The Right Wing Litigants

By Big Tent Democrat, Section Law Related
Posted on Mon Nov 26, 2012 at 08:35:31 AM EST
Tags: (all tags)

Share This: Digg!

Like bizarro Thurgood Marshall, the right wing has engaged in a litigation strategy to compel the placement of right wing zealots on university faculties. Case in point - the matter of Teresa Wagner and the University of Iowa Law School:

A federal jury believed the University of Iowa’s law school illegally denied a promotion to a conservative Republican because of her politics, former jurors told The Des Moines Register. However, jurors said they felt conflicted about holding a former dean personally responsible for the bias. They wanted to hold the school itself accountable, but federal law does not recognize political discrimination by institutions. “I will say that everyone in that jury room believed that she had been discriminated against,” said Davenport resident Carol Tracy, the jury forewoman. Meanwhile, attorneys for Teresa Wagner on Tuesday filed a motion for a new trial in the case that scholars agree could have national implications in what some argue is the liberally slanted world of academia.

It's an interesting argument, but anyone familiar with conservative views regarding employment discrimination claims, can't but feel a bit of schadenfreude about the fact that right wing jurisprudence is what blocks relief for Wagner here. It is not some amorphous rule that institutions can not be guilty of discrimination. That is just shoddy reporting. It is instead that "states rights" do not permit suits to be brought against public institutions deemed to be covered by "states rights."

Also ironic is that Supreme Court Justice Antonin Scalia, in Rutan, opined that discrimination in employment decisions by government on the basis of political viewpoint was permissible under the Constitition. More on this interesting subject later.

< CNN Poll: Americans Think 'Fiscal Cliff' A Crisis, Favor Tax Increases and Spending Cuts | Monday Morning Open Thread >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

The Right Wing Litigants | 10 comments (10 topical)

Readers Must Login or Create an Account to Comment

And... (5.00 / 1) (#1)
by ScottW714 on Mon Nov 26, 2012 at 09:17:04 AM EST

...they seem to be perfectly contend with discrimination based on sexual orientation, because that is, cough, cough, a choice, unlike your political party.

Some cities like the discrimination so much, they are repealing anti-discrimination laws.

What's really funny, is the right's new fondness for those dastardly 'rogue' judges, they used to despise.

Karma (5.00 / 1) (#2)
by Militarytracy on Mon Nov 26, 2012 at 09:31:23 AM EST

Yes. (5.00 / 1) (#5)
by Zorba on Mon Nov 26, 2012 at 11:14:20 AM EST

Karma's a b!tch, ain't it? When you're the one who is being bitten in the b*tt by it. ;-)
I also like BTD's use of "schadenfreude." It's such a great word. There is no one-word equivalent in English.


Gotta love German (5.00 / 1) (#6)
by Yman on Mon Nov 26, 2012 at 03:14:53 PM EST

There's a lot of words that have no single word equivalent, in part due to the German tendency to make new words by by just stringing words together. One of my favorites is "Rindfleischetikettierungsüberwachungsaufgabenübertragungsgesetz" - which refers to a beef labeling law, literally "beef labeling regulation & delegation of supervision law".

BTW - The butternut squash casserole was a big hit. I had posted before, but didn't know if you'd see it.


: LOL! (5.00 / 1) (#7)
by Zorba on Mon Nov 26, 2012 at 04:58:48 PM EST

Yes, the German language has a lot of "long words" that describe things that would probably take even longer to describe using many words in English.
I'm glad that the squash casserole was a big hit. It is good, isn't it? Very rich, and not something you would want to eat often, but great for special occasions. ;-)

moral of the story (5.00 / 1) (#3)
by desmoinesdem on Mon Nov 26, 2012 at 10:23:47 AM EST

Save the interview videotape:

The university says its rejection of Wagner for the full-time job was based largely on a presentation she gave before the university's faculty where four professors today said she dismissed the role of teaching legal analysis as part of the schools "Legal Analysis, Research and Writing" academic program. Instead, the four testified that she proclaimed her focus would be on grammatical-type structure in legal writings.
Legal analysis is considered critically important because strong writing without understanding the legal content is essentially useless in the practice of law, the professors testified.
Wagner has denied that she ignored or dismissed the analytical portion of the job's duties in a presentation to the faculty and her legal team has pointed out the liberal leanings and poor student evaluations of some other employees who have been given full-time teaching positions. [...]
University officials have testified that the video was only made for the purpose of allowing other faculty unable to attend Wagner's presentation an opportunity to see her talk prior to taking a vote on whether or not to recommend to the school's dean that she be hired. They have insisted that - had the tape been kept - the university wouldn't be in court.
"Oh, I wish we had that video tape," said Herbert Hovenkamp, one of the four professors who testified this morning. "We wouldn't be here today if we had that video tape."

Yes, both sides acknowledged (5.00 / 2) (#4)
by KeysDan on Mon Nov 26, 2012 at 10:54:53 AM EST

that a video of Ms. Wagner's presentation would resolve the issue. It seems, to me, that the case, therefore, hinges more on an assessment of the candidate's academic fit for the described position than on her being a conservative thinker.

And, the reporting makes it appear that Ms Wagner was denied a "promotion", such as from assistant professor to associate professor, or being denied tenure. In fact, Ms. Wagner was employed as a part-time staff member when she applied for a different type of position--as a faculty member.

The federal jury rejected her argument that she was denied a faculty position due to her conservative positions (First Amendment) but deadlocked on equal protection--being passed over in favor of less qualified candidates (Fourteenth Amendment).

In faculty appointments there are many factors that go into hiring, such as commitment to teaching and scholarship. A different set of qualifications exist for staff positions. The dean was wise to take into account the opinions of the faculty in the hiring, although it would have been helpful if the video of the interview was kept. The testimony of faculty members and minutes of the meetings, if any, should have been supportive of the College's action.


: That's how I read this (5.00 / 2) (#8)
by Towanda on Tue Nov 27, 2012 at 03:34:00 PM EST

as well -- her scholarship is a weak record.
If she also trashed the concept of the courses she was to teach, that was suicidal for her hiring case.
And, yes, it is a hiring case, not a promotion case. Also yes to hiring for parttime and fulltime positions being quite different. (Often, adjunct aka parttime faculty are hired by a department chair or head on the basis of only a letter and a c.v., and at the last minute, when another adjunct backs out. A fulltime faculty hire can take a year or even more, is done by a sizable search committee and requires recommendation for approval by an entire faculty body -- as well as the dean, provost, president, chancellor, etc. -- and is done only after days of interviewing, presentations, vetting of claimed degrees and records of scholarship . . . and, these days, vetting for a criminal record, too.)
But media and public ignorance of academe is nothing new, despite media and public and politicians' claims to know how to do it better. Because of their ignorance, all do a lot of damage to students at public institutions.

government? (none / 0) (#9)
by diogenes on Wed Nov 28, 2012 at 06:36:35 PM EST

"Also ironic is that Supreme Court Justice Antonin Scalia, in Rutan, opined that discrimination in employment decisions by government on the basis of political viewpoint was permissible under the Constitition."

So you agree that private universities are subject to this sort of a lawsuit, whereas public universities are allowed infinite political patronage?

: Try reading it slower (none / 0) (#10)
by Yman on Wed Nov 28, 2012 at 10:25:16 PM EST

Also, people who ask loaded questions usually end up shooting themselves in the foot.
Private actors, as opposed to government actors (i.e. public universities) are usually given greater freedom than their public counterparts when deciding issues of constitutional law, since they are not government actors.