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Politically-based faculty discrimination, a test case

Today, the Eighth Circuit Court of Appeals heard oral argument in the case of Wagner v. Jones. Our friend Peter Berkowitz discussed the case in a Wall Street Journal op-ed (it’s behind a pay wall).

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.

Wagner was already the associate director of the law school’s writing center. Moreover, she had taught legal writing at George Mason University Law School, edited three books, practiced as a trial attorney in Iowa, and written several legal briefs, including one in a U.S. Supreme Court case. In addition, the faculty-appointments committee at the University of Iowa College of Law recommended her appointment as a full-time instructor.

By contrast, one of those selected for the position, a self-described “off the charts liberal,” had one semester of law-school teaching experience, no legal publications, and no experience practicing law. He quit the job within a year.

The second position was filled by a former research assistant originally hired straight out of law school. He had been the research assistant for a professor who clerked for Justice Blackmun at the time Blackmun wrote the decision in Roe v. Wade. This professor led the opposition to Wagner’s appointment.

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. (Since the suit was filed, the law school has hired four Republicans. But one of them is Jim Leach left-leaning windbag and former Obama appointee. In the unlikely event that “Chairman Jim” is involved in teaching law students to write, the student body should sue the law school). The inference of discrimination against Wagner is also bolstered by a memo written the day after her rejection by an associate dean of the law school.

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. As Peter concludes:

[S]tate boards of regents and state legislatures have a responsibility to ensure that their law-school faculties do not discriminate on the basis of political persuasion. . . .If the Eighth Circuit protects Teresa Wagner’s constitutional rights, the court will also bolster legal education in America by promoting its depoliticization.

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