Bench Memos

Conservatives Need Not Apply

The New York Times’s Adam Liptak reports on an Eighth Circuit decision reinstating a lawsuit by Teresa Wagner, now a part-time employee at the University of Iowa College of Law, alleging that the law school violated her First Amendment right to political belief and association by passing her over for a full time position as a Legal Analysis, Writing, and Research (LAWR) instructor at the law school. Prior to her applying to the law school, Ms. Wagner, a registered Republican, had worked at two socially conservative organizations, the Family Research Council and the National Right to Life Committee

Ryan Koopmans picked up on this story on December 28, over at Iowa’s Appellate Blog.

The law suit is a 42 U.S.C. § 1983 suit against the law school’s then dean, Carolyn Jones, under a law that allows individuals to sue state actors for alleged constitutional violations. As dean of a state law school, Dean Jones is a state actor, subject to different constitutional constraints than she would be as a dean of a private law school. 

Assuming that the Eighth Circuit’s interpretation of the law is correct, at first glance, the facts of the case look particularly bad for the law school.  

The Eighth Circuit’s decision provides the factual background for the case. Some of the more salient facts in favor of Ms. Wagner include the following: 

  • Ms. Wagner had teaching experience, teaching “Advanced Legal Research, Writing & Analysis at George Mason University School of Law  in Washington, D.C. for two years.

  • “There is indication that she interviewed well.  The University’s Faculty Appointments Committee chair, Mark Janis,  informed her that “the Committee  ‘enjoyed meeting with you [during her second interview]  and we’re very enthusiastic about your candidacy for a full-time position in the LAWR Program.’”  Ms. Wagner also received positive feedback from students and faculty members.

  • Then-Associate  Dean John Carlson told her to conceal her interview with Ave Maria School of Law, because it was a conservative school. He later became concerned that politics may have played a role in the law school’s refusing to hire Ms. Wagner.

  • Despite there being two  full-time LAWR slots available, the school only hired Matt Williamson, an adjunct LAWR instructor who “had never practiced law, had no legal publications, and had no prior successful teaching experience.”  But, Mr. Williamson was a liberal. 

  • Ms. Wagner was also, without explanation, passed up for a part-time adjunct position, in favor of two candidates without prior teaching experience, neither of whom could have been considered for a full-time position.

In acknowledging Ms. Wagner’s potential case, conservatives aren’t hypocritically advocating for a different kind of diversity. They are protesting outright discrimination. There are arguably reasonable instances where educational institutions are justified in taking a candidate’s political views into account when hiring faculty. This is most certainly not one of those instances. 

Regardless of how a jury eventually evaluates Ms. Wagner’s claims, the case speaks to a broader point. The far Left weaponizes “diversity” when it upholds their purposes but jettisons that commitment when it does not suit their desired result. Purporting to favor intellectual diversity, they also exclude conservative world views, laying out the contours of acceptable intellectual thoughts and political activities. This problem will only become larger in the future, so conservatives must be vigilant in rooting out this increasingly outright discrimination. 

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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