Wednesday, December 28, 2011
Potentially Important Law Faculty Hiring Decision...
I'm not a First Amendment scholar, nor am I an employment discrimination scholar. I did, however, go through a hiring process twice, and this decision by the Eighth Circuit surprised the heck out of me. The gist of the opinion is that a jury must decide if a professor who was not hired at a public law school was discriminated against in violation of Section 1983. The allegation, quite simply, is that she was conservative and a liberal faculty (or more specifically, the dean following the recommendation of the faculty) refused to hire her.
The court held that this is a legally cognizable injury, and that a jury has to decide whether she wouldn't have been hired anyway.
For those of you on the market this year (or thinking about it), the case is also an insightful view into the black box of academic hiring. It shows how mixed signals can occur, and how uniformly positive feedback can still not lead to getting hired for all sorts of reasons outside of the candidates' control. I won't comment on the reasoning or facts in this case, because I just don't know them. That is, as they say, up to the jury now.
One final point - there is a key faculty governance nugget buried in this case. One factual question was whether the dean always followed faculty recommendations, and/or whether the dean must. While most deans follow almost all faculty hiring recommendations, they usually (technically) don't have to. One issue in this case is that no such policy was in writing. After this case, deans might want to put such a policy in writing for self protection, but maybe the deans (or university provosts and presidents) won't want discretion so limited.
H/T How Appealing
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Michael, I also posted a comment on Volokh about this, but I think there is no possible reason that the law school would want to put such a policy in writing. Even if the discrimination occurs because the faculty was motivated by bias, the law school would still be responsible for the actions of the faculty, so the written policy reducing the Dean's discretion would not affect the law school's liability.
The issue in the case is only whether the Dean could be held personally liable. The court's theory is that the Dean is personally responsible for the discrimination because she could have given the faculty the finger and didn't, and so any Dean that chooses not to spark a faculty revolt is a bigot or worse. I obviously find that absurd, but that is somewhat beside the point. The point is that the only people who would benefit from adopting a written policy under this decision are Deans themselves (who would be insulated from liability if they truly had no discretion), and you are right that Deans are unlikely to come out that way in practice; but it is incorrect to suggest that anyone else might benefit from a written policy.
Posted by: TJ | Dec 28, 2011 6:26:43 PM
TJ - a good point, and I've edited to clarify. That said, this complaint was against her only, and she would be indemnified (probably), so the law school might have wanted such a policy here.
I don't know how 1983 works - whether it is only against the individuals, or whether there is vicarious or other liability of the whole organization.
Posted by: Michael Risch | Dec 28, 2011 6:36:09 PM
The reality is that we highly regulate hiring decisions. And it does make sense that if you don't get a job because of your political beliefs, then it would surpress those (1st amendment) expressions.
Posted by: George E. Bourguignon, Jr. | Dec 28, 2011 8:45:29 PM
It's too bad 1983 doesn't allow her to name the bigoted falcuty member who blackballed her as the named plaintiff, but as the law stands she has to sue the ultimate decision maker. In any event, I'm sure the law school is indemnifying the Dean.
Posted by: Brad | Dec 28, 2011 8:46:53 PM
There is no vicarious liability under s. 1983. In any event, Iowa is a state institution and the state can't be sued or held liable.
Posted by: Howard Wasserman | Dec 29, 2011 9:03:21 AM
That's what I thought, which means that the state might want to limit discretion to avoid having to indemnify, and deans might want to limit discretion to avoid being on the hook. But probably not.
Posted by: Michael Risch | Dec 29, 2011 9:05:14 AM
Reading the decision, there are two additional interesting points.
(1) The court suggests that the Dean should have known and should have implemented procedures to mitigate political discrimination by the faculty.
(2) The court suggests that the faculty panel itself could have violated the First Amendment. Thus, faculty on hiring panels at public universities should be careful not to discriminate against candidates based on their politics, or that faculty member could be sued in his / her personal capacity.
So in response to Brad, on point (2) there is language to suggest that she COULD sue that guy.
Personally, I think the facts are so unique here--- it's worth a read.
Posted by: AndyK | Dec 29, 2011 1:42:28 PM
I don't actually think the presence or absence of discretion is all that relevant here. From my readings of the brief and the opinion, it came into the case as part of the defendant's qualified immunity argument (i.e., a reasonable Dean would feel compelled not to hire the applicant based on the longstanding practice of hiring only those candidates recommended by the faculty). But in terms of whether there was a violation of the Constitution, the presence or absence of discretion seems irrelevant -- that is, if a police officer were ordered by a superior to beat a particular suspect, or arrest someone because of his or her race, it would be no defense to say that the police officer is immune from liability because he was ordered to do so by his superior. And a supervisor can certainly be held liable when her own conduct ratifies or effectuates unconstitutional conduct by subordinates. Whether a Dean is considered the supervisor of the faculty or subordinate to the faculty (and I think the plaintiff here is pursuing the former theory by arguing that the Dean is the ultimate decision-maker), if the Dean knows that the faculty is behaving unconstitutionally and takes no steps to correct the situation, the Eighth Circuit is saying that the Dean can be held liable under Section 1983. This is pretty well-trod Section 1983 ground.
It is true that the Court has always said that qualified immunity is only available to defendants who exercise discretion, but this is generally to distinguish between discretionary functions (for which there is QI) and "special functions" for which absolute immunity may apply.
And discretion or not discretion, the school is almost certainly going to indemnify the Dean. In most Section 1983 cases, the State or municipality ends up indemnifying the individual defendant, although often exceptions are made for punitive damages. So although the State cannot be sued directly, it will end up paying if there is a plaintiff's judgment or settlement here.
Posted by: Alex Reinert | Dec 29, 2011 4:48:10 PM
So I guess the argument is that states would have the incentive to limit Decanal discretion, with the consequence of allocating the decision entirely to the faculty, on the theory that Deans are more easily sued in their individual capacity and faculty members are harder to sue under 1983 (though, as AndyK notes, the opinion seems to suggest that individual faculty could be sued), and on the assumption that the state would then indemnify. Perhaps, but it does seem a stretch to me.
Posted by: TJ | Dec 30, 2011 1:02:33 AM
If the plaintiff's story is to be believed - and the Eighth Circuit indicates it at least deserves presentation to a jury - what supposedly happened here is a disgrace. I don't agree with her politics, but if you substitute your own political preferences for hers, and visualize a politically intolerant faculty member blocking an appointment based on unpopular but not altogether wacky or fundamentally offensive beliefs, it smacks of something rather like McCarthyism. Of course, the "if" at the beginning is a rather big if, and getting a day in court is in no way the same as proving one's case.
Posted by: Anono | Dec 30, 2011 11:11:02 AM
Another lesson here is to limit the number of faculty who communicate with an applicant about the hiring process. An off-hand comment by one faculty member to a candidate about what the faculty member perceives to be a problem with the candidate could lead to and provide support for a lawsuit.
Posted by: AnonLawProf | Dec 30, 2011 2:53:39 PM
To present a different side of the story, I'm a candidate on the market this year, with a fairly clear political bias albeit on the liberal side of the divide (I have a career background similar in some ways to the plaintiff, but obviously at organizations other than the National Right to Life Committee), and was repeatedly told that I needed to downplay my political activities from the past and combat the potential belief that I would come into the Academy and simply be a partisan hack. During interviews (particularly during callbacks), I frequently received questions along the lines of "can you be open minded?" and "how can we be reassured that you won't simply come in and try to advance a political agenda?".
The concern that these schools felt, which I definitely felt was a handicap to my candidacy, did not appear to be related to the CONTENT of my political beliefs, but rather related to a belief that academia requires a very intellectual, thoughtful, and holistic approach that may be quite inconsistent with political work.
For what it's worth, I did callbacks at a couple of schools where I received many more than 7 compliments (the number the plaintiff received) from faculty on an "excellent" job talk, had high expectations for a job offer based on communications I received from individual faculty members, had concerns raised about my political past, and did not ultimately receive an offer. At no point in time did I contemplate suing anyone.
Finally, if I were advising a candidate interviewing at U.Iowa (or any equivalently situated law school), I would probably also tell them to quash discussion of a past teaching position at Ave Maria, and not for political reasons, but simply because law school faculty tend to be elitists. Similarly, if I were advising a potential law student looking to apply to U. Iowa, I would probably tell them to try to downplay the fact that they previously attended Ave Maria for 2 years before leaving.
Posted by: Anono2 | Dec 31, 2011 8:16:59 AM
You might be interested in this editorial from the Des Moines Register, especially the last two sentences, if you're interested in public perception of faculty governance issues: http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2012301110038
Posted by: anon | Jan 12, 2012 7:16:37 AM