January 2, 2012
Eighth Circuit on Law School Hiring: The First Amendment and Political Views
As most law professors and hiring committees know, hiring law faculty is a highly subjective endeavor. Many candidates are unsuccessful. For example, Teresa Wagner was not hired to be a full-time Legal Analysis, Writing, and Research instructor at the University of Iowa's College of Law. However, Wagner alleged that she was not hired because of her political beliefs. The Eighth Circuit's opinion in Wagner v. Jones rules that her claim will go forward.
Reversing a district court opinion granting summary judgment to the then-dean, Carolyn Jones, the Eighth Circuit has ruled that there are issues of material fact on the motivation for the failure to hire as well as the personal liability of the dean.Wagner alleges that the failure to hire her violated her First Amendment rights and that she was not hired because she is a Republican who has "worked with the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which advocates for conservative social views." The panel opinion contains much discussion of Wagner's interview process, with relatively innocuous comments about her job talk and qualifications. However, there seem to be a few "smoking guns."
First, the associate dean advised her to conceal the fact that she had interviewed and received an offer from Ave Maria law school because it is "viewed as a conservative school."
Second, there is an email from the same associate dean to the dean which included this passage:
Frankly, one thing that worries me is that some people may be opposed to Teresa [Wagner] serving in any role in part at least because they so despise her politics (and especially her activism about it). I hate to think that is the case, and I don’t actually think that, but I’m worried that I may be missing something.
Third, a faculty member who opposed hiring her - - - characterized as "the primary, vocal opponent" - - - "had clerked for Justice Blackmun during the time Roe v. Wade was written, has written tributes to Justice Blackmun and his abortion jurisprudence, and has published legal articles advocating a pro-choice viewpoint on abortion."
And fourth, as the panel opinion states:
The law school faculty at the University is viewed as being liberal. Only one out of 50 professors is a registered Republican.
Indeed, the panel opinion finds that the dean is not protected by qualified immunity because
Dean Jones had several indications that Wagner’s political beliefs and associations may have played a role in the faculty’s hiring decisions. Only one law school faculty member out of 50 is a registered Republican. As dean, Dean Jones generally should have been aware of her faculty’s point of view and its political tendencies.
While the associate dean's statement and email might be probative, the Eighth Circuit's opinion seems to make much out of the professional and political affiliations of the faculty members, essentially assuming they would be biased.
If the case goes to trial, it is certainly one to be watched. As it stands, the Eighth Circuit opinion is worth a read by deans and members of faculty search committees.
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