The Tort of Political Discrimination

I’d like to raise a subject for discussion that is not that walking, talking amalgamation of ambiguity that goes by the name of “Ron Paul” because I think there’s plenty of talk about him going on here already. So I offer for your consideration a very recent case decided by the Eighth Circuit Court of Appeals, Wagner v. Jones. The question here is — can a public university legitimately discriminate in the hiring of an employee based on the candidate’s political beliefs?

Teresa Wagner is a lawyer, and one well-qualified to teach at an academic institution. Thing is, she’s quite politically and socially conservative, took her law degree from Ave Maria School of Law, and dedicated part of her early career to advancing a pro-life political and legal agenda.

She applied for a position as a legal writing instructor with the University of Iowa School of Law, a public institution, one with a reputation as having a very liberal faculty. She interviewed very well, earned very good reviews from students who listened to a sample lecture she gave, and impressed all the faculty with whom she met. She was passed over for both full-time and adjunct positions, in favor of other candidates with substantially less experience, lower marks evaluating interviews, and, for purposes of our discussion, generally fewer qualifications and professional achievements.

Allegedly, the ringleader of the faculty rejection of Ms. Wagner’s application was a law clerk for Harry Blackmun the year Roe v. Wade was decided, and the only negative feedback Wagner received during her several interview processes was about her political activism; on the basis of the recital of facts in the case, it seems to me to be at least a colorable claim.

Again for purposes of our discussion, we can assume that the faculty at Iowa who evaluated her application based its decision wholly on distaste for her politics; although that may turn out not to be true later. The procedural posture of the case requires that we consider the disputed facts in the light most favorable to the plaintiff, and so we shall in this post. Wagner brought a suit against the Dean of the University of Iowa School of Law under 42 U.S.C. § 1983, alleging that her First Amendment rights to political expression and free association were abridged by the Dean’s decision not to hire her. The question before the Eighth circuit is whether such a claim is even possible under the law, and the court decided that yes, it is.

To agree with this conclusion, you must first accept the idea that the First Amendment has been incorporated to the states at least as to its guarantees of free political expression and political association, and thus that Iowa (and therefore its public university) is bound by it. Fortunately, this proposition has substantial caselaw behind it, including but not limited to the famous case of NAACP v. Alabama (1958) 357 U.S. 449.

Then, you must also accept that political expression, political belief, and political activity are properly considered protected by the law — the Constitution, specifically — for purposes of making an employment decision. And you need to remember that the University of Iowa School of Law is a public, not a private, institution.

After that, you need to wrestle with the following competing concepts, because this is a university we’re talking about:

Academic freedom is a “special concern of the First Amendment.” Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967). “No more direct assault on academic freedom can be imagined than for the school authorities to [refuse to hire] a teacher because of his or her philosophical, political, or ideological beliefs.” Bd. of Regents v. Roth, 408 U.S. 169, 187-88 (1972) (Douglas, J., dissenting). But this court has recognized that respect for the “singular nature of academic decisionmaking” is also warranted because courts “lack the expertise to evaluate tenure decisions or to pass on the merits of a candidate’s scholarship.” Okruhlik v. Univ. of Ark., 395 F.3d 872, 879 (8th Cir. 2005). The Supreme Court has also emphasized the respect due to academic judgment. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (“When judges are asked to review the substance of a genuinely academic decision, . . . they should show great respect for the faculty’s professional judgment.”). Thus, judicial review of such decisions is limited to whether the “decision was based on a prohibited factor.” Brousard-Norcross v. Augustana Coll. Ass’n, 935 F.2d 974, 976 (8th Cir. 1991).

The Eighth Circuit resolved the tension between academic freedom and free political expression on the one hand, and deference to academic decisionmaking on the other hand, by noting that the position for which Wagner applied was not a policy-making one, and therefore borrowing law from the First Circuit applying the Mount Healthy burden-shifting standard — meaning that the initial burden is on Wagner to show facts from which a jury could reasonably find that her politics was a substantial part of the reason she didn’t get the job, and then the burden shifts to the University to offer facts that would show that even absent the political discrimination, she nevertheless wouldn’t have got the job.

What’s more the Eighth Circuit found that the dean of the law school knew, or should have known, that she was to ignore Wagner’s politics when making her hiring decision. This was, they thought, sufficiently clear based on the law that any reasonable law school dean would have known this. I’m not so sure I agree with the Eighth Circuit on this. There are fairly substantial cases out there, some of which the Eighth Circuit cites in the long blockquote above, indicating that there is a lot of discretion in making academic hiring decisions. But the court said that such discretion is only appropriate for “confidential” or “policymaking” positions and Wagner was not applying for such a position, and that’s not an inconsiderable issue.

Which leaves me with an ambiguous case. On the one hand, Wagner clearly has a First Amendment right to advocate the politics she prefers. On the other hand, academic institutions have a need to be particularly selective in making hiring decisions. I think on balance the Eighth Circuit made the right call here, though. If the facts are that Wagner was objectively that much better-qualified than the other applicants, and the faculty advising the Dean about hiring decisions was motivated, as a practical matter, solely by her politics, that’s a pretty effective chill to expressing one’s political beliefs. Indeed, that very chilling effect is a primary reason I have chosen to blog under a pseudonym, so I know where she’s coming from and I sort of admire her for standing up and calling “bullshit.” Even though I likely don’t particularly agree with a lot of her politics.

You don’t need to be liberal or conservative or anything else to teach legal writing skills to young lawyers; the knowledge, skills, and abilities involved are ideologically neutral. If what she claims is true, it’s obnoxious, and so I want to see her be able to sue — and if it’s a close case, the law ought to tend to maximizing individual freedom rather than restricting it, so I can feel principled in my preference. Let the University defend its hiring decision on its merits, if it can. If not, let Ms. Wagner recover because she had a right to be in the political arena.