A Blackballed Conservative Gets Her Day in Court

Peter Wood

At the end of December, the 8th Circuit Court of Appeals issued an opinion in Teresa Wagner v. Carolyn Jones. The case involves a claim by Ms. Wagner that the University of Iowa’s College of Law had illegally discriminated against her in 2006 in violation of First Amendment rights when it turned her down for an appointment as a full-time instructional position in legal writing. The 8th Circuit overturned a district court ruling of “summary judgment” against Wagner, and allowed her claim to proceed to jury trial.

The Chronicle of Higher Education has followed the story since January 2009 and mentioned the appellate decision here, reversing an earlier declaration that “Court Clears U. of Iowa Dean of Political Bias in Hiring.” My fellow Chronicle blogger (and NAS board member) Mark Bauerlein commented on the case as well, linking the New York Times’ account. But unless you have been following law blogs and conservative sites, you probably haven’t heard much. KC Johnson offers a succinct summary in “More Ideological Discrimination at the University of Iowa?” And Walter Olson makes an astute comment in “Those Pesky Conservatives Just Aren’t Bright Enough.”

My colleague Ashley Thorne and I wrote about Wagner’s complaint in 2010, in “They So Despise Her Politics.” The title is a quotation from an e-mail to Dean Jones from a faculty member, and is perhaps the smoking gun of the case. The writer declared:

Frankly, one thing that worries me is that some people may be opposed to Teresa 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 it is, but I’m worried that I may be missing something.

The language is coy, but Dean Jones got the message and turned down the appointment of the school’s top-ranked candidate.

My aim here is to provide a somewhat more thorough account of the case than has been so far reported. I have been following it closely since the beginning and have corresponded with Ms. Wagner, but here I rely mostly on the text of the 8th Circuit’s opinion.

The lower court took a look at the documentary record and said, in essence, there is no plausible evidence at all that dislike of Wagner’s political views led to the decision not to hire her. The 8th Circuit’s reversal focused on the lower court having granted Dean Jones “qualified immunity” in her “individual capacity.” One might have to enroll in law school to figure out what that means, but the rest of the decision is pretty clear. The court observed that “Wagner, a registered Republican, has actively advocated for socially conservative causes,” most notably in opposition to abortion. She is a 1993 graduate of University of Iowa College of Law who after years of working in Washington D.C. and teaching legal writing at George Mason School of Law, returned to Iowa in 2006 and accepted a part-time position as associate director of the university’s writing center. There she learned about an opening in her area of expertise at the College of Law, and she applied.

She was told in writing that—as the Court puts it—“her application was well received by the Committee” and she was invited for an interview. The interview went well and afterwards she received a follow-up e-mail saying, “we’re very enthusiastic about your candidacy for a full-time position in the LAWR Program.” The search committee then picked her as one of five candidates from the fifty applicants to be invited back for a second more extensive interview. In the event, only three candidates were interviewed this way.

The next step offered Wagner her first glimpse that something was amiss with the process. Wagner met with an associate dean prior to the full-day interview. Wagner told the dean that she had previously been through a similar interview. The dean asked where:

…and Wagner told him Ave Maria School of Law, where she received an offer for a tenure-track law school teaching position.  Associate Dean Carlson suggested to Wagner that she conceal this fact during the interview process because Ave Maria is viewed as a conservative school.

The full-day interview proceeded and Wagner did well. The Court documents seven of the interviewers who were favorably impressed, including three who were decided in favoring of hiring her. The student comments were similarly favorable, and ranked her as the best candidate.

But the very next day the faculty voted to offer the position to another candidate—an adjunct instructor who “had never practiced law, had no legal publications, and had no prior successful teaching experience.” This other candidate had, however, “portrayed himself as a liberal.”

What happened at that faculty meeting? We don’t know for sure. According to the Court opinion, “Wagner learned from Associate Dean Carlson” that one professor, Randall Bezanson, “had been the primary, vocal opponent” of hiring Wagner. Professor Bezanson had possible motive. As the 8th Circuit puts it, he “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. In contrast, Wagner’s legal career has focused, in part, on protesting abortion and the cases that established a constitutional right to abortion.”

When asked under oath about what he had done, Professor Bezanson “could not recall whether Wagner’s politics were discussed before the faculty voted.”

The court’s review of the case continues into several further episodes in which Wagner applied for other positions in the College of Law and was treated even more dismissively, but the details are only more of the same.

What really happened here?

The Appeal Court is not about to say. Wagner herself is convinced that Professor Bezanson, acting on political animus, poisoned the faculty against her appointment, and that Dean Jones knowingly capitulated. But the Court’s business was simply to determine if there was enough evidence that Dean Jones acted improperly that the matter should go to trial. It found the evidence on that score compelling. “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.”

And even if she had somehow been oblivious to those tendencies, Dean Jones was warned separately by two associate deans of what was happening. Regardless, she “took no steps to ensure that the faculty did not take Wagner’s political association and beliefs into consideration.”

The Appeals Court set aside the lower court’s ruling that the dean was just a functionary who “exercised no independent personal judgment in making hiring decisions.” And Dean Jones herself admitted she had the power to decline the faculty’s recommendation.

The Appeals Court thus ordered the case to go to trial. That doesn’t mean an end to the legal wrangling. Dean Jones’ lawyers petitioned for a en banc review of the Appeals Court’s December decision. The Eighth Circuit turned that appeal down on February 8. In principle, Dean Jones could now appeal to the U.S. Supreme Court.  It would seem highly unlikely that the Supreme Court would find an issue here, but Jones could add months to the process just by filing.

I am no lawyer, but I have to wonder whether the University of Iowa is thinking about an out-of-court settlement at this stage. If it does make Wagner an offer and she accepts it, I’ll be a little disappointed. We have seldom had so clear a case of a conservative academic being steamrolled by a politically correct faculty. It would be good for the country to have it presented in its entirety.

The University of Iowa College of Law faculty seems to have felt completely confident in its ability to get away with treating a highly qualified conservative candidate with illegal prejudice. Keep the case in mind the next time you hear someone explain that the reason there are so few conservatives in academe is that conservatives (a) lack the intellectual ability to compete for openings, (b) are more interested in pursuing careers in the for-profit sector, or (c) just don’t apply. Teresa Wagner was by a substantial margin the best candidate for the position she applied for. She was turned down because of her political views. And I expect that if the case proceeds to trial, a jury will agree.

This article originally appeared in the Chronicle of Higher Education's Innovations blog on February 16, 2012. 

Photo: New York Times 

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