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Wednesday August 5th 2015

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S.E.M., Vol. 1, No. 7
Federalist 69 - by Alexander Hamilton. 1. What are the chief characters in regards to the President as outlined in the proposed Constitution? 2. Why does Hamilton believe the term of office for a President should be longer than three years? 3. What was the term of office for the king of England and what, in your opinion, is the potential for abuse in such a term? Would the term of office of the king of England present any advantages - in the Founders experience and in your opinion - over over the new American system? Read all of the questions and post your response at our new resource Self-Educated Man

Jurors: Law School Discriminated Against Teresa Wagner

ANDREW KLOSTER, THEFIRE.ORG

Last week, The Des Moines Register reported that jurors in the Teresa Wagner case believe that the University of Iowa College of Law “illegally denied a promotion to a conservative Republican because of her politics.” The story has been picked up by various legal blogs. At FIRE, we have covered the Wagner case before.

The most interesting result of the jury verdict last week is that the jury was convinced Wagner was discriminated against due to her political beliefs but believed it was the University of Iowa College of Law itself, and not the dean, that was responsible for the discrimination. As reported:

Jurors interviewed by the Register said that they didn’t accept the university’s explanation and that they believed Wagner, who still works part time in the U of I’s Law Writing Resource Center, had been discriminated against.

However, four jurors told the Register in interviews since the trial ended that they also believed that the school itself — not the former law school dean, Carolyn Jones — should have been named as the responsible party in the lawsuit. There was disagreement within the jury as to whether Jones had the explicit ability to hire Wagner without the vote of the faculty, jurors told the Register.

The result of the jury’s puzzlement on the matter: A mistrial was declared on the allegation that Wagner’s equal protection rights had been violated, and a not-guilty verdict was returned on the count against the law school’s former dean for political discrimination.

“She was discriminated against, but you don’t go against the dean,” said juror Don Mayes, a registered Democrat from Davenport. “The dean can only hire if the faculty approves you, and the faculty denied it, so the dean had no say-so about it.”

This is very interesting because it highlights a remedial gap for faculty victims of ideological discrimination. Title VII of the federal Civil Rights Act of 1964 permits lawsuits against state actors, including state universities, that discriminate on the basis of “race, color, religion, sex or national origin,” but does not protect victims of ideological or political discrimination, such as Teresa Wagner. Consequently, Wagner’s lawsuit was based on Section 1983 of the Civil Rights Act of 1871, which only permits monetary damages against state actors, such as universities, to the extent that the state government consents. Since Iowa has not waived sovereign immunity in this context, Wagner was left with no choice but to sue Dean Jones personally.

There is some evidence that the jurors got it right. Dean Jones might not have had the discretion to hire Wagner over the illegal objections of a discriminatory faculty hiring committee; if so, she should not be held personally liable for political discrimination. More likely, the “bad actors” were infesting the hiring committee itself. As the Eighth Circuit noted (PDF) in this case, the most vocal objections to Wagner’s candidacy came from Randall P. Bezanson, who clerked for the late Supreme Court Justice Blackmun in the 1972–73 term when Blackmun penned the majority in the case of Roe v. Wade. As the Eighth Circuit noted, Bezanson’s abortion advocacy and Wagner’s anti-abortion advocacy were naturally at odds.

This troubling case raises other issues as well. As Professor Jonathan Adler notes over at the Volokh Conspiracy, the University of Iowa College of Law operations manual finds that “the primary rationale for tenure is that it is essential to the creation and maintenance of an atmosphere which encourages the free exchange of ideas so necessary to educational vitality.”


Andrew Kloster is a graduate of the University of Miami where as a freshman, he joined (and later led) a new student group that, thanks to FIRE, had just been allowed on campus. At New York University School of Law, Andrew was the Senior Articles Editor for the Journal of Law and Liberty and head of the NYU Law chapter of the Federalist Society. Also while at law school, Andrew worked for the U.S. Attorneys Offices in Chicago (N.D.IL.) and New York (S.D.N.Y.), where he was involved in several First and Fourth Amendment cases. Prior to working at FIRE, Andrew worked for a human rights NGO at the United Nations and on Capitol Hill.


Used with the permission of the Foundation for Individual Rights in Education.