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January 11, 2012

Those Pesky Conservatives Just Aren't Bright Enough

The law school at the University of Iowa, like so many departments at so many institutions of higher learning, has a faculty that is politically pretty much of one mind, with (as of 2007) 46 registered Democrats and only one registered Republican. When instructor Teresa Wagner applied for a professor's post in her specialty, legal writing, she was warned more than once that her incongruous political background - she is an outspoken conservative and active in the right-to-life movement - would be likely to hurt her chances. An associate dean, Jonathan Carlson, wrote to Dean Carolyn Jones in 2007: "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 it is, but I'm worried that I'm missing something."

Sure enough, the university turned Wagner down: although it had two spots to fill, it chose to fill only one of those, with a liberal candidate whose claim to credentials superior to hers was at best uncertain. Wagner proceeded to sue the school's dean, and last month a federal appeals court, in a decision that is causing a stir in both the legal and academic communities, ruled that her suit could proceed. It cited well-established constitutional precedent from the U.S. Supreme Court that state governments like Iowa's may not permissibly discriminate against job candidates based on those candidates' political beliefs (with some exceptions not relevant to the Iowa case, notably for "policy-making" positions).  And it found that she had proffered enough evidence of such discrimination that it was premature to dismiss her case.

The lopsided ideological imbalance seen at Iowa is nothing unusual at prominent law schools. The New York Times's Adam Liptak, covering the Wagner case this week, cites a 2005 Georgetown Law Journal study which found that 94 percent of faculty at Stanford Law who gave to political candidates gave predominantly to Democrats, 92 percent at Yale and 91 percent at Harvard.  In my book Schools for Misrule last year, I made the case that this imbalance hurts the law schools in a number of ways. For example, it tends to estrange many schools from fuller engagement with real-world practice areas that will be important to many students, such as military law.  It also means that one great wing of American political life increasingly tends to discount the schools' counsel as irrelevant.

I agree that there is a particular logic in asking state-run universities to be open to a plurality of legitimate viewpoints. Even so -- for reasons I pursued in more detail in an earlier book about employment law, The Excuse Factory -- I have severe doubts that lawsuits by disappointed job applicants are really a good way to improve fairness in the workplace and counteract arbitrariness in hiring decisions. Such lawsuits seem equally likely to provide a legal weapon to contentious applicants whether or not their talents are clearly superior, invite outside arbiters to apply subjective standards of their own, and take a great toll in collegiality, time, expense and emotional wear and tear, all while encouraging defensive employment practices that help no one. Conservatives in particular should remember that the ideological shoe will sometimes be on a different foot; it is by no means unheard-of for professors on the far left to cry bias (and file complaints) when their bids for tenure fall short.

So there is a lot to be said for according discretion and autonomy to the university, even the tax-supported public university. The irony is that law faculties at places like Iowa have been among the most implacable advocates of expanded litigation over employment decisions throughout the rest of society. Year after year, dismissing concerns about expense and acrimony as mere special pleading by employers, they have backed the extension of discrimination law to more groups, for higher damages, over a wider variety of complaints; some even favor the adoption of European-style rules that would allow legal resort over any adverse employment action taken by and employer without "just cause." Having tailored this straitjacket for everyone else's workplaces, they can hardly complain when they are asked to try it on themselves - can they?

Some of the reader comments appended to the New York Times article, incidentally, will tend to confirm conservatives' worst impressions of the smugness and malice of their adversaries. Jane Smiley of California - whether or not the well-known novelist is not clear - writes of Ms. Wagner's experience, "Maybe her political beliefs are a sign of lack of intelligence, and the fact that the faculties of all the best schools are Democrats is a sign of intelligence." Dave Scott of Ohio writes: "...as a political movement, contemporary American conservatism richly deserves to be shunned. .... And if Ms Wagner associates herself with people who have such beliefs, she has no more business teaching in a law school." He adds that "today's conservatism is so dangerous and repulsive that I can't say it bothers me if she was denied the job illegally." It may not bother him, but it probably does bother the lawyers who will now need to mount a high-stakes defense of the Iowa dean and her institution.

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Walter Olson is a senior fellow at the Cato Institute and author of ""Schools for Misrule and an Overlawyered America (Encounter, 2011).

Comments (5)

Stu:

So, if conservatives roll over, keep their mouths shut and take their medicine, then conservatives can count on liberals/progressives to atone for their behavior by ceasing to discriminate in these cases? That gives a new dimension and then some to wishful thinking. So, what action, if any, would you recommend in cases such as these? If all law schools take the Iowa approach, then I guess the solution is for Ms. Wagner to start her own law school. Or are we supposed to be too proud to fight? Wow. Just wow.

John David Galt:

I would like to see a general employment law prohibiting viewpoint-based discrimination in all jobs, unless it can be shown that the viewpoint is likely to actually interfere with the employee doing the job properly (such as a racist who wants to be my HR manager).

Even if one makes the purist-libertarian case that discrimination over politics should be OK in the private sector, it certainly shouldn't in a government job, including a state university.

But to my knowledge, no such protections exist in employment law today, unless the viewpoint at issue is a religious one. Am I wrong?

Steve In Tulsa:

Liberal facists censor what they are too stupid to debate. It angers them that many of the philosophical stances are so ridiculous it is impossible to defend them. So these facist leftists running our schools censor the opposition. They cannot win any debates with conservatives so they simply refuse to talk to them. Leftism is facism.

Peter:

This thinking; at if you are conservative there is something wrong with either, 1) the way you handle your job, 2) there is something wrong with your thinking or personally, or both, is not something just in colleges or universities. As a conservative teaching history in a high school, I have encountered it from day one. Liberals are very uncomfortable with the notion that someone around them perceives the world differently, thinks differently, and has credible facts and arguments to back them. Having been so cocooned in their education, especially in most colleges, particularly in schools of education, they are left without the skills or beliefs that they have to engage arguments with counter-arguments in a civil manner. The media and culture re-enforces this frail belief, leaving them timid and afraid. The herd only works well when every member of the herd works together. They are more comfortable running off the cliff together, than some members of the herd saying - Stop, we don't have to do this.

ruralcounsel:

How about a free market solution? All conservative law school alum donate only to law schools that are willing to follow and provide evidence that they are politically non-discriminatory. Quit giving to your own alma mater if they swing so far to the left. Pressure your state legislature to defund state law schools that practice political discrimination.

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