Update: Adam Liptak covers this case today in the New York Times and generously quotes me:
Walter Olson, a fellow at the Cato Institute, the libertarian group, and the author of “Schools for Misrule: Legal Academia and an Overlawyered America,” said there was nothing unusual about the number of Republicans on Iowa’s law faculty.
“What would count as freakish would be to find two dozen registered Republicans on a big law faculty,” Mr. Olson said. “Law schools are always setting up committees and task forces to promote diversity on their faculty, which can serve to conceal an absence of diversity in how people actually think.”…
Mr. Olson said he had mixed feelings about the Eighth Circuit’s decision, saying it may have identified an instance of a real problem while allowing it to be aired in the wrong forum.
“I have serious misgivings about asking the courts to fix this through lawsuits,” Mr. Olson said. “It threatens to intrude on collegiality, empower some with sharp elbows to sue their way into faculty jobs, invite judges into making subjective calls of their own which may reflect their assumptions and biases, all while costing a lot of money and grief.”
“At the same time,” he added, “there’s a karma factor here. Law faculties at Iowa and elsewhere have been enthusiastic advocates of wider liability for other employers that get sued. They’re not really going to ask for an exemption for themselves, are they?”
(& Althouse, Leef/Phi Beta Cons, Horwitz, Instapundit, State Bar of Michigan, Bainbridge, Elie Mystal/Above the Law, Kent Scheidegger/Crime and Consequences, Andrew Kloster/FIRE and earlier, Federalist Society blog, earlier)
“A woman who alleges she was denied a job at the University of Iowa College of Law because of her conservative politics can proceed with a discrimination lawsuit against the school’s former dean, a federal appeals court ruled [last month].” [WSJ Law Blog, Ryan Koopmans/On Brief: Iowa Appellate Blog, Risch/PrawfsBlawg, Ilya Somin/Volokh (arguing “that ideological discrimination in faculty hiring by state universities doesn’t violate the Constitution”)] The court found it significant that of approximately fifty professors who vote on faculty hiring matters at the school, per the lawsuit’s allegations, “46 of them are registered as Democrats and only one, hired 20 years ago, is a Republican.” (Who was the one?)
In Schools for Misrule last year, I made the case that prominent law schools suffer from an egregious ideological imbalance, to the point where their own declared mission suffers in a number of ways. Beyond that, I agree that there is a particular logic in asking government-run institutions, such as the University of Iowa, to be open to a plurality of legitimate viewpoints. Even so — as readers who remember an earlier book of mine, The Excuse Factory, will have guessed — I have severe doubts that lawsuits by disappointed job applicants will really do much 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. Still, this is not the view of law faculties at places like Iowa, which have tended to cheer on the expansion of employer liability year after year with great enthusiasm. So it may be rather hard for them to mount a convincing complaint when they are made to drink from the cup they have prepared for the rest of society.