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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.

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Meanwhile, some Andrew Sullivan readers point out that contrasts between the public and private sectors can be overdone, since it can be legally troublesome for private managers, too, to fire poorly performing workers. I wrote a whole book tackling related themes some years back.

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Readers of my book on employment law, The Excuse Factory, may recall the somewhat similar case with which I started off Chapter 1. Incidentally, those who are curious what became of the Boston police officer cited in that account may be interested in following this link.

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The city has never granted anyone extra time on the lieutenant’s or captain’s exams, said Felicia Wirzbicki, human resources generalist. … The reasoning is that lieutenants and captains are in charge at emergency scenes and have to make split-second decisions, Wirzbicki and other city officials said. Those decisions often are based on floor plans, hazardous material reports and similar documents, they said. Speed is an “essential function of the job,” the city argued. … “You don’t get extra time at a fire scene,” Wirzbicki said.

None of which seems to cut much ice with disabled-rights advocates:

“You’re supposed to give accommodations, period,” said Suzanne Kitchen, a clinical instructor and consultant for the Job Accommodation Network, a federally funded non-profit that provides employers with advice on disability rights. “No is never the right answer.”

That last sound bite is actually quite false as a legal matter; in fact Ms. Kitchen herself is described elsewhere in the article as correctly noting that accommodations may sometimes be refused under the law. But it does have quite a ring to it, though, doesn’t it? (Zach Lowe, “State official: Disability rights apply on fire captain test”, Norwalk Advocate, Jan. 15). Jeff Hall at Created Things comments (Jan. 16).

All of which is very much business as usual in today’s employment discrimination law. Long before the disabled-rights suits came along, fire departments had came under intense attack by feminist litigators seeking to invalidate testing of applicants’ physical strength, agility and so forth, particularly when timed tests were involved. I wrote about this history at some length in The Excuse Factory, a few of the highlights figuring in this 1997 magazine piece. An excerpt:

[In Brunet v. Columbus] Judge Kinneary also disallowed the city’s practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs’ lawyers, testimony had been given that “sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand.” In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, “anecdotal.” Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they’ve heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say “speed is critical” in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. “Opponents argue that it is not.”

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So now Britain has its own law banning employers from considering workers’ age in most job situations. If your experience follows ours in America, the results will include a range of unintended consequences, some of which will worsen the plight of the workers the law was meant to help.

(Walter Olson, “If the US experience is anything to go by, be sceptical of Britain’s new age-bias laws”, Times Online (U.K.), Oct. 18). I treated this subject at length in my 1997 book The Excuse Factory and did a USA Today opinion piece back then exploring some of the ways the law backfires against older workers. The new British law has been getting some attention in the States, in part because of the news item about the company that has banned office birthday cards as potentially ageist (Oct. 13) and the one about the recruiting agency (Oct. 17) that is barring use of any of a list of words including vibrant, dynamic, gravitas, ambitious, and hungry to describe potential employees.

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I won’t use words like “mentor” and “role model” to describe Anne’s influence on me, if only because I can imagine her penciling them through with a notation in the margin, “jargon“. I will say that no one in my professional life ever taught me more about how to write, or work with others, or behave as an adult, or see past the political enmities of the day. When I dedicated my book about legal conflict in the workplace, The Excuse Factory, to Anne, it was the inevitable tribute of memory to the perfect boss. If you’d like to learn more about her life and work, Claudia Anderson, long a close friend of hers, has written a very fine appreciation in the new Weekly Standard.

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