship, but a far-right wing activist who advocates bizarro world legal theories to support her politcal views.

I agree with those who suspect that her motivation in filing this suit is based on another agenda -- she's practically guaranteed a job now at a right-wing think tank, and one that pays far better than the writing job.
1.27.2009 7:45am
Happyshooter:
Years ago I was a student and applied for the clinic at Michigan Law. I told the director I was interested because I was a former Army MP and wanted to get involved in criminal law.

She rejected me because of that. I filed a complaint with the university and civil rights for rejecting me based on my veterans status.

Both the feds and the university ombuds rejected my complaint, because she wasn't rejecting me based on the veterans status but rather on the ideological basis that being a vet gave me.

"Ideological basis" is just another phrase for 'hell yeah, we are rejecting you because we got all the power, what are you gonna do about it?'
1.27.2009 9:21am
t.fox1 (mail):
If this unconstitutional action is an inevitable result of public schools and universities then isnt it clear that we shouldnt have public education.
Even if you believe that the public should fund education it can be done through subsidizing private schools and universities in a non discriminatory manner (such as vouchers..) and we wouldnt have government funded ideological discrimination. More importantly we wouldnt have a situation where the gov't is molding the minds of our young and deciding what can be taught and can not be taught.
In many ways public education where govt agencies decide curriculum etc... are in contradiction to the ideals of the first amendment.
1.27.2009 10:11am
Herky:
In an informal survey of fellow UILAW alums, I have found some disappointment, some amusement, and no surprise. There are a few courageous conservatives in the student body, but most just don't have that much faith in the double blind grading system in place (in fact one professor just got fired and disbarred for trying to only be double blind in one eye). Hostility toward military recruiters, funding disparity for conferences and speakers based on ideology, and faculty hiring practices make the allegations in this action just more of the same.
1.27.2009 10:55am
CJColucci:
And what did the applicant pool look like? I doubt it was that skewed, but stranger things have happened.

An excellent thought, but probably a dry hole. Having done many academic discrimination cases, and seen a lot of applications, I'd be surprised if most of them contained anything that gave a clue about the applicants' politics -- at least if you have sense enough not to fall for the notion that graduates of fancy law schools [and, yes, that is considered a "qualification" in the profession, whether outsiders think it should or not] are presumptively lib'rul elitists. Probably some of them, like the plaintiff's, listed some organizational affiliations that would give someone the basis for a good guess about the applicant's politics, but probably not many. And probably too few to show a pattern in the decision to invite certain candidates for interviews. I'd be surprised if some obvious liberals were not invited. And if some obvious conservative was, the plaintiff is dead in the water.
1.27.2009 11:23am
DangerMouse:
Some people just like to watch the world burn.

Not the world. Just David Souter's house.
1.27.2009 11:30am
Pashley (mail):
At the end of this thread, some points. I can't see the 1st Amendment being the source of affirmative rights for public employment. If successful, this would be the foundation for numerous Bill Ayers-types claiming their previous publically declared desire to kill random people is 1st Amendment protected and should not be accounted for in asking for whatever government benefit is just out of reach. Terrible idea.

Second, I can't see suing to gain acces to an reverse an institutions ideological bent. Again, the mayhem the reverse situation is easy to imagine. Conservatives by their actions are offering to extend the power of the most radical branch of our government. tsk tsk

I think the only solution is the conservative one; that monocultural and dogmatic institutions are unattractive and less successful in their field, should then attract less qualified professors and students, and really allowed to crawl up their own ass if that is there bent. There are institutions without number that are much less successful and prestigous because of their ideological bent, not the least of which is the ABA.
1.27.2009 11:30am
grasmere10 (mail):
Despite some excellent reasoning in these comments, you all miss the true reason why this is a bogus lawsuit. It is bogus because the plaintiff is not in fact a conservative at all. By seeking to remedy a private decision in the courts, Ms. Wagner demonstrates conclusively that she is a crypto-liberal. Perhaps by doing so she is trying to signal to the law school that they have made an error - and who knows, perhaps they will remedy their mistake and hire her to teach class-action litigation.
1.27.2009 11:50am
David Warner:
A.S.,

"Where the hiring was 63 conservatives, 2 liberals, and 34 with no identifiable ideology - that's outright proof of completely illegal ideological hiring. Nothing else is needed - throw the person doing that illegal hiring in jail!"

The Sleazeman proof was the smoking gun e-mails. If you're committed to the lawsuit approach, finding these on the part of hiring committees would be the way to go. A more fruitful approach might be appealing to the majority of faculty who care more about their careers than ideology. Just because the ideology-driven only swing one way it does not therefore follow that they are dominant.
1.27.2009 12:11pm
Roscoe B. Means (mail):
Does anyone remember Rutan v. Republican Party, 497 U.S. 62 (1990)? One sentence from the majority opinion pretty much summarizes the holding:

Under our sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so. See Elrod, 427 U.S. at 427 U. S. 362-363 (plurality opinion), and 427 U. S. 375 (Stewart, J., concurring in judgment); Branti, 445 U.S. at 445 U. S. 515-516,; see also Sherbert v. Verner, 374 U. S. 398 (1963) (unemployment benefits); Speiser v. Randall, supra, (tax exemption).

I venture no opinion whether the facts will eventually bear out the accusation, but I don't see any clear reason why a complaint of this type would not survive a 12(b)(6) motion. A professorship in writing hardly seems like the kind of high-level, policy-making position that would be "Rutan-exempt." See Hutchinson v. Blagojevich, 2006 WL 1519473, *4+ (N.D.Ill. Jun 01, 2006)
1.27.2009 12:20pm
KinnickDrunkard:
Given Iowa's lead balloon-esque drop in the US News rankings that its current liberal administration has orchestrated, is it really surprising that graduates of the University of Iowa College of Law are not able to attain decent faculty positions?

I don't believe the faculty would stifle the free expression of ideas by discriminating against conservatives in hiring. In fact, during my employment law class at the U of I, the professor stood up for Ward Churchill's America-loathing liberal ideas that brought negative publicity to Colorado University and made it clear that the university environment had to be even more careful in First Amendment protections than other government jobs. I believe that the faculty would adhere to this idea when hiring.

The plaintiff in this case wasn't discriminated against for her ideas, she got a full interview and a fair shake. She was likely discriminated against because no one wants to hire graduates of low ranked law schools for a career in academia, it pulls the institution's prestige down and further harms the rankings. Fear not, Ms. Wagner, the Apollo Project will get the College of Law back on track and you will soon be a hot commodity on the market when Iowa surpasses Cooley in the rankings.

rel="nofollow" href="http://www.cooley.edu/rankings/overall2008.htm">
1.27.2009 12:25pm
Mr L (mail):
I am so glad that Republicans are now supporting affirmative action.

This is 'antidiscrimination', not affirmative action. Republicans have always been against the former.
1.27.2009 12:26pm
trad and anon:
Having done many academic discrimination cases, and seen a lot of applications, I'd be surprised if most of them contained anything that gave a clue about the applicants' politics
Is this really that hard? Undergrad degree in anything with the word "studies" in it? Probably liberal. Graduate degree in sociology? Probably liberal. Federalist society? Probably conservative. Clerked for Reinhardt? Probably liberal. Worked for the military or DoD? Probably conservative.

But granted, if they're the kind of applicant who majored in political science at Princeton, don't disclose any law school organizational memberships, clerked for Kennedy, and did M&A in biglaw, that tells you nothing about their politics.
1.27.2009 12:31pm
CJColucci:
trad and anon:

Exactly the sort of thing I was expecting. But thanks for playing.
1.27.2009 12:45pm
David M. Nieporent (www):
Roscoe Means is correct about Rutan, although I always agreed with Scalia's dissent in that case.
1.27.2009 12:56pm
R Gould-Saltman (mail):
Dangermouse? Let me intgroduce you to Sarcastro; you seem to be gunning for his job....
1.27.2009 1:06pm
Bruce Hayden (mail) (www):
Even if the suit is not meritorious, it still bothers me that state money can be extracted from the pockets of its taxpayers and essentially used to fund one viewpoint.

On the other hand, I don't know the way out of this for those on the right, since conservatism preaches non-discrimination, as contrasted with reverse discrimination and affirmative action.
1.27.2009 1:28pm
man from mars:
Means observes that in Rutan v. Republican Party the majority wrote:

Under our sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.


The rule of Rutan does not apply here, because in Rutan, the persons suffering discrimination were Democrats; in the instant matter, by contrast, the person alleging discrimination is a conservative Republican. See, e.g., 443 U.S. 193.

Clearly a law school has a vital interest in not allowing conservative Republicans to teach legal writing, and I therefore expect this case to be dismissed for failure to state a claim on that basis.

Moreover, the fact that no Republicans have been hired in 20 years in this case is incontrovertible evidence for the inability of Republicans to be good law teachers. Thus, even if a 12(b)(6) motion fails, the verdict will be for defendants on summary judgment.
1.27.2009 1:44pm
Thomas_Holsinger:
The possibility of incriminating emails and other documents should not be underestimated in this case. I've seen that over and over in litigation.

My favorite example is an email from a hospital human resources director that Doctor So&So (the principal individual defendant in the gender hasassment action in which the hospital was a defendant) had just started in on the HR director's own secretary too, and that they had to do something about him or they wouldn't be able keep any decent help.
1.27.2009 1:47pm
rrr (mail):
"Good riddance, I say."

Yes. The sooner all the world thinks and acts like Simon, the sooner he can gaze into the mirror of his own beauty and revel in his omniscience. Won't that be a wonderful place!
1.27.2009 2:47pm
ed (mail) (www):
Hmmmm.

Isn't conservatism, as a belief, qualify as a -creed-?

Am I missing something here?
1.27.2009 3:38pm
Kev (mail) (www):
Elected officials don't own the government, it belongs to the people.


Someone was talking about tattooing things on people's forearms upthread; this shoud be tattooed on the forearms (or foreheads--backwards, so they can read it in the mirror every morning) of anyone who is elected to public office.

Well, I tried to mail my resume for Treasury Secretary to the Obama administration and never heard back from them. If I don't hear by next week, maybe I'll give them a call.


Did you pay your taxes the past several years? You're probably overqualified for the job as it currently stands...
1.27.2009 6:22pm
RPT (mail):
"Bruce Hayden:

On the other hand, I don't know the way out of this for those on the right, since conservatism preaches non-discrimination, as contrasted with reverse discrimination and affirmative action."

And conservatives never lose on the merits.
1.27.2009 9:50pm
David Warner:
RPT,

"And conservatives never lose on the merits."

Never and always seem equally unlikely, yet oddly enough in academia the latter is not infrequently the case, though not so much in other walks of life. Why might that be?
1.28.2009 10:56am
Dreadnaught (www):
She will have about as much luck as I did complaining that my 1L Torts grade was lower because of my views. No luck.
1.28.2009 10:58am
Iowa Law Grad (mail):
While I haven't spent the time to think about whether Ms. Wagner has a viable cause of action (my instinct is that she probably doesn't), I think the real purpose of this suit and others that will likely follow if it survives summary judgment is to get into discovery. By doing so, they will potentially (perhaps likely) uncover an overwhelming factual setting that has the potential to undermine the rationale supporting Grutter v. Bollinger (the Michigan Law School race conscious admissions case).

In Grutter, Justice O'Connor, delivering the opinion of the court, premised her finding the the race conscious admissions policy was constitutional because it was narrowly tailored to accomplish a "compelling state interest". O'Connor, like Justice Powell in the Bakke case 25 years early believed that the only interest that could survive strict scrutiny was the interest in attaining a diverse student body would provide a learning environment that trained future leaders of our nation through "wide exposure to the ideas and mores of students as diverse as this Nation." In other words, the compelling interest was not about race equality at all, it was only about First Amendment, Freedom of Speech kinds of diversity in the classroom. At least that's how I read the opinon.

Further, the court essentially deferred to the Law School's educational judgment that diversity is essential to its educational mission because the court presumed the University's "good faith" in making this judgment, "absent 'a showing to the contrary.'"

If the facts discovered in the Wagner case are clearly contrary to the university's position regarding the importance of diversity in the classroom (the First Amendment, Freedom of Speech kind), the court may no longer take that proposition as a good faith position from the experts on higher education.

If the court rejects the basis of the only state interest that can survive strict scrutiny in assessing a race conscious admissions policy under the 14th Amendment, such policies would necessarily have to be deemed to be unconstitutional.

It seems to me that that the best course of action to avoid such a future problem is for universities to implement "political viewpoint conscious hiring policies" that seek to provide a diverse faculty.
1.28.2009 5:39pm

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