Proving Discrimination Is Almost Impossible

Teresa Wagner’s lawsuit
against the University of Iowa law school ended a few weeks ago when a jury
declared that the school did not submit her to political discrimination when it
rejected her application for a job. Wagner made a second allegation–that her
equal protection rights were violated because the law school held her political
activism against her–which was not ruled upon, the judge declaring a mistrial
because the jury couldn’t reach a decision, leaving open the possibility of
future action by Wagner’s attorney. Indeed, the Chronicle reports
that Wagner has filed papers asking for a retrial on all counts. 

The first verdict wasn’t unexpected.  Wagner had to
prove that faculty members voted against her for her political views, which run
well to the Right.  But of course, nobody on hiring committees ever
says outright, “She’s a conservative–she’s out!”  They know
better–Schmidt cites one witness who “testified that no faculty member
would ‘be stupid enough’ to cite politics as the reason for turning down an applicant”–and
besides, they don’t have to.  In the hiring process there are so many
stages and variables that it’s easy to drop a conservative candidate for a
dozen other more or less non-political reasons.  “She isn’t a good
fit,” one might say, or “We already have strengths in her area, we need someone
in another field,” another could argue, or “I don’t think she handled questions
very well in the interview” could be the line.  The outcome is
assured and nobody needs to raise delicate matters along the way.

In Wagner’s case, a clear
distinction came up in her qualifications relative the person who got the job: She was one of five candidates chosen from a pool of 50 applicants invited to
present to the university’s faculty.

But that enthusiasm died soon after her presentation. The job
was given to Matt Williamson, a candidate who had never practiced law, had no
published works and was an ardent liberal who frequently criticized
Republicans, according to testimony and court documents presented last week to
the jury.

That a candidate who never practiced law and had no publications
should prevail over Wagner sounds fishy.  The Chronicle story
relates, too, that the person hired resigned a year later for “poor
performance.”  One could also mention the disparate-outcome argument
so beloved by liberals: the law school has one registered Republican and 46
registered Democrats.  Finally, one should note the email
law professor and former associate dean Jon Carlson sent to the law school dean
after the first rejection in which he worried that the faculty would balk at
the hiring of Wagner due to “her politics (and especially her activism
about it).”  

But the faculty had an answer: she botched the
presentation.  When asked about teaching “legal analysis,” an
important part of the job, they say, she declined.  Several witnesses
repeated that criticism, even though Wagner never recalls saying so (she showed
her pre-interview notes in court that displayed her intention to teach the
subject), and a couple of witnesses agreed with her, including Carlson and Mark
Osiel, another professor in the law school. The law school taped Wagner’s
presentation and could have offered the tape to settle the question. However,
the university erased the tape months after the hiring process had ended.

The coda to this story is equally frustrating. Just last week reporter
Jason Clayworth spoke
with four members of the jury who told him that jurors did believe that
political discrimination had taken place, but that they couldn’t hold one
person responsible. This outcome shows how
far universities are able to fiddle with the hiring process with
impunity.  Here we have a jury convinced that political discrimination
took place, but they can’t convict because they have the wrong defendant. 
But the plaintiff couldn’t pick another defendant; indeed, federal law dictated
that the dean be made the “responsible party.” So people who feel they’ve been
treated unfairly face a Catch-22, and universities can carry on as usual.