The Tort of Political Discrimination


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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118 Responses

  1. Avatar Koz says:

    Paging Mark Thompson, paging Mark Thompson.

    “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.”

    I won’t say whether the court ruled this one right or not. It’s already a travesty by the time it makes it into court. The only good that can come of this is that the offending parties can be named and shamed.

    You really want to be associated with Team Blue? If it’s a matter of avoiding intellectual corruptions, you should want to play for Team Red instead.Report

    • Avatar Kim says:

      because letting the credit card companies write the laws regulating them turned out SO Well…

      Team Red: We Won’t Govern, Let ANYBODY unelected do it instead! (to wit, allowing relatively un-adept-with-the-subject-material (if not actively hostile) people who think that life-saving research is immoral, because of Which Lives it is saving, to decide policy).Report

    • There have been no shortage of legitimate political affiliation/1st Amendment discrimination claims against Team Red over the years, up to and including the present.  I’m not saying Team Red is worse than Team Blue, just that it’s no better.  Indeed, one of the leading and most important cases in this area of the law is Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).

      Here are the undisputed facts of that case.


      • Avatar BlaiseP says:

        It is the height of irony to now see the Conservatives intent upon acting as if they were a protected minority deserving of quota hiring.Report

        • Avatar Koz says:

          Sometimes I think we’d be better off if things worked that way, but that’s not the point. For every 100 times this happens, there’s maybe one lawsuit.Report

        • Avatar Koz says:

          Let’s also note, we can blame the victim here too. According to the judge, she had a tenure-track offer from Ave Maria and the matter under dispute seems to be a less prestigious job at Iowa that she happened to want.

          Most people would have just gone to Florida in that circumstance and maybe she should have too. But again that’s secondary. What it’s really about is institutional abuse as an intellectual corruption of Team Blue.

          Yes, their team does that routinely. No, our team doesn’t. But for some reason Mark wants to associate with them anyway.Report

          • Avatar greginak says:

            Certainly the Bush admin  was completely clean of any favoritism towards hiring other R’s in DOJ. Scandal free all the way.Report

          • Avatar Tom Van Dyke says:

            One Republican out of 50 faculty members.  What were the odds?  Spooky coincidence, eh?  Move along folks, nothing to see here.Report

            • Liberal bias in academia is something worth discussing – there is no doubt that liberals dominate academia.  The notion that conservatives don’t engage in political discrimination in employment where they have power just as much as liberals do, however, is blatantly lacking in factual support.  As greg points out, there’s the whole Gonzalez-era DOJ thing, and of course the Rutan case I cite above, along with no shortage of other examples that I could find in a few minutes on Lexis.Report

              • Avatar Tom Van Dyke says:

                MarkT, those were explicitly political scenarios, not schools.  And the Bushies caught justifiable hell for the DOJ.  Tu quoque demands a similar outrage for the quoque and I’m not feeling it here.Report

              • I think you and Koz are talking about slightly different things here, Tom.  Koz is basically saying “only liberals pull this type of garbage because liberals are evil and nasty and intellectually corrupt.”   I’m responding to that; so I’m not making a tu quoque argument. I’m saying that his premise is wrong.

                You seem to be going down a slightly different road.  Knowing you, I’d expect it’s probably a fairly interesting and perhaps even supportable point.Report

              • Avatar Tom Van Dyke says:

                No doubt, MarkT.  😉

                Arguing “my side doesn’t do x” is a recipe for disaster, no matter the issue.  Where human beings are involved, x is usually somewhat constant.

                Since I have you here, I was interested that you implied you might have taken Wagner’s case.  Any of your thoughts would be interesting.  I find it hard to imagine where her case is on the constitutional level.  Should Voice of America be legally obliged to hire Noam Chomsky?


              • I’m seriously mulling this over, though I don’t have time right now and need to duck away for the next few hours.  It certainly would be a post that I’d enjoy writing.  My big concern with doing a post to that effect is that I might wind up making too many points that hit too closely to the below-referenced pending litigation for my comfort.  If I can figure out a way of doing it that I’m comfortable with over the next week or so, I’ll put it together.  It would be quite a bit of fun for me.Report

              • Avatar Tom Van Dyke says:

                Changed the subject, then went ad hom.  WD, Jesse.Report

              • Avatar Koz says:

                “Koz is basically saying “only liberals pull this type of garbage because liberals are evil and nasty and intellectually corrupt.” “

                That’s maybe a tad more pejorative than I’d put it, but pretty much. Let’s emphasize though, it’s not like the intellectual corruptions of the Left are limited to this.

                I guess that’s my point. When you count mainstream academia, public employment law, private employment law, mainstream media, most people have seen the effects of lib-Left intellectual corruption and have come up with ways to navigate though it. But just because most of us have worked our way around it one way or another, it’s still there. Whereas a typical bourgeois American can live to be 100 and never encounter the intellectual corruptions of the Right.

                (The policy errors of the Right may be more visible, but if I understand you correctly that’s not your liberaltarian angle.)Report

              • This is true if one is a conservative that generally runs in circles dominated by Democrats.  The reverse, however, is equally true if one is a liberal that generally runs in circles dominated by Republicans.Report

              • Avatar Kim says:

                Care for a drop of Tansy Tea?Report

              • Avatar Koz says:

                “The reverse, however, is equally true if one is a liberal that generally runs in circles dominated by Republicans.

                Like how? I hope you’ve something better than the Rockwell-Rothbard newsletters.Report

              • Avatar BlaiseP says:

                C’mon, Koz.   Allow me to enter the entire career of Justice Clarence Thomas into evidence, especially his tenure at EEOC.Report

              • Avatar Koz says:

                That’s a stretch at best. Maybe you have something for DC Circuit of Appeals but IIRC all his jobs were politically appointed positions where political reliability is arguably an essential part of the job.Report

              • I believe there have been two pretty prominent examples cited in this thread, one by me and one by greginak.  The Rutan case is especially egregious – the mandate that political support of the GOP be a factor in employment decisions extended all the way to even road workers and garage workers.  Indeed, it applied to just about every state employee so far as I can tell, which would presumably include university employees such as professors.Report

              • Avatar North says:

                Heck, both Frum and Bartlette were heaved from conservative dominated instututions not even for being liberal but merely for being inadequately crackpot right-wingy.Report

              • North: I wouldn’t want to include that for purposes of this discussion.  You’re dealing there with expressly ideological private entities with a specific ideological mission.  Firing those who deviate from that mission in a particularly public fashion is an entirely different animal from what we’re discussing here.Report

              • Avatar North says:

                Fair enuff, I stand corrected.Report

              • Avatar Koz says:

                First of all, IIRC the DOJ thing was primarily about US Attorneys and secondarily about a few offices of DOJ headquarters in Washington. USAs themselves are political appointees. The rest of it is pretty small beer. How many lib lawyers couldn’t find a career job at DOJ because they’re being discriminated against for being lib. Probably a few during the Bush43 Administration. Not very many.

                The Illinois thing was more about Illinois than the GOP. In fact that’s the sort of thing the Tea Party was formed to stop. Even there, most patronage is about getting political work done on the government dime, which is bad enough but still not as bad as what the Iowa profs were doing (for the sake of your liberaltarian intellectual corruption premise). Ie, if Mrs. Wagner had published pro-abort scholarship she’d be fine, but instead she wrote pro-life work instead.Report

              • Avatar Kim says:


                couldn’t find JOBS? goddamn, you are ignorant. Tell me about getting fired. Tell me about a civil rights division that got basically “revamped” with new Conservative people. If there’s one place where you’d expect liberals to be probably the better choice (okay, liberal LAwyers, who can be relied on to stay within the Law)…

                And jesus christ! you think it was just liberals who got problems under GWB? holysheet, you should talk to some true civil servants at the CIA. Trustworthy conservatives had it WORST, because they wouldn’t kowtow to the MAN, and they coudlnt’ be shrugged off as “just another liberal”Report

              • Avatar BlaiseP says:

                @Koz:  Here’s the point you made:  les bourgeoises could live to 100 and not perceive the intellectual corruptions of the Right.   When Clarence Thomas was at EEOC and Reagan was taking long naps in the Oval Office and Oliver North was down in the basement of the White House, the bourgeois and the proles got a clear picture of the Intellectual Corruptions of the Right in rather large doses.

                The Right has a tendency to appoint True Believers far out of their league to positions where the essential part of their job is to behave as corruptly as they’re told to behave.   That part seems essential.Report

              • Koz: You are now into self-parody territory.  This is all special pleading in the extreme.  You are making a broad and absolute claim about liberals and conservatives, but then dismissing any counterfactuals that do not involve precisely the same facts as in this case.  Indeed, you refuse to even discuss any counterfactuals outside of academia, which just so happens to be the one relevant area that is dominated by liberals, so of course there will be more instances of anti-conservative discrimination there than of anti-liberal bias.

                To say that the Rutan case was more about Illinois than the GOP misses the point completely, even if it’s correct (and I’m not at all certain how it is, especially given that the 4 dissenters were all from the conservative wing of the court).  To dismiss the Bush-era DOJ problems is perhaps even more absurd.  Notably, both of these examples were on far wider scales than the case discussed in this post.  You seem to think that makes them more justifiable, though the contrary is true.

                If you are going to engage in special pleading, then it is just as easy for me to say that the case discussed in this post says more about the University of Iowa than it does about liberals.

                However, if you really want identical examples to this, it is not difficult to find them.  Ward Churchill comes to mind quite quickly (and yes, he’s a despicable person and all of that, and his views are even more despicable, but he was also clearly fired for his political views and that firing was clearly pushed by the Right).  Boyce Watkins is another one.Report

              • Avatar Tom Van Dyke says:

                I dunno, MarkT, it seems you’re really reaching.  Watkins wasn’t even fired and I had to look him up to even know what you’re talking about.

                [Bill O’Reilly went after him for calling him and Hannity “”UnAmerican borderline Klansmen.”  Watkins went after O’Reilly’s sponsors in return.  This all doesn’t amount to much, IMO.]

                Ward Churchill?  Yeah they went after him for “Little Eichmanns” [which I found interesting, as the same argument works for Dresden and Hiroshima], but he was nailed for falsifying research.

                [His case is still on appeal; in fact some of the issues seem relevant to the Wagner case.]

                As for the DOJ argument, that’s a specific political case, not a systemic indictment.  And already I’ve heard more about the Bushies, who are gone, than the current mess that is Eric Holder’s DOJ.

                Every Single One: The Politicized Hiring of Eric Holder’s Voting Section

                All sixteen new hires to the Voting Section have far-left resumes — which were only released following a PJM lawsuit. 


              • Avatar Koz says:

                “The Right has a tendency to appoint True Believers far out of their league to positions where the essential part of their job is to behave as corruptly as they’re told to behave. “

                That may be true, but your supposed examples don’t help. When Clarence Thomas, Ronald Reagan, and Oliver North were in swing they were Republican officeholders implementing Republican policies, and thereby defeating Communism and our previous episode of Demo unemployment.

                Which is much different than the facts of the present case. Libs have no proprietary interest in University of Iowa Law School, there is no standard of legal scholarship that mandates that a professor be lib. And even if there were, there is no standard of legal writing that says a writing instructor has to be a lib. Note, part of the reason Mrs. Wagner won this latest round is that the idea that there should be an ideological litmus test for a writing instructor is ridiculous.

                They might have gotten away with it if they were hiring for a professorship but it’s still just as sleazy.Report

              • Avatar BlaiseP says:

                They are true and I find them remarkably helpful.   North was told to sell arms to our enemies and lie about it and he did and Reagan lied about it, too.  Clarence Thomas was told to ensure no class action suits were filed and that’s how it went.  Republican policies weren’t “implemented”:  the laws simply weren’t obeyed, not that Republicans ever gave a damn about the rule of law for all their braying about it.

                Communism wasn’t defeated by Ronald Reagan.   That’s nonsense.  As far back as 1982 I am on record saying the USSR would fall from within.   My prophecies come true, not because I’m so much smarter, I’m not.   The worst-kept secret of the Cold War was just how wretched the Soviet armed forces actually were.

                As for the Wagner case, I don’t see any problem with finding for Wagner the plaintiff.   There’s enough email evidence to demonstrate the university knew it was running afoul of First and Fourteenth Amendment consideration.   If they didn’t like this woman, they should have cut her out in the first pass, just pitched her resume in the Circular File.   Liberal I am and Liberal I remain:   I don’t like quotas.   They jigger the reasonable standards which govern ethical conduct.

                You have made preposterous claims about Liberal Bias.   It’s been a while since you encountered an actual Liberal, clearly:  like old Herodotus when those Arabs were having him on about the unicorn, you really mustn’t believe everything Rush Limbaugh tells you.Report

              • Tom: Keep in mind the claim that Koz is trying to argue here:

                When you count mainstream academia, public employment law, private employment law, mainstream media, most people have seen the effects of lib-Left intellectual corruption and have come up with ways to navigate though it. But just because most of us have worked our way around it one way or another, it’s still there. Whereas a typical bourgeois American can live to be 100 and never encounter the intellectual corruptions of the Right.


                What it’s really about is institutional abuse as an intellectual corruption of Team Blue.

                Yes, their team does that routinely. No, our team doesn’t.

                The alleged facts in this case are the evidence upon which Koz is relying for the first half of each of these two claims.  I am willing, for sake of argument, to stipulate that this case is evidence of intellectual corruption on the Left.  It is the second half of those claims -ie, the absolutist claim that “our team doesn’t,” etc. with which I am taking issue.  This is a low bar for me to meet.  That my examples are distinguishable in some way from this case is not terribly relevant – all examples will be distinguishable from all others in some way, especially in this context.  But if we’re making a general, absolutist claim about liberals and conservatives, as Koz is, then we can’t focus on subtle distinctions from case to case whenever contrary evidence is put forward while refusing to acknowledge subtle distinctions in the case being used as Exhibit A1 for Koz’s point.Report

              • Koz:

                 the idea that there should be an ideological litmus test for a writing instructor is ridiculous.

                Absolutely it is. Is it really more ridiculous than the notion of an ideological litmus test for a road worker, though?Report

              • Avatar Koz says:

                “To dismiss the Bush-era DOJ problems is perhaps even more absurd. Notably, both of these examples were on far wider scales than the case discussed in this post. You seem to think that makes them more justifiable, though the contrary is true.”

                No, not at all. First of all, I probably concede more of your point than I let on before, particularly wrt Illinois. I could write more, but I want to hit “Submit” sometime. Wrt to the Bush DOJ, I do think that most of that can be attributed to policy as opposed to supposed intellectual corruption.

                “If you are going to engage in special pleading, then it is just as easy for me to say that the case discussed in this post says more about the University of Iowa than it does about liberals.”

                Oh, you very well could but I think we’d both agree that really doesn’t hold water. I think we’d agree it’s pretty much the same if you were at Oregon or Minnesota or North Carolina.

                Otoh, I don’t think Illinois case can generalize. Do you have to kickback to the Republican political establishment if you want to be a meter maid in Tulsa or a garbage collector in Omaha, if they happen to be in power at the time? I don’t think so.

                You did, for a period of time, for positions that should have nothing to do with politics or policy, in the State of Illinois and GOP controlled-jurisdictions close to Chicago, eg DuPage County. And guess what? They got busted, which is fine by me.

                And this Iowa case is unique imo for just that reason. It’s very difficult for me to think that we’ll be able to rectify the intellectual corruptions of Team Blue by judicial order. We’re all much better off if we can simply tell Prof Bezanson that he’s a turd and should cease being one.Report

              • Avatar Koz says:

                “Is it really more ridiculous than the notion of an ideological litmus test for a road worker, though?”

                Not at all. I should have conceded that before if it weren’t clear. Though, I do think this is illustrative of the idea of Team Blue intellectual corruption.

                Because, as I understand Illinois patronage, the idea is that if you want to be hired by some arm of government, you have to give time and/or money to the political establishment that hires you. Chicago mayor Richard J Daley famously told Jesse Jackson that he’d have to collect tolls and work a precinct if he wanted political traction in Chicago. (And I’m not completely sure but I don’t think that was meant as a gratuitous insult though of course Jackson took it that way.)

                Whereas, that’s not the issue with this case at all. No one is forcing Mrs. Wagner to donate to the Iowa Democrats as a condition of employment. They are unwilling to hire her at all, because of their own ideological rigidity, as a symptom of their intellectual corruption.Report

              • Avatar Tom Van Dyke says:

                MarkT: The issue starts with 1 Republican out of 50 on the faculty. Something’s up, except to the most disingenuous of rationalizers.  I’m pleased to see you’re not one of them.

                If you want to beat Koz on debating points, I imagine you’ve won because he’s made too expansive a claim.  Further, one it descends to quoque, if you have ten, I’ll round up 11.  But I do not think your counterexamples are particularly apt: Watkins wasn’t even fired and Churchill was nailed for falsifying research.

                The real issue never gets to firing—righties simply aren’t hired in the first place, their applications finding their way to the circular file all on their own, heh heh.  There’s seldom a smoking gun, and Wagner likely only got an interview because she’d already been working on campus.  [A manifestly lesser-qualified grad student who was an assistant to a major Lefty Prof on Campus got one of the gigs instead.]

                I’m not an attorney, but it seems to me this sort of thing can’t be fixed by law, or at least a satisfactory one.  It’s one of those things.

                Same with newsrooms, another presumably “neutral” vehicle for the dissemination of information to the public at large.  Koz could certainly tighten his case in both content and rhetoric, but defeating his overreaches isn’t the same as getting to the truth of the thing.Report

              • Avatar Koz says:

                Again this is all important in the context of your liberaltarian wish to associate with the Left as opposition to the Right. And this is what comes around the pike today, one day after we finished killing a trillion pixels about RP.

                Tomorrow it will be something different, and the day after that.

                But apparently the best evidence of your grievance against the Right has to do with the Rockwell-Rothbard newsletters.

                There’s enough “give” for you to spin libertarianism toward toward your hopes and aspirations. But you can’t spin Leftism that way, either historically or intellectually. They’ve earned their label and we all have to live with it.Report

              • I think we’d agree it’s pretty much the same if you were at Oregon or Minnesota or North Carolina….

                Otoh, I don’t think Illinois case can generalize. Do you have to kickback to the Republican political establishment if you want to be a meter maid in Tulsa or a garbage collector in Omaha, if they happen to be in power at the time? I don’t think so.

                I think they’re both more or less equally generalizable.  I went to a law school with a pretty famously liberal faculty.  I actually can only think of a single professor who would have been a registered Republican and/or pro-life (I’m sure there were others, but certainly none whose classes I took; there were and are a couple who could fairly be described as libertarian, though).  That professor was pretty much identically situated to Wagner here – prominent conservative and pro-life ties, a solid professional resume, and an adjunct writing professor my first year.  The difference is that my second year she was made a full-time professor and made the head of the Legal Writing Program.  To my knowledge – and I knew her quite well throughout my time in law school – she never had any real problems with any of the other faculty and instead got along quite well with them.  IIRC, she even advised me that it wouldn’t be much of a problem for me to put my at-the-time conservative credentials on my resume when looking for jobs.

                And the type of corruption in Ruhan absolutely still exists on a fairly wide scale outside of the Illinois context.  Not as blatant, to be sure – the precedent of Ruhan makes certain of that, but it’s still very much out there.  See, e.g., Goodman v. Pa Turnpike Commission, 293 F.3d 655 (3d Cir. 2002)(Republicans found to have denied a promotion based on political affiliation).Report

              • Avatar Koz says:

                “Again this is all important in the context of your liberaltarian wish to associate with the Left as opposition to the Right.”

                Just to flesh this out a little more, for thirty years or so, libertarians have generally been culturally associated with the Right, though there have been important tensions toward mainstream conservatism the whole time.

                Ie, the bigger libertarian organizations, Cato, Koch Brothers, Von Mises Institute, RP, etc., have had to chart a careful political-policy course. They’ll be with the conservatives in general, especially economic policy and issues involving property rights. But whenever they (conservatives) work themselves up about porn, dope, abortion or immigration, or whatever, we’ll work the other side just as hard as we do when the conservatives are with us.

                From here, if I understand you correctly, liberaltarianism says that’s not good enough. It’s not just a matter of picking and choosing the right policy in a particular circumstance, it’s that the general association with the Right is corrupting us (as libertarians).

                Ie, nobody’s bringing you in to say you have to support restrictive immigration. You were already on your own for that one. It’s the idea that libertarianism is intellectually corrupted by association with the Right. And once you look past it as an assertion or talking point, I can’t see any actual evidence for that proposition at all.Report

              • Tom:

                I’ll surely cop to there being an academic, and indeed even a mainstream media, bias against hiring righties on average, though in the latter case I’d characterize it more as a bias in favor of hiring centrists and moderate Dems/neoliberals.  This is also not a new topic.  I do think the effects of this bias are somewhat exaggerated though.

                Presumably, you’d concede that liberals are more likely to make efforts to enter those professions (and to a lesser extent the practice of law as well) in the first place.  Surely not 50 times more likely, but significantly more likely.  FWIW, I view this as more of a positive for the Right and a negative for the Left, particularly as applied to academia.

                So under any circumstances, I think you’d have to concede that liberals are going to make up an sizable majority of those professions.  I would argue that whenever you have one group of likeminded people in a dominant power position within an institution, whatever the basis for their like minds, and absent other pressures (such as the profit motive or objective criteria of evaluation), that group will tend towards strengthening its dominance on average.  It’s not so much a conscious bias, though sometimes it can be, as it is just a typical in-group, out-group dynamic.

                That doesn’t justify it, mind you.  It just says that this isn’t something inherent in liberalism, but rather it’s something inherent whenever an in-group, out-group dynamic is at play.Report

              • Avatar Tom Van Dyke says:

                MarkT, I’m good with the in-group/out-group dynamic as a human thing.  But I think Koz has been put on the back foot [or put himself] so much that his point is being minimized to zero.  You yrself write that leftish biases are “exaggerated,” but it’s just that sort of passing note that amounts to a dismissal of the whole thing.

                Your cite of Goodman vs. Turnpike is apt, but I think that’s the man-bites-dog that makes for news.  I do think Koz is in the zone, but only a “soft” argument can be made here–no data exists to “prove” anything, and even when some righties come up with some research that “proves” media bias, that’s dismissed as well.  It’s an epistemological no-go zone, which is why I don’t even enter in at the grenade level.

                But I do think lefties are far more political on the whole, because politics is more central to their worldview.  [Think of Moynihan’s famous quote about “central truths.”]   At some point, it’s time to drop the grenades and ‘fess up.

                So too, I think that local politics and therefore patronage have been a left/liberal thing, although the GOP has finally started paying attention.  But Tammany Hall was a classic Dem thing, and Chicago politics has long been an open joke.  And Alabama, which has been a red state for decades, just got a GOP statehouse in 2010, after 136 years of Dem control!  Street-level politics was never really a GOP thing.

                Now, Goodman v. Turnpike is all well and good, and even though I think the Dems have the opportunity for patronage games more often, I agree with your initial argument, that it’s the nature of the human beast, regardless of party.

                But it’s the left’s hegemony over academia [one Republican in 50???] and the media that affects the lives of virtually hundreds of millions of Americans, and this cannot be minimized.  Mr. Koz is in the zone here, although his specific locutions may not be.


              • Avatar Jesse Ewiak says:

                There were plenty of areas run by Republican political machines just as corrupt as any of the Democratic ones you like to point too so often. They just aren’t as famous as Chicago or Tammany Hall.Report

              • Avatar Jesse Ewiak says:

                I like how it’s absolute truth that only 1 in 50 people in academia are conservatives, but it’s still an open question whether or not climate change is happening. The conservative mind, everybody!Report

              • Avatar Tom Van Dyke says:

                Go for it, Jesse.  Tammany and the Chicago machine are America’s 2 biggest cities and ruled for decades.  You have a lot of catching up to do already, although I already admitted that the tu quoque game is a hopeless one.Report

              • Avatar wardsmith says:

                The notion that conservatives don’t engage in political discrimination in employment

                This is an interesting point Mark. The question from a business (as in company) perspective is largely moot, unless the business in question has as its raison d’etre something conservative or religious (ie the multiple Christian groups who have been sued lately because they won’t hire atheists, and/or require some form of genuflection to the faith).

                As far as the businesses I know, if the person is smart and talented, the company will scoop them up (better than to let the competition hire them). I’ve seen largely conservative companies turn a blind eye to virtually everything including sexual preference, politics and “liberal” bias. If they have to deal with the public who might likewise have conservative tastes, they may not get to wear nose rings and have purple hair, but for programmers and anyone out of sight, that is just fine in corporate America. Admittedly there are law firms that may require suits and ties and someone with a bone through their nose might shout discrimination but for most of the rest (although I’m not going on statistics here) I personally haven’t seen it. It doesn’t bother me in the slightest to hire liberals, that doesn’t even make item 100 in the top 50 things I care about a candidate. In academia I can easily see it making the top 3.Report

              • Avatar Kim says:

                You have academia, and then you have academia that exists to get shit done. The latter just looks for talent, as talent is relatively easy to judge. Not so in history, eh?

                Know someone who couldn’t get jobs because of a facebook page (showing crossdressing in college) — turned down after getting the informal offer, the case was pretty clear.

                Your company exists to “get things done” as I said. If i was hiring, I’d bear in mind “how much do we really need this person” and “how talented are they Really, vis competition.”

                It’s also fair to take “chemistry” into account in hiring.Report

              • Ward: That probably warrants a qualification on my part – obviously the profit motive can play a huge mitigating role here, as can situations where there is a defined and quantifiable goal, so the point would be largely -though not entirely – limited to situations where there is no true profit motive or where there isn’t “shit to get done” as Kim says.

                Also, it’s worth mentioning that just because I think this can and does happen just as easily with conservatives as liberals doesn’t mean that I think it’s consciously accepted practice by either or even that most conservatives or liberals do it when given the chance.Report

              • Avatar wardsmith says:

                @Mark, Where pray tell other than government, school and politics is it possible to exist without “getting sh*t done”? Unfortunately in the eat or be eaten (real) world of business you’re either getting it done or getting it done TO you. There isn’t a middle ground.

                Of course in “education” anything goesReport

              • Avatar Jaybird says:

                I have an acquaintance in academia who recently applied for a job that he was already doing. (Basically, they opened up a managerial position between himself and his supervisor and he was the de facto team lead of his team.)

                He applied for the job that he was already doing but since he didn’t have a particular credential (one that didn’t apply to the job), he didn’t get it. Someone with the credential got it.

                Now he tells me that it was more important that the job be filled than that the job be done.

                So instead of managing X people, he now has to manage X people plus his manager.Report

              • Avatar Kim says:

                Health care. Running a desk, anywhere, where you get paid to NOT do your job (providing customers with service).Report

              • Avatar wardsmith says:

                @Kim, and the paycheck comes from that magic bank account in the sky right?Report

              • Avatar Kim says:

                No, it comes from the company you work for. In the case of working a customer service desk, your money comes from convincing people that you can’t/won’t/shouldn’t give them what they deserve.

                In the case of health care, well, I needn’t explain start up costs to a businessman, amiright?Report

              • Avatar wardsmith says:

                Sigh, and the money that is in the company you work for‘s bank account gets there how? At the end of the day, someone has to provide SOME service to someone or no one gets paid. You might be having trouble with massive monolithic health insurance company, but even they wouldn’t have gotten so large without delivering services during their growth phase. Admittedly, they have acquired some regulatory capture benefit from the politicos but no one anywhere gets paid to continuously say, “No” except someone working for the government or one of its subsidiaries (schools, EPA, etc)Report

              • Avatar Kim says:

                Fucking Hell. Don’t do that to yourself, “no one” is a bad move in an argument.

                Your pixie dust of the week is to google the company that denied a woman’s miscarriage out in the rural Midwest, under the guise that she went to an emergency room for a voluntary abortion.

                That company refused to honor any claim request above a certain threshhold. ANY. Now, if you’re a person in their customer service department, you’re getting paid to not do work. Your work is to leave “satisfied” customers who hate you.

                Similar things go on all the time, surf consumerist a bit and you’ll see what I mean.Report

              • Avatar wardsmith says:

                Kim, you exist in a strange alternate reality where consumers have no choice. I had a bad insurance company once. I had a bad phone carrier once. I had a bad bank once. I’ll leave it to the intelligent reader to discern the common denominator here. As for googling your bizarre stories, Google them yourself and post the links. Anything less is… less.Report

              • Avatar Kim says:


                Yes, I live in this vast darkness where a free market cannot exist because corporations are always devising new and interesting openjaws. A market cannot be free if it is too opaque. And the worst are insurance companies, in that case — how do you know your current one is good? Have you reviewed, honestly, the negative reviews they get? Can you tell me, in detail, what they would do if you got a “terminal” or “chronic” illness? Note: not what you assume they would do, but what they have done.

                You’ll pardon me if I misdoubt your ability to judge value, I believe you’ve said more than enough to seal the case on that one.Report

        • Avatar Tom Van Dyke says:

          Untrue, Blaise.  Even David Horowitz calls quotas “appalling.”Report

      • Also, keep in mind that this particular case is at the summary judgment stage, so any disputed facts are resolved completely in favor of the plaintiff.  None of her allegations – which I emphasize may very well be true – can be taken as actually established at this stage.Report

        • Avatar Koz says:

          Come on. The majesty of the law views Gerry Sandusky as innocent till proven guilty. We don’t have to.Report

          • No, we don’t.  But this isn’t the Sandusky case, either.  Surviving summary judgment in a civil proceeding is an exceedingly low bar, and the facts alleged to survive summary judgment are quite frequently decided against the alleging party when the case proceeds to trial.


            • Avatar Koz says:

              If it’s not clear already Mark, my angle is about the intellectual corruptions of Team Blue more than the actual disposition of the case itself. My guess is that if you were representing Mrs. Wagner I don’t think this case would have been litigated this far.

              For anybody who has some familiarity with the workings of mainstream academia, we can rely on more than the appellate court decision for our understanding of the facts of the case.

              Why do you want to associate with this kind of thing? Especially given the nebulous link of Rothbard-Rockwell to the right?Report

              • My guess is that if you were representing Mrs. Wagner I don’t think this case would have been litigated this far.

                My guess is that your guess is extraordinarily wrong.  Extraordinarily.Report

              • Avatar Koz says:

                Really? Do tell.

                I’m not personally a member of the bar but if I were representing Mrs. Wagner I don’t think this would have been litigated that far. As I see it, she’s got a decent case but not a dunk. And the extra-legal circumstances going on means the risk-reward process is really really difficult to justify going forward.Report

              • This hasn’t actually been litigated all that far.  Suit was filed in January 2009.  According to PACER, the MSJ was apparently filed in December 2009.  So that’s less than a year, and from the looks of it, discovery was still ongoing at the time of the MSJ.

                The claims are comparatively strong, and definitely worth undertaking discovery, especially given the fee-shifting provisions of section 1983.  Add to that a reasonably well-off plaintiff who seems as or more interested in making a political statement as she is interested in getting a damages award, not to mention the real Constitutional concerns here, and it’s hard to see how it’s not worth pursuing fairly aggressively.  On top of that, since the case was decided on qualified immunity grounds, there’s a pretty good chance that the defendant did not really try to settle.Report

              • Avatar Koz says:

                Ok. I stand corrected.

                Without looking too closely I was thinking about the damage claims which I’d guess would have something to do with a non-tenure track position at Iowa Law School and maybe retroactive compensation for it, relative to the expense of publically advertising herself as a “difficult” hire.Report

              • Avatar Burt Likko says:

                I concur, with emphasis on the the last paragraph. Lawsuits settle when the parties perceive risk to themselves.

                The plaintiff here does not perceive that much risk. I haven’t run the case on PACER to see who counsel is — if she’s self-representing, or has some kind of an interest group representing her, then the cost to her of going forward is zero, or close to it. She seems to not particularly need this job (which doesn’t mean she didn’t really want it) for financial support. And what we know of her background suggests that she’s a True Believer, which means that her capacity for litigating beyond the point of economic efficiency exceeds that of a typical litigant looking for money.

                The defendant here, at least until recently, did not perceive any real risk at all. The opinion makes clear that the defendant was betting heavily on the doctrine of qualiified immunity, and it’s a good bet that yesterday when this decision was published, defense counsel felt punched in the kidneys. When I have a defendant who is confident about winning on a matter of law, I typically only receive (or make, if I’m on the defense side) nuisance value settlement offers instead of meaningful amounts of money intended to actually induce the plaintiff to resolve things. What’s more, the defendant has a principle to stand for as well, and again has attorneys who may well not be a significant financial drag on her resources.

                Cases settle when both sides see greater risk in proceeding than they do in resolution. Until and unless both sides see a realistic potential for a personal downside to proceeding with the case, the case will continue to move forward. The great likelihood is that, at least until yesterday, neither side perceived any substantial risk to themselves.Report

              • Avatar Tom Van Dyke says:

                Wagner’s attorneys appear to be an ambulance-chasing firm, not an advocacy group.  In other words, they could be doing it for the notoriety, but such firms are in business to make money.Report

              • Avatar Burt Likko says:

                Thanks for that, TVD. That being the case, it seems to me that the time is ripe, right now, for the parties to be talking settlement. A for-profit plaintiff’s firm needs to settle cases after significant work is put in, such as after completion of an appeal; a defendant needs to settle cases after risk has been demonstrated to it, as the Eighth Circuit has just done. Both sides ought to settle. Will they? That depends on how reasonable everyone is willing to be, and possibly on how skilled the neutral they hire to mediate matter is.Report

              • Definitely time to settle with this opinion in hand.  I would suspect that the Plaintiff’s attorneys have had a settlement offer in their back pocket ever since oral argument was concluded.  Winning on the QI issue makes their client’s political and Constitutional point; the rest is just a dispute over facts that could get pricey and involves a crapshoot with the jury, especially if they still have to go before the judge who granted SJ in the first place.  The Defendant isn’t going to want to risk a fee award if it goes all the way to trial.Report

              • Avatar Stillwater says:

                my angle is about the intellectual corruptions of Team Blue

                Koz, it’s just remarkable to me that you view everything a liberal does or thinks or says thru a Conspiracy-Filter of Collectivist-Plots-and-Schemes, as if each of us is a Borg and Resistance is Futile. It really stretches the limits of believability to think you walk around this planet, this country, your city or town, and view half the people you meet as being not what they seem, that they’re trying – and failing! – to cleverly disguise a secret plan for World Domination.

                Doesn’t all this conspiracy mongering get tiring?Report

              • Nob Akimoto Nob Akimoto says:

                Resistance is futile. You will be assimilated. Your politics and ideology will be incorporated into our own. Your culture will adapt to service us.Report

              • Avatar BlaiseP says:

                Let the Vogon Poetry Festival commence forthwith!Report

              • Avatar Tod Kelly says:

                Two great references, each well played, one after the other.

                happy sighReport

              • Avatar Tom Van Dyke says:

                One Republican out of 50 faculty members should at least raise an eyebrow, but it doesn’t.  Koz is not all wet here.


                “I’ll bet that most Post journalists voted for [Barack] Obama. I did. There are centrists at the Post as well. But the conservatives I know here feel so outnumbered that they don’t even want to be quoted by name in a memo.”
                — Washington Post ombudsman Deborah Howell in her November 16, 2008 column.

                More quotes from the horse’s mouths:


                “I know a lot of you believe that most people in the news business are liberal. Let me tell you, I know a lot of them, and they were almost evenly divided this time. Half of them liked Senator Kerry; the other half hated President Bush.”
                — CBS’s Andy Rooney on the November 7, 2004 60 Minutes.Report

          • Avatar Burt Likko says:

            The appropriate take on the actual facts at this point, as I see it, is that the plaintiff’s version of events is “plausible enough to justify moving forward, but as yet unproven.”Report

  2. Avatar Tod Kelly says:

    “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.”

    Ron Paul?  Who’s Ron Paul?Report

  3. Avatar Jaybird says:

    The first thing that I thought of was the Hollywood blacklist of Communists (or “Communists”).

    Are there no related precedents from that era that are applicable here?Report

  4. Avatar Tod Kelly says:

    Burt, I would be curious to hear you juxtapose this case and the one from last year, with the Michigan DA that was going after the gay student body president in his spare time.Report

    • Avatar Burt Likko says:

      Not familiar with that case. Linky, per favore?Report

      • Avatar Kyle says:

        My two cents is that the two are distinguished by fact that Wagner wasn’t harassing someone or using law school resources to do it. Link.Report

        • Avatar Burt Likko says:

          Wow. I’ve got no problem with firing Mr. Shirvell. He’s an assistant attorney general for the state, and as such is expected to personally observe the law, even if he doesn’t particularly agree with it. Then he turns around and stalks a college kid. If you break the law in a serious way while employed as a prosecutor, you need to expect some employment blowback, which is something that we employment lawyers call “discipline.”

          What’s more, as a prosecutor, he needs to not only be personally a model of obedience to the law, he also needs to be personally a model of fairness, sobriety, and rectitude. That doesn’t mean he is obliged to set aside his political beliefs or his advancement of them in his personal time. But it does mean he needs to conduct himself with a certain level of gravity in his personal demeanor, because what he does and how he does it will reflect back on his employer, who is in turn reasonably expected to be a fair and evenhanded dispenser of justice. So that means that if he does go out into the world and argues that in his opinion, homosexuality should be discouraged, he needs to moderate his tone, his style, and his demeanor. The photograph from the link looks like the sort of taunting one would expect from a college student during a beer-fueled rhetorical free-for-all. (Perhaps the photographer caught Mr. Shirvell at an inopportune moment.)

          If he used governmental resources to do his stalking, that compounds the problem even more. Prosecutorial agencies already have something of a reputation generally of being bullies and abusing their authority and power. Mr. Shirvell did not ameliorate this perception.

          None of these things relate to the viewpoint Mr. Shirvell was expressing in his political activities. They do, however, look like the sorts of things that people should and do get fired for doing.Report

  5. Avatar Kyle says:

    If your’e in the mood for a semi-related reading, I’m part way through an interesting article. [Terry Smith, Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 Am. U. L. Rev. 523 (2008)] The article discusses the role of political speech in allowing for discrimination and identity politics as a proxy for race.

    That said I pretty much agree with you here. The one thing I will say is that employment discrimination cases generally are tough. On one hand I have a lot of sympathy for great discretion after all for the employer and other employees having a well-functioning team involves finding people who can fit requirements that aren’t easily reducable to paper or wholly objective metrics. Wagner may have been a good fit for the most part but she may also have been technically good while just provocative enough to really detract from the culture the group had established and wanted to maintain. On the other hand (and this is admittedly cliche and paternalistic) sometimes you get what you need and not what you want. Long ago (relative to my age, not reality) we decided that it was not ok to say “this group needs a new worker, just not an Irishman, Italian, Jew, Negro Asian, etc…” It shouldn’t be too hard a leap to include political activists on the list.

    Final thought, it’s hard to look at this and not revisit the big discussion that arose months (years?) back about the potential political bias against conservatives in academia.


  6. Avatar sonmi451 says:

    Reminds of an an episode of The Good Wife, where a case of wrongful termination comes down to whether the employee believes (and tell her other coworkers) that what gay people do is disgusting because she’s religious or because she’s a garden-variety homophobe. She ended up losing the case because the opposing counsel proved that she was actively trying to hide her religious beliefs and affiliation, so her boss didn’t know that she hates gay people because she’s religious, and hence should have given a religious freedom pass. Opps!Report

    • Avatar sonmi451 says:

      “should have BEEN given”, sorry.Report

    • Avatar BSK says:

      This is where my thinking went… What is the diffence between religion and ideology? Shenwould have a slam dunkncase if they passed her over if she was a Jew, no? If so, why not claim she prays to the god Reagan of the Holy Churh of Conservatism?

      How much stronger or weaker would her case be if this was a private college?Report

      • Avatar sonmi451 says:

        But religious freedom is protected by the First Amendment, political/ideological freedom is not. So it does matter for example whether you hate gay people (and more importantly, go around telling your coworkers about it, creating a hostile workplace environment) because you believe in the words of the Bible, or because you believe what Rick Santorum says, or you’re a guy insecure with your own masculinity. I assume the first case would be protected by the First Amendment, but not the second and third case. That’s why Michigan could pass an anti-bullying law with a religious exception. I guess the court can debate what is considered religion and what is not, but I’m pretty sure even the current conservative-leaning Supreme Court would reject the definition of the Church of Reagan as a religion.Report

        • Avatar BSK says:

          But if we let courts decide what is and isn’t religion what sort of terribleprecedent does it set?Report

          • Avatar sonmi451 says:

            Maybe the court will go with the same standard as porn – I know it when I see it. I don’t believe Church of Reagan would qualify under that standard. But maybe Church of Ron Paul would, considering the zealotry with which his supporters are defending him. I mean, hey, if you have to call Obama a murdering psychopath who kills people because he feels like it just so you can make the case for Paul, why not, so devoted are Paul’s defenders and acolytes to him.

            Personally I find this distinction between the religious and non-religious unfair, and vulnerable to manipulation.  In the Michigan anti-bullying case, presumably you can torment gay students and tell them they’re going to hell and they’re disgusting etc etc as long as you say you get that from the Bible and you believe that the Bible is the word of God. We often hear about jailhouse conversions, I bet we’ll be hearing a lot of schoolhouse conversions next in Michigan. Suddenly every bully is a Bible-thumping Christians.Report

          • Avatar Jaybird says:

            This is pretty insightful, if you ask me. I tend to wonder what the next few manifestations of religion are going to look like following the Death of God.Report

          • The short answer to this is that the courts are not terribly keen on inquiring into what is and is not legitimate religious expression and have adopted constitutional doctrines to prevent them from really making much, if any, of an inquiry into whether a religious belief is legitimately held.  See, e.g.Report

        • Avatar Burt Likko says:

          …religious freedom is protected by the First Amendment, political/ideological freedom is not.

          I don’t think this is correct. Freedom of political expression is at the very core of the First Amendment.

          That’s the difference between a claim against a public employer and a private employer — a public employer, at least in some circumstances, must isolate not only religious but also political expression from its employment decisionmaking. Public employers are not covered by Title VII but are covered by the First Amendment by way either of the Constitution directly or statutes; in Ms. Wagner’s case, she appears to have successfully articulated a 1983 claim for violation of her First Amendment rights.

          Most private employers are covered by Title VII, for which the statement above would be correct — it protects religious identity but not political identity. The discussion following suggests that anti-homosexual animus may derive from a source which is blurry — is one anti-homosexual as a result of adherence to a religion that condemns homosexuality, or as a result of adherence to a political ideology of social conservatism? This is a murky subject indeed, and one that is ripe for unfairness to both religious and conservative people, neither category of whom are necessarily anti-homosexual to begin with.

          Were I an attorney charged with either prosecuting or defending a claim involving this issue, I would focus on the words used in the anti-homosexual remarks. I would expect my opposing counsel to do the same — while we’d both try to make those words fit in to whichever version favored our respective clients, there’s a reasonable chance that we’d ultimately have to ask twelve people who weren’t smart enough to figure out how to get out of jury duty to make the decisive judgment call. And if it worked out that a jury deciding that fuzzy issue was the difference between winning and losing, that’s a wild card more powerful than my comfort zone and I’d be telling my client that we need to have some serious out-of-court settlement discussions with the other side.Report

          • The statement that political/ideological expression is not protected by the First Amendment in the public employment context is definitely incorrect.  The only circumstance where that protection doesn’t exist is where the position is a policy-making position.  If I need to, I can get plenty of case law on that pretty quickly.Report

  7. Avatar Sam says:

    What was the university’s reasoning for choosing the other candidates?Report

  8. Great post, Burt.    Out of curiosity, have you handled any 1st Amendment discrimination cases?

    Oddly enough, there’s some stuff in this decision that tangentially relates to a case I’ve got pending on appeal at the moment.  I’d be particularly curious to find out why summary judgment was apparently granted – and not appealed – on the official capacity claims, leaving only the individual capacity claim.

    Speaking of which, this is one thing that isn’t clear from your post, but which you might want to clarify.  I say this because the meat of your post is about qualified immunity (though you don’t mention qualified immunity specifically, presumably because you’re trying to simplify this for a lay audience), but qualified immunity only applies to individual capacity claims.  The official capacity claims, of course, are effectively claims against the law school itself in most circumstances.

    Even though you’re writing for a lay audience, in this case that distinction is important because this analysis doesn’t say anything new with respect to an individual’s ability to recover in the academic context for First Amendment discrimination from the government itself, only from the supervising official personally, which is typically a much higher bar.

    That said, I also think that the Eighth Circuit was on much firmer ground than you seem to think in concluding that this type of discrimination was prohibited, so YMMV.Report

    • Avatar Burt Likko says:

      Well, since you asked. Indeed, I did gloss the qualified immunity issue because my intended focus here was to address the policy question of the appropriate limits of hiring discretion in a public university setting, and that seemed to me to be based more strongly on the existence of the tort rather than the Dean’s constructive knowledge of the First Amendment and thus qualified immunity. I don’t think that issue (whether the First Amendment ought to exclude a faculty candidate’s prior political activities from consideration in making a hiring decision) is at all clear, and strong arguments can be made on both sides. And I don’t think one necessarily needs a legal education to opine on that issue, so that was where I wanted to put my editorial focus.

      As to the qualified immunity issue, the Dean herself appears to have personally favored (although not by a whole lot) Wagner’s candidacy, but the opinon picks out evidence from the record that makes her appear to be almost passively deferential to the faculty’s collective decision-making, and hints that the guy who used to be a Blackmun clerk was something of an ideological bully who rallied the faculty around the “no conservatives allowed” banner. Since this is a review of a summary judgment, the Eighth Circuit assumes this theory to be true, and cherry-picks the evidence from the record that supports it. Reading between the lines, I intuit the University’s defense being Wagner’s answers to a set of questions distingusihing between writing and analysis as within the scope of the job as its proffered nondiscrimiantory basis; they’ll ultimately say that she bungled those questions and therefore simply did not understand what she was being hired to do, which they say would be a legitimate reason not to have hired her at all and if it were true, would certainly merit sober contemplation. Evaluating the evidentiary strength of that defense would require a comprehensive understanding of the fruits of discovery, which is not something I think this opinion permits us to do because of the lens through with the Court is obliged to review the case.

      Again reading between the lines, my suspicion is that the Dean likely actually believed that she could decide as she pleased on pretty much whatever basis she wanted whether to hire or not hire a faculty member — in a way that she probably would not have felt free hiring a staff member like a custodian or a security guard. And yes, I think that was a mistake. She should have considered the First Amendment issue much more carefully — she is the dean of and a faculty member of a <i>law school</i>, which means she is herself a lawyer and ought to be at least minimally aware that she is nominally in command of a public institution bound by the Constitution. In my mind, that elevates the standard to which she is held for qualified immunity purposes because even if her practice and academic areas of study are other than these, she must have taken at least one Constitutional law class at some point in her career.

      And something about her vision of her job as Dean to be simply to act as the rubber stamp for the faculty’s collective decision-making strikes me as wrong. I’m uncertain if we’re past the line of poor leadership into ignorance of the law is that there seems to have been no effort whatsoever by the Dean to have solicited opinions about Ms. Wagner focusing on her objective qualifications rather than her political opinions. Being a poor leader is not (and ought not be) a tort. Being ignorant of law one ought to understand is a different matter entirely.

      As I wrote in the OP, while I think the decision is ultimately right, it’s not a crystal-clear call. The fact that it’s a law school is what makes me come down on the plaintiff’s side. There is some legal support for the idea that at least some employment decisions are discretionary enough that consideration of political opinion might be legitimately considered, particularly concerning the granting of tenure to an existing faculty member. But this wasn’t a decision about granting tenure. The Eighth Circuit made much of the idea that there was greater deference to positions requiring the handling of confidential information or which involved making policy for the institution, borrowing from case law developed in the First Circuit. So there are at least three kinds of employment decision, two of which relate to hiring and firing, where there was at least a gloss of support. While the prior case law isn’t exactly on point, I can at least see a degree of confusion about what the scope of discretion might be.

      Given that we’re talking abut the Dean of a <i>law school</i>, holding her to an standard of elevated knowledge of the law is appropriate, so I’d have concurred with the result as to the qualified immunity issue — the Dean ought to have known that she was treading on thin ice by allowing a decision to go forward based on a candidate’s political activity. But if this were, for instance, the psychology department rather than the law school, the same reasoning wouldn’t apply. The whole point of the qualified immunity doctrine is that the decisionmaker shouldn’t be obligated to go do a bunch of legal research (or to hire lawyers to do it for her) in order to understand what to do. If there is confusion within the law itself, the decisionmaker should be given the benefit of the doubt and immunized from personal liability. If this weren’t the law school, I would have been a lot more willing to find in the Dean’s favor on qualified immunity grounds. But this was in a law school and it is reasonable and fair to hold a lawyer accountable for knowing the law, or at least being able to spot an issue and then asking one of her colleagues who does make Constitutional law a field of study a few questions about it. Spotting issues, after all, is a core activity of a law school.Report

      • Thanks for this, Burt.

        Thinking about this a bit more (and I confess to having only lightly skimmed the actual opinion….I do have to do plenty of real work today!), but I think one critical factor here that puts the Eighth Circuit on firmer footing is that this was a writing professor position.  One’s political views cannot conceivably have any kind of relevance to how one teaches research and writing skills.  If, on the other hand, they were looking for a ConLaw professor or something of that nature, then I can at least see an argument that political beliefs are a legitimate factor to consider in hiring decisions – surely, a conservative is going to teach ConLaw differently from a liberal and the Dean (presumably a policymaker) has broad discretion over how he wants such a course taught.Report

    • Avatar Burt Likko says:

      Oh, and yes I am handling a 1st Amendment discrimination case right now. The blur in my current case is a whistleblower dimension, and I have a credible opportunityto save my client’s job rather than get him recovery for losing it. That makes the issue of my fee unclear as I usually take a plaintiff’s employment case on contingency, but I’d much rather solve that problem amicably with a still-employed client than collect a contingent fee after him being out of work for two or more years while I’m litigating his wrongful termination case.Report

    •  I’d be particularly curious to find out why summary judgment was apparently granted – and not appealed – on the official capacity claims, leaving only the individual capacity claim.

      Ugh. Sometimes I need to think more before I write.   This, of course, is a section 1983 suit, not a Title VII suit.Report

  9. Avatar BlaiseP says:

    The sum of Wagner v. Jones was remand for further consideration.   The case hangs on the actions of the then-dean Jones:  despite the clear warning of a potential violation of First Amendment rights (via the 14th Amendment) Jones hired on less-qualified instructors.

    Ottman v. City of Independence MO. sets the bar for such qualified immunity cases.

    But Wagner’s not in the clear, yet.   It’s now a matter of record she was advised to conceal a tenure track offer from Ave Maria School of Law, since it was known to be a “conservative” school.   Wagner knew exactly what she was getting into:  that she chose to act on this advice, putting aside a much better offer in favor of a two-bit writing slot says she was spoiling for a fight.


    • Avatar mark boggs says:

      But does that make what happened to her become any less wrong?  Sure, if she was itching for a fight and was being prodded to go looking for one with a back up offer ready for when the Iowa job wasn’t given, we could make all sorts of assumptions about her personally.  I’m just not sure that that changes the fact and the corresponding legal consequences that the law school passed over her because of what she believes.Report

      • Avatar BlaiseP says:

        Hell, I’m not sure either.   Back in the days of the civil rights struggle, Thurgood Marshall’s strategy at NAACP was to quit pressuring Congress to change the laws and instead bring meaningful cases before the courts, I’m thinking about McLaurin v. Oklahoma State Regents as just such an example.

        Thurgood Marshall understood the stakes and bet only on hands he could win.  But the cases Marshall chose were often related to law schools:  Marshall had known discrimination when he applied to law school and one of his first targets was the law school that had turned him down in Murray v. Pearson.

        Marshall assiduously cultivated a friendly relationship with the most onerous and capricious agent of law enforcement at the time, J Edgar Hoover.   Both men understood, all too well, an unenforced law is no law at all.

        Was Marshall wise to accomplish through the courts what might have been done through the Congress?   I can’t say.   But this much seems clear:  law schools have proven historically vulnerable to attack when they’re obliged to eat their own dog food about the niceties of law itself.


    • Avatar Burt Likko says:

      She may well have been; she had a history as an impact litigator, after all. Let’s assume, arguendo, that she did apply to University of Iowa spoiling for this exact lawsuit. So what if she laid a trap? If she did, the University walked — no, ran — right into it. We’re not talking about a deer, responding on instinct here. We’re talking about four dozen lawyers collectively unable to resist the impulse to violate the Constitution becasue of their own political preferences.

      Besides, I can justify passing up the Ave Maria offer to take a shot at Iowa. A tenure-track position at Ave Maria School of Law is simply not as prestigious, and may not have paid nearly as well, as a non-tenure track position at the University of Iowa. And a non-tenure track position at Iowa would have given her a leg up when a tenure track position at Iowa eventually did open up. You or I might not have made that decision, but it’s hardly an irrational decision to have made, especially if she still had opportunities to make a living outside of academia.Report

      • Avatar Koz says:

        +1, especially this part:

        “We’re talking about four dozen lawyers collectively unable to resist the impulse to violate the Constitution becasue of their own political preferences.”

        And I hope this doesn’t spoil the fun for you and Mark, but for me this is exactly why the extralegal dimension to this is so interesting. From our collective perspective, which might be broader than the plaintiff’s, we can’t prevent one or two instigators from trying to play dirty pool, but we can hope there is enough institutional strength to keep them from carrying the day.

        And when they do carry the day, we ought to be able to know who they are and acknowledge them appropriately.Report

  10. Avatar Liberty60 says:

    Not being a lawyer I can only comment as to the politics/ ethics of the case.

    Even speaking as a committed activist for Team Blue, I am with the plaintiff on this one. Our strongest card we play is that we stand for the idea that everyone gets a fair shake, and things like this are Conduct Unbecoming on our side.

    Not to mention the strategic failure of handing Team Red a convenient Victim Card that we will be hearing about for years to come.Report

  11. Avatar Anderson says:

    Anyone know if there’s any way this kind of suit could arise at a *private* law school? I realize section 1983 is primarily used to grant federal protection to those whose rights have been violated by an actor acting under State authority, and my instinct is thus that she could not sue a private law school. Yet Wikipedia says about section 1983, “In some jurisdictions, 1983 has been applied directly to private employers when litigants have sued under this act. It can also be applied in virtually all jurisdictions in a more indirect manner to private employers if they are acting under state or federal authority.” Since many private academic institutions receive government money–in the form of research grants and backhandedly from financial aid–could that give reason for a suit concerning 1st amendment discrimination? Sorry if this is a trite question.Report

    • Avatar Burt Likko says:

      Actually, it’s getting into some interesting legal arcana. I’m aware of 1983 being applied to a private entity in situations where the private entity is acting as a proxy for a state actor — for instance, a private prison, or private security guards hired by the courts to do security screening. There may be other sorts of situations where the private entity is for all practical purposes imbued somehow with state power, but those are the ones I’ve heard of. Never had cause to use that doctrine, myself, and I suspect that it’s somewhat controversial.Report