On political ideology in lawprof hiring

December 29th, 2011

The Eighth Circuit reversed a grant of summary judgment of qualified immunity to the Dean of the Iowa College of Law in a case brought by a candidate who was denied a Legal Writing position, purportedly based on her conservative ideology. The opinion is here.

Here are some of the salient facts:

In January of 2007, Wagner met with then-Associate Dean John Carlson3 to discuss her full-day interview, which was scheduled for Wednesday, January 24, 2007. Associate Dean Carlson explained the interview process. Wagner informed Associate Dean Carlson that she had previously gone through a similar interview process. Associate Dean Carlson 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.

Wagner also informally met with prior Associate Dean Eric Andersen and asked him if the faculty would hold her conservative political views against her in the hiring process. Associate Dean Andersen answered that he did not know. Associate Dean Andersen spoke with Dean Jones before Wagner’s full-day interview and relayed Wagner’s concerns that her political beliefs might be a factor in the hiring decision.

On January 25, 2007, the faculty discussed the applicants with Dean Jones present. The faculty voted to recommend that Dean Jones only hire Williamson, even though Dean Jones had informed the faculty that she could hire two full-time LAWR instructors. Williamson was an adjunct LAWR instructor, had never practiced law, had no legal publications, and had no prior successful teaching experience. Williamson portrayed himself as a liberal to other employees at the Writing Center. During the January 25 meeting, the faculty did not consider Wagner for an adjunct position.

On January 26, 2007, Janis informed Wagner via e-mail that the University would not be hiring her. Wagner learned from Associate Dean Carlson on January 29, 2007, that Professor Bezanson had been the primary, vocal opponent to hiring her. In his deposition, Professor Bezanson could not recall whether Wagner’s politics were discussed before the faculty voted, but he remembers some person mentioning that Wagner was conservative during the meeting. Professor Bezanson testified that Wagner’s politics were possibly discussed after the faculty voted not to hire Wagner. Professor Bezanson 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.

On January 26, 2007, at 4:55 p.m., Associate Dean Carlson sent Dean Jones an e-mail stating that Wagner had expressed an interest in the summer LAWR program. Associate Dean Carlson questioned whether Wagner’s politics had played a role in the faculty’s hiring decision and whether her politics would play a role in future hiring decisions:

I don’t know whether you have yet spoken to Teresa about the outcome of the faculty meeting. If not, there is something you should know–yesterday I received an email from Teresa (which I only just read) in which she indicated a willingness to teach the LAWR program in the summer. I don’t know where Matt Williamson stands on this (he has not replied to my email inviting him to speak with me about summer teaching), and it may emerge that we would like to use Teresa during the summer. The problem is that I don’t understand the significance of the faculty’s unwillingness to vote on approving Teresa as an Adjunct. It seemed that there might be an undercurrent of opposition even to that.

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 that, but I’m worried that I may be missing something.

In any event, I think that we need to move fairly soon on this if we expect to have Teresa available as an adjunct either this summer or next fall. I believe that she may begin looking for more permanent and substantial work outside the College of Law after she learns that she will not receive an LAWR position.

On March 22, 2007, the faculty voted not to hire Wagner as a part-time adjunct LAWR instructor and provided no explanation for their decision. Associate Dean Carlson informed Wagner on March 23, 2007, that she had been rejected as an adjunct instructor and that Professor Bezanson had been the primary opponent to her appointment. Associate Dean Carlson also told Wagner that a minority of faculty members can block a vote, and he suggested that she not apply again for an LAWR position.

Instead of hiring Wagner and pursuant to the faculty’s recommendations, Dean Jones hired Steve Moeller and Dawn Anderson as part-time adjuncts. Both had served as adjunct instructors during the fall 2006 semester. Neither Moeller nor Dawn Anderson had had prior law school teaching experience. In fact, Moeller, who was Professor Bezanson’s research assistant, had just graduated from law school. Because they both had received low student evaluation scores for the fall 2006 semester–in the low twos on a scale of one to five–neither had been considered qualified for the full- time position.

In December of 2008, Wagner had a discussion with Professor David Baldus. Wagner worked with Baldus and assisted him in editing his legal publications. Baldus told Wagner that he was surprised she had not been hired as an adjunct because adjunct candidates usually come recommended to the faculty from the Committee. He had never heard of the faculty rejecting a candidate who had been recommended by the Committee.

Wagner applied, and was rejected, four additional times for an adjunct position: January 2007, March 2007, June 2008, and January 2009. The University did not grant Wagner an interview for any of the adjunct positions.

And some of the analysis section:

The threshold question is whether the facts, taken in the light most favorable to Wagner, show that Dean Jones’s actions violated a constitutional right. Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). Wagner alleges that Dean Jones violated her First Amendment rights of political belief and association when Wagner was not hired for any of the LAWR positions. . . .

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 decision- making” 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).  . . .

If a state actor refuses to hire an individual because of her political associations, then the individual has suffered an adverse employment action. See Rutan, 497 U.S. at 77 (reasoning that the “denial of a state job is a serious deprivation.”). Thus, Wagner suffered an adverse employment action. Furthermore, it is undisputed that none of the positions were policymaking positions.

Next, we examine whether Wagner’s political beliefs and associations were a substantial or motivating factor in Dean Jones’s decision not to hire her. A substantial or motivating factor can be proven through either direct or indirect evidence. Davison, 490 F.3d at 655 n.5. A plaintiff need only prove that the employer’s discriminatory motive played a part in the adverse employment action. See id. at 657 (reasoning that plaintiff presented sufficient evidence for jury to infer that failure to promote was motivated in part by his constitutionally protected activities).

Here are the specific allegations to substantiate the discrimination claim:

Wagner presented evidence that only one out of 50 faculty members at the University is a registered Republican. She, on the other hand, is a registered Republican and a social conservative who has worked for socially conservative organizations.

Prior to her interview, Wagner was warned by Associate Dean Carlson to conceal the fact that she had received a similar tenure-track job offer from Ave Maria School of Law, which was perceived to be a conservative school. Former Associate Dean Andersen told Dean Jones prior to Wagner’s interview that Wagner was concerned that her conservative political views might be held against her during the hiring process.

During the January 25, 2007, faculty meeting, which Dean Jones attended, someone mentioned that Wagner holds conservative beliefs. It is disputed as to

whether this occurred before or after the faculty voted to recommend that Wagner not be hired and that Williamson, a self-portrayed liberal, be hired.

The day after the faculty vote, Associate Dean Carlson sent Dean Jones an e- mail inquiring whether Wagner’s politics had been considered by the faculty when they voted not to hire Wagner.

Even though Wagner was encouraged to and did apply for part-time adjunct positions, Wagner was not given an interview and the faculty voted not to hire her. The two individuals hired for the adjunct positions had less prior teaching experience than Wagner and low student evaluation scores.

When the facts are viewed in their totality with all reasonable inferences being drawn in favor of Wagner, we believe that Wagner has presented sufficient evidence for a fact finder to infer that Dean Jones’s repeated decisions not to hire Wagner were in part motivated by Wagner’s constitutionally protected First Amendment rights of political belief and association.

And the school’s defense:

Dean Jones’s proffered reason for not hiring Wagner for the full-time position was that she always adopts the faculty’s recommendation, and the faculty did not recommend hiring Wagner because Wagner did not understand the analysis portion of the LAWR program. When Professor Steven Burton asked Wagner about the

relationship between teaching legal analysis and legal writing, Dean Jones alleges that Wagner responded it would be the job of doctrinal faculty, not her, to teach legal analysis. In response to follow-up questions about whether Wagner would teach legal analysis, Dean Jones alleges that Wagner continued to state that she would not teach analysis. The faculty’s hiring justification summary noted that they perceived Wagner to be less familiar with the analysis portion of the LAWR program and, as a result, she was viewed less favorably than Williamson.

Dean Jones’s proffered reason for not hiring Wagner for the part-time adjunct positions was that the faculty did not recommend hiring her and she always follows their recommendation. No further explanation was given.

Wagner disputes Dean Jones’s proffered reasons. “In a political discrimination case, the plaintiff may discredit the proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that discrimination was more likely than not a motivating factor.” Padilla-Garcia, 212 F.3d at 77 (citations omitted). “In this way, the burden-shifting mechanism is significantly different from the device used in other employment discrimination contexts, such as Title VII cases, where a plaintiff is required to come forward with affirmative evidence that the defendant’s nondiscriminatory reason is pretextual.” Id. (citations omitted).

Wagner argues that Dean Jones’s proffered reason for not hiring her has no factual basis. Wagner claims that during her interview, Professor Pettys asked her a follow-up question to Professor Burton’s questions about whether analysis or writing was more important. Wagner responded that both were important. When Professor Pettys asked Wagner if she had to choose whether analysis or writing was more important, Wagner responded that it was an unfair question because both were important but, if she had to choose, she would emphasize writing. In her initial interview with the Committee, Wagner states she correctly differentiated between the Writing Center, which focuses on writing, and the LAWR program, which teaches

both writing and analysis. Her job talk notes, the only remaining documentation of the job talk, reference analysis twice. Wagner also maintains she knows analysis is important because she taught legal analysis as an instructor in George Mason’s writing program.

Wagner further contends that all of the contemporaneous documentation from her interview process was positive and recommended that Wagner be hired. Seven professors complimented her on her interview, and her student feedback was more positive than the feedback Williamson received. Wagner received no negative feedback from her interview until February 25, 2007, when she received the faculty’s hiring justification summary.

Moreover, Dean Jones told the faculty that she could hire two full-time LAWR instructors. Only three candidates were granted final interviews for the two positions and the third candidate was widely viewed as unsuccessful. While the hiring justification summary stated that, “Wagner’s on-campus interview was less successful than Mr. Williamson’s,” the faculty provided no reason why they chose to recommend only Williamson to Dean Jones for the two full-time LAWR positions, when they could have recommended both Wagner and Williamson. Additionally, no justification has been provided for the faculty’s failure to recommend Wagner for the multiple part-time adjunct positions for which she has applied. And Wagner has evidence that the faculty has never rejected a candidate who was recommended by the Committee for an adjunct position.

In reviewing the evidence, the district court adopted Dean Jones’s version of the facts and concluded that Wagner failed to meet her burden of proof that Dean Jones failed to hire her based on her political affiliations and beliefs. But on a summary judgment motion, the court must view the facts in the light most favorable to the nonmoving party. Borgman, 646 F.3d at 522. The district court erred in viewing the facts in the light most favorable to Dean Jones and resolving issues of fact in Dean Jones’s favor.

After considering all the evidence, it is apparent that a dispute exists regarding a material issue of fact, namely whether Dean Jones would have made the same hiring decisions in the absence of Wagner’s political affiliations and beliefs. Thus, the facts viewed in the light most favorable to Wagner are sufficient to establish a violation of her First Amendment rights.

This question about what is more important–writing or analysis, seems like such a bullshit question, something to set the person up for a wrong answer.

Was the law clearly established?

Thus, Wagner has met her burden to prove that, at the time the hiring decisions were made, the law was clearly established that an employee seeking employment with the state cannot be denied a job based on her political associations or beliefs unless the position is a policymaking or confidential position. . . .

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.

Associate Dean Andersen contacted Dean Jones before Wagner interviewed for the full-time position and relayed Wagner’s concerns about whether her politics would make it difficult for her to be hired. Dean Jones apparently did nothing to ensure that the faculty did not impermissibly consider Wagner’s politics in making its recommendation as to whom she should hire even though Dean Jones was present for the faculty discussion on January 25, 2007.

After the faculty voted not to recommend Wagner for the full-time position, Associate Dean Carlson sent an e-mail to Dean Jones questioning whether Wagner’s

politics played a role in the faculty’s vote and if Wagner’s politics would play a role in voting on whether she could teach the summer LAWR program or serve as an adjunct. Dean Jones apparently completed no further investigation other than speaking to Associate Dean Carlson. More importantly, Dean Jones took no steps to ensure that the faculty did not take Wagner’s political associations and beliefs into consideration when the faculty voted on whether to recommend her for an adjunct LAWR position. Dean Jones supported Wagner’s serving as an adjunct instructor because she asked Janis to follow up with Wagner to determine whether she was interested in the adjunct position. But Dean Jones refused to hire Wagner and instead relied on the faculty’s recommendations. Dean Jones did not provide Wagner with any explanation as to why she chose not to hire her for any of the adjunct positions. . . .

By her own admission, Dean Jones had the ability to hire someone whom the faculty had not recommended but chose not to do so. Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment. Consequently, Dean Jones has not shown that a reasonable university dean in her position would have believed that failing to hire Wagner was lawful in light of clearly established law.

I could say a lot more about political ideology and the hiring process–especially as a white, male, libertarian who writes on constitutional law with a JD from George Mason–but I won’t. I do intend one day to write something about the hiring process and game theory.