Eighth Circuit: Applicant for lawprof position can sue school over bias against conservatives

by Walter Olson on January 9, 2012

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)

[Original post:]

“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.

{ 3 trackbacks }

Conservative Law Profs: Just Say You Need ‘Affirmative Action’ for Intellectual Diversity and We’ll End Hiring Discrimination Against You « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law
01.09.12 at 7:08 pm
Discrimination Against Conservatives? | Raised On Hoecakes
01.10.12 at 6:17 am
At “Minding the Campus” on Iowa case
01.12.12 at 3:30 pm

{ 25 comments }

1 Ron Miller 01.09.12 at 12:51 pm

Let’s replace “conservative” with “liberal” for a second. You would have 12 outraged comments.

People that want to teach law school are generally, but certainly not overwhelmingly, are going to be liberal. Talk radio, for example, is going to be predominantly conservative. It is just the way of things. There is not much that can be done about either.

2 MF 01.09.12 at 4:48 pm

Ron Miller, your example is completely invalid. Talk radio is predominantly conservative because that’s what sells. In other words, the market determines what’s aired. If people listened to liberal talk radio, you can be certain it would be on the air.

I don’t agree with your assertion that people who want to teach law school are generally going to be liberal. But even if a higher percentage are liberal, it can’t possibly be to the degree that is seen on law faculties across the country. Here, it’s not the market (the pool of interested law professors) who determines who is hired, but the university board / law school executives.

3 Patrick 01.09.12 at 5:40 pm

MF, typically law school faculty hiring is done by the Dean, advised by the faculty. To the extent the university board (of directors?) / law school executives (whatever that means) has any role, it’s to rubber-stamp the Dean’s choice.

Ron Miller, it was certainly true back in the stone ages when I attended law school that “people who want to teach law school” were overwhelmingly liberal, but the sample I used to judge that was the people who actually taught law school. It may be that law faculty apply their political biases on hiring committees, but they’re state actors working behind closed doors. You aren’t suggesting that talk radio listeners (overwhelmingly conservative, I’d agree) should be forced to listen to what passes for talk radio on NPR, but aren’t you ignoring the state angle?

I do believe that law school hiring committees are state actors is an important consideration here. Whether academic faculty should have an exemption from rules that apply to other government agencies (which can’t discriminate on the basis of political beliefs outside the level of executive appointees) will be determined by and by.

4 Bill Poser 01.09.12 at 6:17 pm

Granting that law school faculties are overwhelmingly liberal, and even that this is not due to intervening factors, I suspect that it will be difficult for the plaintiff to prevail since she will, presumably, need to show that she was better qualified than the successful candidate. Since many factors are involved in determining such qualifications, and there are intangibles such as evaluations of future research prospects and teaching ability, won’t that be an awfully hard row to hoe?

5 Smart Dude 01.10.12 at 12:47 am

There is a conspicuous absence of intellectual diversity in today’s leftist rigidly ruled PC campuses.

Bravo to the Eighth Circuit!

6 John Rohan 01.10.12 at 10:51 am

As someone with a strong libertarian streak, I generally think employers should be allowed to discriminate on any basis they wish (I’m not saying that’s morally right, I’m just saying that it should be legal).

HOWEVER, the case is very different for a public institution like the University of Iowa, which (I’m assuming) accepts state and/or federal tax dollars. Once you take money from the public purse, you must be prepared to be open to every qualified employee or student. Reading through the various articles, the woman here has a very strong case indeed, and I think this is proving to be embarassing to the faculty that voted against her. What’s sad is that this is only in the news because it’s such a strong case. 99% of other cases in which a person is rejected due to his/her political beliefs wouldn’t even get this hearing because the situation isn’t nearly as clear cut.

7 gitarcarver 01.10.12 at 10:56 am

Bill,

There were two jobs for which Wagner was passed over for after being told she would be good in both and in one, a faculty committee recommended her for the position.

For the first position, there were two possible positions open. Wagner had taught at another University for 2 years and worked as a lawyer. The college only hired one person for the two positions, a gentlemen named Williamson who, according to the opinion:

Student feedback from Wagner’s interview was also positive. The students gave Wagner the highest possible ratings and ranked her higher than Williamson.

Williamson was an adjunct LAWR instructor, had never practiced law, had no legal publications, and had no prior successful teaching experience. Williamson portrayed himself as a liberal to other employees at the Writing Center.

When Wagner applied for another, “lesser” position, she was told she was qualified and the faculty committee recommended her. Yet the job was given to someone who had no experience and was right out of law school which means he had not taught, practiced, etc.

I hate these “you should have hired me” type cases for a variety of reasons. I also hate discrimination on any basis. If you change the facts slightly and replace “conservative” with “woman” or “minority,” or any “class” of people, it is clear she was discriminated against.

The opinion can be found here if you are interested;

http://www.ca8.uscourts.gov/opndir/11/12/102588P.pdf

8 Anonymous Attorney 01.10.12 at 2:58 pm

Walter’s ambiguity sums my own feelings: generally a bad idea to litigate this, but, sauce for the goose…

I feel the same way I feel about racial reverse discrimination suits — though those are more concrete. I’m not sure “ideology” is a protected class, so I’m surprised this happened on appeal. Ideological “diversity” is almost as silly as other forms. A professor I know advises up-and-coming academics to totally hide any conservative leanings until they get tenure.

9 Ron Miller 01.10.12 at 3:23 pm

Sauce for the goose? I like that mindset. You know, people steal. If I can find a ski mask, I’m going to knock over a liquor store tonight.

It is very, very hard to come to hard conclusions about why someone got hired and someone didn’t.

In the real world, I think people don’t discriminate much on political persuasion when it comes to hiring. Or friends for that matter.

But my point was that there is a heavy supply of liberal law professors. That is going to have an impact on the final product. Similarly, using economic principles, there is high demand for conservative talk radio. Do radio stations have a conservative bias? No. They have a bias for making money. Both imbalances are natural occurring.

Some of the support for the notion that this lawsuit must be a good idea reminds me of this criticism of Mitt Romney. He takes advantage of deregulation and free markets and makes a fortune (as he is entitled to do). These same Republicans who worship at the alter at deregulation and free markets now say he went too far. Really? Similarly here, there is “these are all bogus lawsuits” until you have some vested interest in a different outcome.

GitarCarver, you point seems to be that there should not be a claim but, boy, it looks like a real injustice was done here. But the reason you think there should be no claim in the first place is that you know how hard it is to successfully Monday morning quarterback these things. I would apply your prevailing logic here.

10 John Rohan 01.10.12 at 5:40 pm

Ron Miller,

I don’t like these types of lawsuits either, but there is a flaw in your laissez-faire economic argument.

1. Universities aren’t really consumer driven, at least not to the level that private corporations are. So the students are being shortchanged if they aren’t allowed to hear alternate viewpoints. Yes, some can go elsewhere, but if you are an Iowan and depend on the lower cost of in-state tuition, then you can’t go elsewhere.

2. Most universities accept public funds (I’m assuming this one is no exception) so the places a responsibility on them to serve the public as a whole, not solely their own agendas. Otherwise, our tax money is directly funding political advocacy.

11 Ron Miller 01.11.12 at 10:06 am

John, you are confusing the issues. There are more liberal than conservative applicants to be law school professors. Accordingly, if the hiring process is remotely fair, there were be more liberal law professors than conservative law professors unless conservatives become a protected class that needs affirmative action.

No one is arguing that anyone should discriminate based on political viewpoints. And, as I said, while I’m sure it happens, I think it is relatively rare in the workplace. People are looking for someone who can do the job – not their politics. If they are inclined to look beyond projected performance, they are far more likely to discriminate based on race or physical appearance.

12 Richard Nieporent 01.11.12 at 12:34 pm

Ron, it would appear that you are trying to convince yourself more than the rest of us. In the workplace outside the university, one’s political party affiliation in not relevant. However, in the university, it is the sine qua non for the job. Even if 90+ percent of all applicants are to the left of the political spectrum, your statistical defense does not hold water. Ms. Wagner is not suing because there are not enough conservatives at the University of Iowa Law School. Rather she is claiming that her political affiliation was used to blackball her from getting the job. Assuming that there is evidence to prove her charge, then it is immaterial what the “normal percentage” of political affiliation is of applicants for a job at the University of Iowa Law School.

13 Ron Miller 01.11.12 at 4:13 pm

I’ve been a law professor for 14 years. I could not tell you the party affiliation of anyone on the facility. I’m not saying no one has this high on their list of priorities but Suggesting it is the sine qua non -fancy I like that – is ridiculous. I obviously don’t know the inside dope here – none of us do – but I seriously doubt this was why this person did not get the job.

But, Richard, that is really not my point. If her claim is correct, then it is a really bad thing. I’m talking more about the big picture “problem” that law professors are too liberal.

It is comical to me that the same people who refuse to see historical discrimination see it all too clearly when they feel like one of their own faces discrimination. It is a very human reaction but it lacks self awareness.

14 gitarcarver 01.11.12 at 4:56 pm

It is a very human reaction but it lacks self awareness.

Yet you are the one who seems to think the woman wasn’t discriminated against because of her beliefs. You are the one that thinks liberal faculty members are the “norm,” simply because more liberals apply for the positions.

(Also your statement that you are unaware of the party affiliation of anyone on the faculty somewhat flies in the face of your assertion that faculties are liberal.)

The sad thing is Ron that you appear to be using all of the standard excuses given by those who discriminate. Then you want to turn it around and say others are unaware of discrimination.

And in case you didn’t notice, the woman wasn’t turned down for one job, she was turned down for 3 positions, and then told not to apply again while the college hired less qualified candidates.

15 Richard Nieporent 01.11.12 at 4:58 pm

Ron, I am glad that I can amuse you. I would be interested to know how you have managed to be a law professor for 14 years and not know the political proclivities of the other faculty members. Do you never discuss current events or politics with them? I sincerely doubt that.

By the way, try to not take a cheap shot at other people. A would be happy to match my civil rights bona fides against yours. I was a supporter of the civil rights movement in this country before you were probably born. There was a time when liberals believed in equal rights for everyone. Now, unfortunately that is not the case. I still am against all forms of discrimination, are you?

16 Ron Miller 01.11.12 at 9:42 pm

Hold on. GitarCarver, you can’t be serious. This is the only discrimination case you have ever seem in your life that you thought was legit. I’ll repeat for the 1,000 time: if this happened as she alleged, it is a real bad thing. Ultimately, I doubt it happened but, again, keep in mind that NONE OF US have seen the evidence.

Richard, I’m really just bantering. I’m not taking a cheap shot at you or anyone. I’m speaking globally.

The idea that “liberals” are this monolithic group that once thought one way and now thinks another way is just silly, of course.

I’m against all forms of discrimination and I assume everyone is until they specifically state otherwise.

17 Bill Poser 01.11.12 at 10:34 pm

Gitacarver,

It does look like she has a prima facie case, given both her qualifications in comparison to those of the successful candidate and what seems to me to be an unusual amount of detail as to who said what in the course of the hiring process.

18 gitarcarver 01.12.12 at 12:39 am

Hold on. GitarCarver, you can’t be serious.

Of course I am serious Ron.

I’ll repeat for the 1,000 time: if this happened as she alleged, it is a real bad thing.

This is condescending Ron. You aren’t willing to say that a person who was discriminated against should be compensated or the agency which failed to hire a person because of discrimination should be held accountable.

A “bad thing” is when you spill your milk. A “real bad thing ” is spilling your milk on your tie.

Discrimination is far worse than that.

This is the only discrimination case you have ever seem in your life that you thought was legit.

I am sorry Ron, but that is one of the dumbest things things you have ever said and dumbest pieces of rhetoric I have ever seen. You don’t know me well enough to know my history with discrimination cases, hiring of people, and firing those who did discriminate.

Ultimately, I doubt it happened but, again, keep in mind that NONE OF US have seen the evidence.

May I suggest you read the opinion and then try to make that statement stick?

19 Ron Miller 01.12.12 at 9:11 am

Well, again it is the leap of faith… is there concrete evidence of discrimination? Hiring people with inferior resumes? Check this out:

“Professor Todd Pettys asked Wagner whether analysis or writing was more important to the LAWR position. Wagner responded that both were important to the job. When Professor Pettys later asked Wagner if she had to choose between writing or analysis as to which was more important, Wagner responded that the question was unfair because both were important, but if she had to choose, she would pick writing.
She further noted that all classes at the University teach legal analysis.”

She thinks the question is unfair? I would not hire her for that reason alone. Reading that opinion does not give both sides of the story. That is not the purpose of a summary judgment opinion.

Please keep in mind all these are the facts presumed to be true for summary judgment. These are not factual findings of the court.

Sure, it is rhethoric, GitarCarver as is your saying that it is one of the dumbest things I have ever said. I’ve said plenty dumber. Trust me.

If there was discrimination here that was actaully outcome determinative , it is the fact that she is pro-life. (Parenthetically, I’m pro-life.) If the facts were clear and unambiguous that they was discrimination for that specific purpose and you have a state actor, I think that is actionable. But she would have a tough hill to climb if I was on the jury.

20 gitarcarver 01.12.12 at 9:54 am

Hiring people with inferior resumes?

Yes Ron, the other people hired had inferior resumes.

Reading that opinion does not give both sides of the story.

Wow. Just wow.

But she would have a tough hill to climb if I was on the jury.

Of course. I bet you have friends that are conservative too.

21 Ron Miller 01.12.12 at 10:13 am

Reading that opinion does not give both sides of the story. This is not a statement of opinion that I’m offering to you. It is a fact that no one can disagree with. It is a motion for summary judgment. All facts are PRESUMED in a light most favorable to the non-moving party. When you “just wow” this obvious fact, you lose credibility.

22 Richard Nieporent 01.12.12 at 10:58 am

Ron,

How many times are you going to beat the same dead horse? I (and many others) have stipulated that if her charges are true then she has a good case. I readily acknowledge that I am giving an opinion about a hypothetical case. I never presume that what is stated in a lawsuit or the newspaper account of it is true.

Also, since you are always doing this to everyone else, I will give you some gratuitous advice. You will get a much friendly response from others if you would refrain from treating everyone else as being less intelligent than you.

23 Ron Miller 01.12.12 at 2:19 pm

I am responding to comments. That’s the game here, Richard. Sorry if this offends you. But, honestly, before you lecture to me, follow the conversation a little more closely. People have tried to get ME to say she has a case. Not the other way around.

These are comments to a blog. Let’s not take ourselves too seriously.

I’m glad you would not be condescending, Richard. No, wait, your first words in your first comment on this were:

“Ron, it would appear that you are trying to convince yourself more than the rest of us.”

24 gitarcarver 01.13.12 at 11:40 am

Reading that opinion does not give both sides of the story.

All facts are PRESUMED in a light most favorable to the non-moving party.

One of these things is not like the other.

When you “just wow” this obvious fact, you lose credibility.

As opposed to: “Ultimately, I doubt it happened but, again, keep in mind that NONE OF US have seen the evidence. “

25 wukong 01.13.12 at 12:57 pm

““Professor Todd Pettys asked Wagner whether analysis or writing was more important to the LAWR position. Wagner responded that both were important to the job. When Professor Pettys later asked Wagner if she had to choose between writing or analysis as to which was more important, Wagner responded that the question was unfair because both were important, but if she had to choose, she would pick writing.
She further noted that all classes at the University teach legal analysis.”

She thinks the question is unfair? I would not hire her for that reason alone. Reading that opinion does not give both sides of the story. That is not the purpose of a summary judgment opinion.”

The reason Stephens Hawkins is still considered intelligent is that he is able to communicate, otherwise he would be considered a drooling idiot.

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