Those Pesky Conservatives Just Aren’t Bright Enough

The law school at the University of Iowa, like so many
departments at so many institutions of higher learning, has a faculty that is
politically pretty much of one mind, with (as of 2007) 46 registered Democrats
and only one registered Republican. When instructor Teresa Wagner applied for a
professor’s post in her specialty, legal writing, she was warned more than once
that her incongruous political background – she is an outspoken conservative
and active in the right-to-life movement – would be likely to hurt her chances.
An associate dean, Jonathan Carlson, wrote to Dean Carolyn Jones in 2007:
“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 it is, but I’m worried that I’m missing
something.”

Sure enough, the university turned Wagner down: although it
had two spots to fill, it chose to fill only one of those, with a liberal
candidate whose claim to credentials superior to hers was at best uncertain.
Wagner proceeded to sue the school’s dean, and last month a federal appeals
court, in a decision that is causing a stir in both the legal and academic
communities, ruled that her suit could proceed. It cited well-established constitutional
precedent from the U.S. Supreme Court that state governments like Iowa’s may not
permissibly discriminate against job candidates based on those candidates’
political beliefs (with some exceptions not relevant to the Iowa
case, notably for “policy-making” positions).  And it found that she had
proffered enough evidence of such discrimination that it was premature to
dismiss her case.

The lopsided ideological imbalance seen at Iowa
is nothing unusual at prominent law schools. The New York Times’s Adam Liptak,
covering the Wagner case this week, cites a 2005 Georgetown Law Journal study
which found that 94 percent of faculty at Stanford Law who gave to political
candidates gave predominantly to Democrats, 92 percent at Yale and 91 percent
at Harvard.  In my book Schools for Misrule last year, I made the case
that this imbalance hurts the law schools in a number of ways. For example, it
tends to estrange many schools from fuller engagement with real-world practice
areas that will be important to many students, such as military law.  It
also means that one great wing of American political life increasingly tends to
discount the schools’ counsel as irrelevant.

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.

So there is a lot to be said for according discretion and autonomy to the
university, even the tax-supported public university. The irony is that law
faculties at places like Iowa
have been among the most implacable advocates of expanded litigation over
employment decisions throughout the rest of society. Year after year,
dismissing concerns about expense and acrimony as mere special pleading by
employers, they have backed the extension of discrimination law to more groups,
for higher damages, over a wider variety of complaints; some even favor the
adoption of European-style rules that would allow legal resort over any adverse
employment action taken by and employer without “just cause.” Having tailored
this straitjacket for everyone else’s workplaces, they can hardly complain when
they are asked to try it on themselves – can they?

Some of the reader comments appended to the New York Times article,
incidentally, will tend to confirm conservatives’ worst impressions of the
smugness and malice of their adversaries. Jane Smiley of California
– whether or not the well-known novelist is not clear – writes of Ms. Wagner’s
experience, “Maybe her political beliefs are a sign of lack of intelligence,
and the fact that the faculties of all the best schools are Democrats is a sign
of intelligence.” Dave Scott of Ohio
writes: “…as a political movement, contemporary American conservatism richly
deserves to be shunned. …. And if Ms Wagner associates herself with people who
have such beliefs, she has no more business teaching in a law school.” He adds
that “today’s conservatism is so dangerous and repulsive that I can’t say it
bothers me if she was denied the job illegally.” It may not bother him, but it
probably does bother the lawyers who will now need to mount a high-stakes
defense of the Iowa
dean and her institution.

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Walter Olson is a senior
fellow at the Cato Institute and author of ““Schools for Misrule
and an Overlawyered America (Encounter, 2011).