A jury found that conservative professor Theresa Wagner was discriminated against by the University of Iowa Law School and denied a job promotion because of her politics, but she can’t collect because the Dean was found by the jury to not be responsible, and the university itself can’t be sued for political discrimination.
The article doesn’t say why there’s no cause of action against the university for political discrimination, and in a quick search I couldn’t find an explanation elsewhere, but I assume it’s because it’s not a specially-protected right such as race or gender, although I’m not sure why the First Amendment wouldn’t give her a cause of action against a state university. If anyone understands the legal reasoning here, please describe it in the comments section. All I can find about it so far is that “federal law does not recognize political discrimination by institutions.”
One part of the history of Wagner’s case that particularly interests me is the use of the word “despise” here:
“Frankly, one thing that worries me is that some people may be opposed to Teresa serving in any role, in part at least because they so despise her politics (and especially her activism about it),” Associate Dean Jonathan C. Carlson wrote in 2007 to the law school’s dean, Carolyn Jones.
Why not use the word “disagree” instead of the word “despise”? Well, we know why; the word “despise” is far more appropriate. I think, actually, it’s not strong enough—perhaps “hate and despise” or even “want to eliminate from the face of the earth” would fit better.
At any rate, it’s hard to believe this wouldn’t affect a hiring and/or promotion decision. As David Bernstein writes at Volokh, “color me skeptical”:
There is at least one way to clear the air. Surely, as part of its defense against the Teresa Wagner’s claim that she was discriminated against based on her conservative views, the law school’s lawyers prepared an exhibit showing all of the right-of-center faculty candidates to whom the law school had offered positions over, say, the decade before Ms. Wagner’s lawsuit commenced. After all, if a significant list of such candidates existed, that would be good circumstantial evidence that the law school didn’t discriminate on the basis of ideology, and thus didn’t discriminate against Ms. Wagner. The exhibit, in turn, would be public information, so if Prof. Hovenkamp or someone else at the law school would forward me this list, I’m sure my cycnicism will be easily overcome. Folks at UI should feel free to send that exhibit, or any other such list, to me at dbernste [at sign] gmu [dot] edu.
(And by the way, I’m pretty confident that there are a lot more law professors who “believe” that their faculties should make more of an effort to increase their ideological diversity than there are those who will actually recruit and vote for such candidates in practice).
UPDATE: I have a friend at a top law school who assured me that his colleagues would never discriminate based on ideology. In fact, he added, he was about to push a candidate with “right-wing” political views, and he was sure the faculty would be interested. A while later, I inquired as to how things went. The answer: “Remember how I said my colleagues wouldn’t discriminate based on ideology? I was wrong.”
To give you an idea of the lack of ideological diversity at the school, there’s this:
According to Ms. Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.
However, as the Times article points out:
It may be…that liberals are simply more likely than conservatives to seek positions at law schools. There are plenty of conservative lawyers at firms, in government service and on the bench.
Yes, it’s possible. But if so, why do you think that might be? Do you think they might realize they are unlikely to be hired and/or promoted, or that all their colleagues might “despise” them? And might that help them decide not to go there in the first place, particularly since teaching at a law school can involve earning a lower salary than they are likely to make in the public sector?