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SHORT TAKES


November 26, 2012

Preferred and Prohibited Discrimination

Is the Fourteenth Amendment inferior to the First? If states are generally prohibited from discriminating on the basis of political identity, why should they be allowed to discriminate on the basis of racial identity?

Consider Teresa Wagner's much-discussed lawsuit against the University of Iowa College of Law for not hiring her due to her political convictions. A federal grand jury believed the law school had indeed discriminated against her but ultimately deadlocked because "federal law does not recognize political discrimination by institutions."

More interesting than this perhaps provisional result is the Eight Circuit Court of Appeals' legal reasoning that made the trial possible. In its decision last December allowing the trial to go forward, The Court of Appeals relied on a 2006 Supreme Court decision holding that Title VII "seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status." In short, it seeks "to prevent injury to individuals based on who they are, i.e., their status." The Eighth Circuit also adopted the First Circuit's holding that, if a plaintiff presents sufficient evidence of discrimination, the employer was obligated to demonstrate a "nondiscriminatory basis" for the decision to not hire. Specifically, the employer must show that they did not consider the applicant's "political affiliation."                                                                 

This raises an obvious question. Why should courts allow discrimination against an applicant because of her racial identity but not because of her opinion about abortion? 

In an editorial about the Teresa Wagner case, the Des Moines Register argued that the University of Iowa "respects the goal of diversity for race, religion and gender, but it should show the same respect for diversity of political thought." Actually, it already does. It discriminates on the basis of political thought just as it discriminates on the basis of race and ethnicity. More discrimination -- seeking, say, a "critical mass" of conservatives -- would simply compound the discrimination, not cure it.

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