March 11th, 2013

Conservative professor: discriminated against, but no one to sue

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?

15 Responses to “Conservative professor: discriminated against, but no one to sue”

  1. southpaw Says:

    Those that can’t do, teach?
    I don’t know about law, but in my profession, it seems this way according to natural selection. Those engineers who tend toward academc careers are more inclined toward thought exercises, research and simulations in favor of practical, working products. That’s not to say those tools aren’t employed by all engineers; but there’s a definite group of people who want to build and create things, and another group who are more content to study them or in ending their interest with the theoretical possibilities than in the practical implementation.
    In my experience, more of the people who tend toward academic careers are not gifted with or just don’t like practical problem solving, but they excel at mathemetical approaches, which are heavily favored by academic institutions. Those that go to the private sector are usually more interested in hands-on development and implementation of ideas and theories.
    This is mostly a generalization on my part, so take it for what it’s worth.

  2. Don Carlos Says:

    Generalizations based on adequate sample size are valid conclusions.

  3. physicsguy Says:

    So, southpaw, does your generalization apply to people such as myself?? I guess my 30 years teaching undergrads how to do science, learn the basic of physics, and help them prepare for careers in science, medicine, banking, is all due to my own shortcomings in not being able to actually accomplish anything of value. Also, since I am an experimental physicist, I guess that also means, in your view, that I have no ability to solve practical problems such as how to manage kilo volt feeds, vacuum chambers with pressures down to 10^-8 torr, high pressure flammable gas handling, plus just designing and implementing completely new apparatus to fit the experimental situation. All of which I do on a daily basis.

    I am happy to know that explains my career choice into that area for those unable to “do”.

    More on topic: as a conservative in an academic institution, none of this is a surprise. Many studies have been done on the issue of hiring in academia. The data is overwhelmingly pointing towards discrimination, but those in power refuse to admit such. And the argument that why would anyone want to be hired and then “despised” in such an environment, has some merit. Just look at what happens when someone strays from the academic PC line:

  4. artfldgr Says:

    So at the end, the excuse they wont accept for women’s unequal representation, is the excuse we have to accept for lack of republicans in law…

    Tactics of conceptual distraction are a fixture of socialist methodology — indeed, of political propaganda in general. In particular, until they realize totalitarian government, radical socialists maintain the façade of champions of the rights and interests of minorities, the poor, and the pitiful, while plotting their demise once they have seized total control. (E.g., the Bolsheviks crushed labor unions after seizing power; Marx said peasants should be promised land of their own to gain their support for socialism, but once socialism was institutionalized, private land was to be completely abolished which, of course, it usually was.)

    as i said…

    but think this way.

    if you were the leader and you wanted a polity for after the change, and you had to exist in a world of unfriendly others… would you really want your population to be made up of neer do wells, and lazy, and low IQ?

    then, ultimately, what will happen to those people once they are no longer needed to crack the nut of the others?

    same thing that always happens with scaffolding…
    you take it down

    the LEADERS remain, but the armies are destroyed for the purpose of removing the tools that made things happen so that they do not reverse what happens once they realize what they have done.

    the experience of the Latvian Rifles stands apart, both for the complexity of
    their motivation, and the significance of their contribution to the success—and indeed, very
    survival—of the Bolshevik Revolution. Yet to date there exists no substantive history of these
    famous regiments in English, and precious few in any other. As far as this researcher has been
    able to determine, there are in fact only three monograph length treatments of the subject: one
    each in German, Russian, and Latvian. No doubt a major obstacle to research is the scarcity of
    scholars who have the requisite language skills, the necessary historical background, and the
    interest to go through the primary and secondary sources that do exist.

    Among the revolutionary socialist community, the Latvian comrades were always more
    associated with action than theory, as they soon demonstrated in the course of the Revolution of
    1905 and the events which followed

    The Rifles, or Strelniki, as they were called,
    soon earned a justified reputation for tenacity in combat. The first Latvian units were composed
    entirely of volunteers.

    the Battle of the “Island of Death”
    Battle of Machine Gun Hill

    the Christmas offensive was so hard, that they referred to it as the “Blizzard of Souls.”

    After the fall of the Romanovs and the emergence of the “Dyarchy” of the Provisional Government and the Petrograd Soviet, the Bolsheviks, who had largely been taken by surprise by the spontaneous February Revolution, now sought to expand their influence at the front, while consolidating their organization and gains in Petrograd

    Small organizations of factory workers and soldiers began on their own to form local militias, calling themselves “Red Guards.”23 A priority for Lenin became the control of as many Red Guards units as possible

    Prominent among this new force were the Latvian Red Guards. These units were mainly made up of deserters from Latvian Rifles regiments and Latvian factory workers, many of whom were from the Vyborg District

    [this is why us Latvians have a distinction between the various corps that try to share a good name, and erase their bad histories]

    Eventually, by the time of the October Revolution, whole Latvian Rifles units, including entire regiments, were reconstituted as Red Guards by the simple
    expedient of changing the names of their units

    Latvian troops had a fearsome reputation at the
    front—even something of a mystique—and as noted above, the Latvian Bolsheviks in Vyborg
    were known for their militancy.

    this mystique has followed them in history… from guarding the Turks, to guarding the trials and Nuremberg… most are over 6 feet tall… if it was my dad and me, you would see a 6 foot 6 man of 280 proportioned lbs, and another 6 foot 3 and 230..

    the average at that time was under 5 foot 9, 170…

    It therefore seems logical that Lenin would look to these men as the potential military vanguard of a Bolshevik revolution. Indeed, the importance of the Latvian militia, and later the Latvian Red Guards, as a reliable Bolshevik armed force grew rapidly after

    he Iskolastrel, all overwhelmingly endorsed a
    program calling for the liberation of Latvia through victory over Germany, much to the disgust
    of Lenin’s internationalists

    as the latvians were not socialists…
    so they sided with who could empower them to gain their own freedom. in the first world war, it was siding with russia against germany.

    in the second world war, it was siding with germany to eject Stalin russians…

    this is why they have the special dispensation due to their history… [of being part of the SS but not part of anything having to do with the ideology. they had stalin, they had hitler, and they did not want stalin back]

    By May, however, the pro-Leninist Latvian SD managed to seize control of the Iskolastrel. 25 They won over many Strelniki with Lenin’s promise that a socialist Russia would support a free and independent Latvia
    the Latvians understood quite rightly that there was no possibility of nationalist accommodation with the
    Germans. That left only the Bolsheviks

    promise them anything, even if not possible
    just so long as you get out of them what you want
    then you can always get rid of them afterwards
    (to secure your gain)

    A Latvian Red
    Guards unit, destined to play an important role in subsequent events, was assigned to protect the
    building. It was created earlier that month, probably by amalgamating several other ad hoc Latvian
    Red Guards units. Sometime referred to “the Smolney Guards,” it was later re-named the 1st
    Latvian Communist Detachment. It subsequently became the bodyguard for Lenin and the
    Bolshevik leadership, and saw extensive service during the Civil War, when some called it Lenin’s
    Praetorian Guard.

    [which is as they served historically. huge guards]

    When the Germans renewed their advance on Riga in the summer, Russian resistance collapsed—except for the Strelniki, who were now fighting for their homeland. In an irony that did not escape their notice, the Latvians fought and died to buy time for the rest of the Russian army to extricate itself—and plunder Riga and other Latvian towns and villages along their line of retreat.

    ie. they gave up their lives for their comrades and their country, only to have their commrades raide the towns, rape the women, and destroy that which they were saving… the old men died, the young radicals survbived, and now their fates were sealed later on.

    The Latvian Red Guards, many of whom as we have seen were former Strelniki, played a
    central role in the Bolshevik Coup in October 1917. One historian notes that they were
    “unbeatable at the crucial early moments of the birth of the Soviet Union. The force was small,
    but even a small force can prevail in a power vacuum.” During the coup itself, Latvian Rifles
    and Red Guards units were instrumental in securing strategic points within Petrograd, and isolating the city by occupying local rail junctions. The only significant military force near Petrograd potentially available to Kerensky was the 12th Army. Latvian Strelniki quickly achieved control over its soldiers’ organizations, and through a combination of propaganda and intimidation effectively managed to neutralize the entire army. 32 Thereafter, over the next few months, the Latvians provided much of the muscle for the Bolshevik’s consolidation of power

    and thus the soviet union and the later deaths of millions and millions was set

    In early December Lenin’s revolutionary government created the “All-Russian Extraordinary Commission for Combating Counter-Revolution and Sabotage,” the Vecheka (more commonly known as the Cheka). Its basic task was to destroy internal threats to the revolution. Among its original college of directors were several Latvians and Poles. For larger scale operations, it also had a force known as the Military Corps. By April 1918 several Latvian Riflemen were assigned specifically to this unit. Some of these troops came from Lenin’s
    Latvian bodyguards

    later there was assasinations and uprisings, and the boslhivicks were to lose… but the small corps of latvians stood up and defeated the nationalists

    Civil war broke out, and for most of the next two and half years the Bolsheviks were in a struggle for survival against a wide variety of forces, including the Whites Guards, Allied expeditionary troops, Cossacks, and even a stranded corps of Czechs.

    Throughout much of this period, the Latvian Strelniki, now re-named the Red Latvian Rifles, continued to remain the only truly reliable troops available to the Bolsheviks, and eventually became the original nucleus of Trotsky’s RKKA, the Workers and Peasants Red Army. They were deployed wherever Soviet power was challenged, eventually further and further away from their beloved Baltic homeland.

    with that stage set…
    you would think that they would have standing like george washington in the US or manby others.
    i will skip over a whole lot of history, and get you to the end game’

    Few details of the short-lived Latvian Bolshevik regime appear in the literature; it has been all but ignored by Western writers, and Latvian ones, who focus instead on the White and Latvian Nationalist
    efforts to defeat the Bolsheviks. The Soviet literature likewise only discusses the destruction of
    the Red regime in the context of imperialist counterrevolution. Consequently, we can only
    speculate about the form the Red Terror took in Latvia, or the role, if any, played in it by the Red

    the old guard gone, the young deserted when the first shots rang out in their homeland they were to fight agianst.

    In fact, one source puts the total number of Latvians “recruited” by the Red Army in Latvia at 110,000, of which 100,000 deserted

    When the 6th Red Latvian Rifles regiment was
    ordered to make an attack in early July, it refused, and instead demanded repatriation to Latvia.
    Desertions skyrocketed.

    With the establishment of an independent Latvian state in spite of Bolshevik efforts, not because of them, most Latvians had little reason to continue in Red service. The desertions speak for themselves. They also suggest, once again, the true motivation of Latvian troops.

    Many Latvians continued to serve in high positions in the Soviet government, including military command, the diplomatic service, secret police, and military intelligence. As Stalin consolidated his power, however, more and more “foreigners” were purged, including many Poles, Finns, Jews, and Latvians. The fate of Jukums Vacietis, the first C-in-C of the Workers’ and Peasants’ Red Army, serves, like the experience of the Latvian Rifles, as something of a metaphor for what happened to thousands of foreign “specialists” under Stalin. Rejected by his homeland for his pro-Bolshevik service, he remained in the Red Army, eventually becoming a lecturer at the Voroshilov Military Academy. He was arrested in the middle of a lecture during Stalin’s purge of the Army, and shot without ceremony in 1938

    and so… those who made the soviet revolution and secured their own freedom (temporarily till the molotov pact, and then later lost at yalta)…

    were sumarrily destroyed over a short time
    for what they made, they could unmake
    as the fear goes.

  5. southpaw Says:

    Physics guy:
    No sir, as with all generalizations, it’s as narrow or broad as the experience. And I expected it would open a can of works. It’s just an observation hiring and working with engineers for 25 years. Not everyone can be a theoretical physicist.
    We owe our educations in the field to our professors and instructors, and a lot of long hours with books; my point was that people generally gravitate to what we are good at or like the most. MY experience, such as it is, is that some people are better suited to and/or enjoy working in a more practical environment and practical problems – that tends to be the private sector — R&D is usually a small portion of a company’s budget and there are less opportunities to land an R&D job or one that exercises in great depth the things they did in school. In the private sector where I’ve always been, there engineers who excel at both theoretical and practical problem solving; but they are not the rule but the exception. Maybe it’s simply because they are focused on one or the other, but usually two types rely on each other to do their thing.
    I don’t believe that all professors are one dimensional or less incapable of practical solutions – that’s not what I was saying. Just like I don’t believe that everybody in the private sector is a practical genius. Just that we tend to go where our interests and abilities take us.
    I did not intend to belittle academia or imply they are incapable. I know a lot of engineers (me included) who would not enjoy teaching or be good at it. I’m very good at some things; I don’t even know why. There are other things I don’t care to do because it’s not interesting or I am just too dumb to figure out.
    As for politics if any of my engineering professors were liberal or conservative, I never got a hint. There was never anything but the work in front of us, and that was more than enough to think about.

  6. JJ formerly Jimmy J. Says:

    Conservative professors have to work in a climate of hate, and are discriminated against for hiring and promotions. Hmmmm. Does this sound like the Jim Crow south? Is this Politicism? The hatred of someone because of their politics.

    How about an affirmative action program for conservatives? Say a quota system for academic faculties? How about each university has to have at least 35% conservative faculty? (Assuming about 35% of the population is conservative.)

    Wouldn’t it be sweet if the progs could understand the ridiculousness of their positions ala affirmative action and the level of their own intolerance?

  7. parker Says:

    UI law salaries:

    Nationwide salaries:

    UI professors receive nice salaries. When you consider benefits, retirement, and a low class load for full professors I think UI law professors have a cushy life style. What they don’t have is tolerance for a diversity of opinion.

  8. NJcon Says:

    Anyone looking to hire a graduate from University of Iowa Law School should consider other graduates…just sayin’

  9. holmes Says:

    I had maybe two conservative professors in law school. They never pushed their ideology and encouraged open thought. The rest were liberal and with the exception of one, tended to push their political leanings onto the class. There was at least one professor I had who for certain graded my work more stringently because I was a conservative (I didn’t care as I was in my third year at the time).

    Teaching at a law school has been a really good gig- likely better than being a lawyer. You get paid fairly well and no billable hours just for leading a lecture. The emphasis on original research in law school does not seem to be the same as in other areas of Academia.

  10. George W. Says:

    On March 8 Neo mentioned Mark Moyar and Vietnam War history. Take a look at
    where Mark tells about his application “to the University of Iowa history department for a professorship in United States and world affairs.”
    The article is titled “27-0 at the University of Iowa”; that is not a football score.

  11. thomass Says:

    “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”

    Two things come to mind. Normally you have no first amendment rights at work. Colleges that take federal money, due to a law, are required to respect the constitutional rights of students as if part of government. The issue; I don’t know if that law extends to employees.

    Issue two; isnt discrimination based on creed illegal? Yes; but there are hardly any examples of anyone going to court to push it. I think some is due to selection bias. Conservatives are usually discriminated against when it comes to opinions and they don’t believe in discrimination law / are opposed to the idea of it.. so they usually opt out of pursing it. While on the other side employment lawyers tend to be leftists who don’t want to defend conservatives who have been discriminated against for opinions so they opt out of these cases when they come up. .

    So; at this point discriminating against someone due to creed is illegal.. but there is no enforcement.

  12. thomass Says:

    So; at this point discriminating against someone due to creed is illegal.. but there is no enforcement.

    I didn’t really wrap up my point. No enforcement in large part because there are not any precedents that the courts accept that discrimination based on creed means anything… People are not jumping up to be first to really litigate it…

  13. SGT Caz Says:

    Jonathan Haidt has been talking about this for the past year.

    But no one will own up to the basic intuition: the entire concept of discrimination as an evil is deeply flawed at the core, and trying to base law around it in an individualist society can’t possibly work. Explicit bias can always be replaced by more subtle forms. Or in this case, by shuffling the technicalities.

  14. holmes Says:

    I would say “There oughta be a law” but I think maybe not. Too many of those and I think it could just as easily be used to attack any conservative group who accepts any sort of federal grants.

  15. holmes Says:

    For what it’s worth, South Carolina has a law that prohibits discrimination in employment based on political affiliation. That is also the case in the federal employment arena as well.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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