Here is a story in the New York Times about a case that may have far-reaching implications for higher education. It could also form a significant chapter in the chronicle of political bias in higher education, an issue that has diminished in recent years (for various reasons).
The Times piece opens: “Teresa R. Wagner is a conservative Republican who wants to teach law. Her politics may have hurt her career.” Wagner alleges that the University of Iowa Law School rejected her job application because of her politics, which are vocally social conservative. The story quotes a 2007 letter from the associate dean to the dean stating, ““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).”
The latest episode is this: “Late last month, a unanimous three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that her case should go to trial, saying she had presented enough evidence to suggest 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.’”
I don’t know the details of the case at all, but Iowa does include “associational preference” in its statement of non-discrimination policy. If the case does go to court, expect the plaintiff, too, to invoke Iowa’s (and every other university’s) commitment to diversity and the free exchange of ideas, not to mention the gross imbalance among law faculty of ideological perspective. (The Des Moines Register has found that there were only two Republicans in a faculty of 50.) The near-uniformity of political identity (on that crude measure of Republican-Democrat) won’t look good in court, and a flagship public institution such as Iowa always feels pressure t0 be somewhat proportionally representative of the population of the state.
That leads to the danger, of course, of “disparate outcomes” arguments, and Walter Olson offers some cautionary words about the courts as a solution to ideological narrowness in campus settings. He writes here:
“I agree that there is a particular logic in asking state-run universities to be open to a plurality of legitimate viewpoints. Even so — for reasons I pursued in more detail in an earlier book about employment law, The Excuse Factory – I have severe doubts that lawsuits by disappointed job applicants are really a good way to improve fairness in the workplace and counteract arbitrariness in hiring decisions. Such lawsuits seem equally likely to provide a legal weapon to contentious applicants whether or not their talents are clearly superior, invite outside arbiters to apply subjective standards of their own, and take a great toll in collegiality, time, expense and emotional wear and tear, all while encouraging defensive employment practices that help no one. Conservatives in particular should remember that the ideological shoe will sometimes be on a different foot; it is by no means unheard-of for professors on the far left to cry bias (and file complaints) when their bids for tenure fall short.”
Perhaps the future of the case will come down to the actual, factual, professional qualifications of Teresa Wagner. If they are strong, I predict the case will never go to court. Universities don’t like to have professors and administrators on the witness stand, and if their judgment of Wagner’s candidacy hints even slightly of bias or just plain snootiness, the people sitting in judgment won’t like it. Added to that, universities don’t want the ideological make-up of their professors to undergo too much sunlight. The headlines won’t look good. Whether the causes are legitimate or not, when people see that the political identity of the professorate so grossly mismatches the political identity of Iowans, not only juries and judges but also the court of public opinion will render a verdict.
