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SHORT TAKES


December 30, 2011

More Ideological Discrimination at the University of Iowa?

In the groupthink academy, perhaps the most opaque, but significant, personnel process comes in the hiring of new faculty. In a flawed tenure case (as I came to discover), some precedent exists for the courts (or, in my case, fair-minded senior administrators) intervening to undo an ethically improper outcome. In the typical hiring process, however, there's almost no chance of any type of outside intervention, since it's almost impossible to prove ideological, or political, or pedagogical discrimination. The result, of course, has been a tyranny of the majority in most humanities and many social science departments around the country.

A recent 8th Circuit decision, however, gives some hope that some sense of checks and balances might come to exist in the hiring process. The case involves a job search at the University of Iowa Law School, which received authorization to make two hires in Legal Analysis, Writing, and Research. The applicants included Teresa Wagner, who had taught courses in the topic for two years at George Mason. Wagner interviewed well at the preliminary stage, and was one of three people to receive a campus interview. Her campus interview also seemed to go well; several members of the law faculty e-mailed colleagues praising her performance. Since one of the other interviewees had a bad interview, Wagner seemed to be in good shape.

But Wagner didn't get an offer. Not only that--on four consecutive occasions, the Iowa Law faculty turned her down for an adjunct position. What happened?

Iowa Law Dean Carolyn Jones claimed that the school didn't offer a permanent position to Wagner because, in her campus interview, Wagner demonstrated an insufficient interest in teaching legal analysis, a requirement of the position. (The school offered no explanation as to why it chose to allow the second line to go unfilled rather than hiring Wagner.) Dean Jones said that she didn't offer Wagner an adjunct position because she always accepts the recommendation of the law faculty, which had overruled the recommendation of the adjunct hiring committee and urged not making Wagner an adjunct. Neither the dean nor the faculty as a whole indicated why a candidate who was, at worst, a runner-up for a full-time hire was deemed unacceptable to teach as an adjunct.

Wagner sued the law school, alleging political discrimination. In figures that recalled the Mark Moyar case and the University of Iowa History Department, Wagner revealed that the 50-person law faculty contained only one registered Republican. That profile was problematic for Wagner, a registered Republican who previously had worked with the National Right to Life Committee and the anti-gay/anti-abortion Family Research Council. An associate dean even cautioned her against mentioning, during her on-campus interview, that she had received a job offer from the (conservative) Ave Maria Law School.

Material obtained by Wagner through discovery revealed that her leading opponent was one of the law school's most outspoken liberals, who had clerked for Justice Blackmun during the term in which Roe v. Wade was decided, and who had championed Blackmun's jurisprudence in his own writings. Even more problematic, Iowa admitted that Wagner's political views had come up in the discussion over whether to hire her. (Disagreement exists over whether this mention occurred before or after the departmental vote to deny her a full-time position.) When he heard of the decision the then-associate dean wrote his superior, "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). I hate to think that is the case, and I don't actually think that, but I'm worried that I may be missing something."

A lower court ruled that despite these troubling signs, Wagner had no case, because the university offered a non-ideological justification (that she was insufficiently competent to teach the "analysis" section of the position) for not hiring her. The 8th Circuit overturned this decision, however, noting that "when the facts are viewed in their totality with all reasonable inferences being drawn in favor of Wagner [as must occur in a motion to dismiss stage], we believe that Wagner has presented sufficient evidence for a fact finder to infer that Dean Jones's repeated decisions not to hire Wagner were in part motivated by Wagner's constitutionally protected First Amendment rights of political belief and association."

Since a "dispute exists regarding a material issue of fact, namely whether Dean Jones would have made the same hiring decisions in the absence of Wagner's political affiliations and beliefs," the 8th Circuit remanded the case, further reminding the lower court that "a plaintiff need only prove that the employer's discriminatory motive played a part [emphasis in original] in the adverse employment action."

Political discrimination is awfully difficult to prove, but Wagner does seem to have quite a few factors in her favor--the extreme partisan imbalance among the Iowa law faculty, the admission that her political views were discussed in the meeting about whether to appoint her, and the curious, unexplained decision not to hire her as an adjunct. As the case returns to the district court, the lawsuit will be one to watch.

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