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Monday, January 09, 2012

NYT on the Iowa Discrimination Decision

The New York Times has a piece up on its website about the recent Eighth Circuit decision in the case in which an applicant for a legal writing position charged that she was denied a job at the University of Iowa's law school because of her conservative politics.  Get your danders down; it's not by David Segal.  (Disclosure: I taught there for a semester as a visitor a number of years ago.  I have no personal knowledge of anything having to do with this case.)  It's an interesting story and worth a couple of observations.

First, the article contains this sentence: "Ms. Wagner’s lawyer, Stephen T. Fieweger, said the decision was a victory for an important sort of academic freedom."  I should make clear that if the facts were as alleged and assuming that the plaintiff was passed up only because of her politics, I would disagree strenuously with the law school's decision.  But I'm not sure the lawyer is right; or, to put it differently, I'm not sure what "sort" of academic freedom we're talking about here.  My vision of academic freedom is that it is first and foremost not a matter of legal rights for individuals, but a means of preserving the autonomy of the academy as against improper internal and external influence.  That's not to deny that it may have implications for individual academics, either as a matter of current doctrine or in terms of what I think that doctrine ought to say; just to say that its primary value is the preservation of institutional autonomy.  This decision certainly does not support that "sort" of academic freedom.  Now, academic freedom as a principle within universities, rather than as a legal rule, absolutely suggests (but see below) that decisions ought to be made on a disciplinary basis, not on the basis of extrinsic factors, including politics.  If Iowa failed in this regard, it should be held to task by the academy and the public, vocally and vigorously.  But we can do this while still worrying about the import of this legal decision.

I should add that the still-dominant view of academic freedom, whether as a legal value or as an institutional principle within universities, is that hiring decisions should be made free of political and similar considerations.  I personally favor a little more pluralism than that: I think that given the virtually uncountable number of universities in the United States, there is room for more than one vision of a particular university's mission, and in some cases that can include things like religiously affiliated schools, and schools that have a particular political orientation.  Mine is probably a minority view: there are many people who think no universities should be political at all, and more than a few who believe all universities should be political (although usually they think all universities should share the same politics).  There are fewer people who believe that academic freedom is capacious enough to contain some variety in university missions.  There is room for debate over these issues!  But this should be an intramural debate, or an extramural one to the extent that it involves public criticism; it generally should not involve the courts, whose primary job should be to maintain the institutional autonomy of the university rather than to police it according to their own fixed, and often stagnant, vision of what academic freedom means.  On that view, the Eighth Circuit opinion can be cause for some alarm even for those who would wholly disagree with the law school's decision here, if it is as alleged.

It's worth noting that Walter Olson, who is a conservative critic of universities, makes something of the same point in the story: "'I have serious misgivings about asking the courts to fix this through lawsuits,' Mr. Olson said. 'It threatens to intrude on collegiality, empower some with sharp elbows to sue their way into faculty jobs, invite judges into making subjective calls of their own which may reflect their assumptions and biases, all while costing a lot of money and grief.'"  Olson nonetheless can't resist adding: "'Law faculties at Iowa and elsewhere have been enthusiastic advocates of wider liability for other employers that get sued. They’re not really going to ask for an exemption for themselves, are they?'"  Well, yes, many faculties have taken that view.  But not everyone agrees.  

Finally, I should note a telling point here.  The decision emphasizes, in accordance with the politically neutral vision of academic freedom, that the whole point is that, as a legal writing instructor, the plaintiff's politics should have been irrelevant.  But in the Times story, the plaintiff's lawyer complains that the law school "espouse[s] cultural diversity but won't consider the conservative viewpoint."  "Ms. Wagner would have added some balance, her lawyer said," the story continues, leading to this quote: "'My client is an ideologue,' Mr. Fieweger said. "'She does believe in conservative values.'"  So presumably Mr. Fieweger thinks that universities and law schools, rather than holding politics aside, should consider applicants' ideologies, and that his client's politics would have influenced her job as a legal writing instructor.  That argument is certainly inconsistent with what the Eighth Circuit itself said.  And once you make it, I think it's much harder to argue that there is no room within the academy for predominantly liberal or conservative faculties.  On the other hand--in another nice illustration of the ways in which the judicial concept of academic freedom has moved over time from cases like Sweezy to cases like Grutter--Fieweger has just made a nice argument for race-, gender-, sexual orientation-, and etc.-conscious hiring in law schools and elsewhere. 


Posted by Paul Horwitz on January 9, 2012 at 02:36 PM in Paul Horwitz | Permalink


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The Eighth Circuit has not hesitated to intervene in law schools. In Wishnatsky v. Rovner, 433 F.3d 608 (2006), the court ruled that the plaintiff's rights were violated when the University of North Dakota Law School's legal clinic declined to represent him, allegedly because of his political views.

Posted by: Steven Lubet | Jan 9, 2012 4:07:56 PM

It's one thing to say that individual universities should be able to self-identify as conservative or liberal; it's another to say that public universities should be able to do so. The Eighth Circuit, after all, didn't rule for Wagner in order to vindicate its vision of academic freedom (stale or otherwise); it did so on the basis of case law about what governments can and can't do in their hiring. So I think your argument needs to be not only that universities should be able to make these hiring choices, but that the "university" in "public university" trumps the "public." (And surely you aren't saying the courts' "primary job should be to maintain the institutional autonomy of the university"; if this were a case in which the university were asserting academic freedom in order to discriminate on racial or gender grounds, we'd all agree that the court should reject that institutional autonomy. Right?)

Posted by: Jon Weinberg | Jan 9, 2012 11:51:48 PM

By explicitly stating that she's a biased ideologue when it comes to the law, Ms. Wagner has made that part of her hiring application and grounds for examination.

Posted by: Walter Lantz | Jan 10, 2012 6:34:31 AM

Walter, I haven't read the briefs in the case, but the opinion certainly does not suggest that Wagner suggested that she promoted her candidacy as a "biased ideologue" or advanced that point before the courts -- quite the contrary, actually. The statement I gave was in a press piece after the opinion was issued. My point is that it is inconsistent with the actual opinion, although consistent with diversity-conscious, rather than pure disciplinary merit-focused, hiring--not that Wagner got what she deserved or something like that.

I appreciate Steve's add-on. And thanks for an interesting and, from my perspective, quite difficult set of questions and issues, Jon. The principal part of my answer is at least seemingly at odds with current doctrine (although not half as at odds as one might initially suppose): namely, that I do believe the public/private distinction is less important here than the identification of the university as an institution governed by a particular set of practices and norms that are more salient than its public or private status. So, in short, yes to your first point; again, I recognize the tension with current law in theory, but in practice I would argue that courts regularly already treat universities, public or private, as distinct from many other government actors. Second, I agree that that is likely what would happen in such a case, although even there it would still involve an interaction with university disciplinary standards in the decision-making process to which some deference would be given. But I do think my broader approach is in tension with some existing discrimination doctrine. I own up to that, with a measure of discomfort and resolve, and try to explore it in my forthcoming book on First Amendment institutions.

Posted by: Paul Horwitz | Jan 10, 2012 7:58:02 AM

If you read the briefs you would note that her primary opponent (in fact the only opponent noted by the court documents) was a pro-choice advocate who was clerking for Blackmun when he wrote Roe.

In any case, I strongly disagree with this point about academic freedom: "its primary value is the preservation of institutional autonomy." In terms of "the law" that is obviously correct. Its primary justification IN THE LAW has been institutional autonomy.

But that was prior to notions of "capture." To put McGinnis another way: the academy has been "captured." Whether this is a good or bad thing, I don't know, but I DO know that it has an effect on the scholarship and teaching coming OUT of the academy. This capture might even mean that the legal materials underdetermine the legal arguments and teaching coming out of the academy. If this were the case, "capture" by leftists of the academy would represent allegiance, conscious or unconscious, to things other than "the law."

Thus, knowing what we know about capture now, it might be that the only way to preserve institutional autonomy is to break the backs of a blacklisting faction of old guard leftists that promote teaching positions, clerkships, and jobs for those that more closely align with their ideology.

Posted by: AndyK | Jan 10, 2012 9:34:12 AM

Andy, thanks for your comment. I would say, strictly based on my own experience, that blacklisting factions of old guard leftists are a relatively small minority on the faculties I've dealt with, and while a small faculty minority can sometimes be a powerful vetogate, they have had little power in my own experience. I do think logrolling, mentoring, narrow credentialism, and similar phenomena are problems in hiring, and that they can often enhance the ability (with or without the intent) to favor one's own political confreres; and I also think that, whether there has been capture or not, there can be problems in hiring with those who unconsciously treat their own views as a default and thus put those bearing different views and credentials to a higher burden of proof. I would add two other remarks: 1) Even if "breaking the backs" of some cadre or other is warranted, violent language aside, that does not answer whether it should be accomplished through a more insistent focus on disciplinary standards, by a tit-for-tat focus on ideology, or by trying to ensure greater pluralism among rather than within particular law schools. 2) None of this answers whether the courts or the university are the proper forum for either the debate or the solution.

Posted by: Paul Horwitz | Jan 10, 2012 9:43:29 AM

"I personally favor a little more pluralism than that: I think that given the virtually uncountable number of universities in the United States, there is room for more than one vision of a particular university's mission, and in some cases that can include things like religiously affiliated schools, and schools that have a particular political orientation."

Are you saying that it would be fine with you if a state had a policy that all professors in its state university had to be registered Democrats?

Posted by: Eric Rasmusen | Jan 12, 2012 8:10:54 PM

to restate what I wrote on the other blogpost about this topic, I think a better argument would be that the Academy looks down on political ACTIVISM, and that this is more of a factor than political viewpoint. I come to this conclusion after a (more successful than Ms. Wagner) fall/winter as a candidate, during which my past political (liberal) activities were repeatedly brought up. I was very frequently asked some variation of the question, "Can you come into the Academy and not simply be a political mouthpiece?" I read the facts of Ms. Wagner's case being more consistent with this elitism and disdain for political action, rather than content based per se.

The money quote in the NY Times also stresses Ms. Wagner's activism more than it does the content of her political views.

“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),” Associate Dean Jonathan C. Carlson wrote in 2007 to the law school’s dean, Carolyn Jones.

Posted by: AnonCandidate | Jan 13, 2012 9:00:18 AM

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