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    Conservative Iowa law professor denied new trial in political discrimination case

    Conservative Iowa law professor denied new trial in political discrimination case

    The lawsuit by Teresa Wagner against the former Dean of the University of Iowa’s College of Law has received a lot of attention, a tortured procedural history (including a prior appeal) and confusing results.  In the latest twist, a judge has denied Wagner’s motion for a new trial (full opinion embedded at bottom of post).

    The lawsuit concerns claims by Wagner that she suffered discrimination based on her conservative political views, resulting in her being denied a promotion (she’s still employed).  The full Amended Complaint is here.  Articles at TaxProf, The FIRE  and Chronicle of Higher Education after the jury verdict last October had the background and links.

    As reported by the Des Moines Register at the time, the jury members believed there was discrimination, but could not hold the University liable under the law:

    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….

    The case centers on Wagner’s claim that she was passed over for a full-time teaching position by the university because of her advocacy and work with groups that oppose abortion and same-sex marriage rights.

    Court documents and testimony show a less-qualified candidate was hired for the job in 2007 and that the law school’s associate dean, Jon Carlson, had written an email in which he expressed concern that the faculty might be opposed to Wagner’s application “because they so despise her politics” and activism.

    In a trial held last month in Davenport, more than a dozen U of I professors and staff testified that Wagner failed to win the vote of the faculty because she performed miserably in a presentation. As a result, Wagner was not the faculty’s top choice for the job, according to testimony from the trial.

    Jurors interviewed by the Register said that they didn’t accept the university’s explanation and that they believed Wagner, who still works part time in the U of I’s Law Writing Resource Center, had been discriminated against.

    Since the University could not be sued itself, the exoneration of the Dean amounted to a loss.  On the second count, violation of the equal protection clause, the jury was deadlocked.

    Wagner filed a motion for a new trial on the First Amendment ground focused on alleged procedural defects in the Court’s handling of the case; the defendants (the new dean is a defendant but only in her “official” capacity) filed a motion to have the equal protection claim dismissed as a matter of law.

    A Judge has just ruled (full decision embedded below) that there will be no new trial and that the equal protection claim will be thrown out as well, via Des Moines Register, No new trial for conservative U of I worker:

    …. Wagner argued that she was denied a promotion at the U of I law school’s writing center because of her conservative history, including work with the Family Research Council, which opposes same-sex marriage, and the National Right to Life Committee, which opposes abortion.

    Her legal team presented testimony and evidence at trial claiming she was far more qualified than other applicants given jobs that she applied for beginning in late 2006. University officials, however, said she failed to grasp the concept of a writing instructor’s position and failed a key interview.

    A 12-person federal jury decided the law school was not guilty of political discrimination, which was the highest-profile allegation in the case. However, the jury was unable to reach a verdict as to whether the school had violated Wagner’s equal protection rights, leading to a mistrial on that count. A third count, alleging a violation of Wagner’s due process rights, was dismissed prior to being considered by the jury.

    Wagner moved for a retrial on all counts in the case. Her legal team said the jury was reconvened by U.S. Magistrate Judge Thomas Shields without notifying Wagner’s attorney when he accepted a verdict on the first count. Shields, along with U.S. District Judge Robert Pratt, presided over the case.

    Wagner said the action denied her a right to poll the jury, a process that helps determine if jurors were unduly pressured to render a verdict after lengthy deliberations.

    “What happened is exactly what I feared: The jury that is coming down to the deadline got, in my opinion, a coerced order for a verdict,” Stephen Fieweger, Wagner’s attorney, told the Register in December.

    Pratt on Friday issued a 43-page ruling rejecting Wagner’s arguments and denying a new trial. He also granted the law school defendants’ motion to dismiss the count that the school had violated Wagner’s equal protection rights.

    I emailed Wagner’s counsel for comment both on the decision and future appeal plans, but have not heard back yet.

    Teresa Wagner v. Jones _Iowa College of Law_ – Decision Denying New Trial_ March 8_ 2013


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    My wife has faced some of this as well in academia. However, it is difficult to prove and I think only a 1st amendment case can really work. We decided not to pursue these cases, because she faced it in employment not promotion, so it is a more difficult case and not even clear how first amendment would apply, if at all.

    The best way to start proving discrimination in such cases seems to be to show that the semifinalists and finalists for hiring or promotions (most academic jobs have two rounds of interviews after weeding through hundreds of applications) are almost entirely fitting the liberal ideology. Their argument would be that there are so few conservative applications that they simply didn’t find any qualified conservative applicants. It would be ironic, because there are relatively few openly conservative faculty vying for tenure simply because few are hired originally. Disparate impact would not apply in a first amendment case. It’s not a discrimination cause but free speech.

    Winning a few of these cases in academia and the media could do miracles to change our country for the better. It would help re-inform the citizenry about the Constitution, the benefits of capitalism, and the good America has done.

    PrincetonAl | March 10, 2013 at 9:57 pm

    Perhaps the good news is you can now discriminate against liberals in the hiring process in the same manner. Not much help in academia. But out in the real world … 🙂

    But seriously, I have some concerns about this case, as it would open itself to a host of abuse, and as always when it comes to victimization lawsuits, independent-minded talent would move on, and victim-mindset useless drones would sue and profit.

    So I’m not sure its quite as horrendous as it sounds, but I welcome other thoughts on the matter.

      Milhouse in reply to PrincetonAl. | March 11, 2013 at 8:22 am

      In the real world you’re entitled to discriminate among viewpoints. The government is not, and that’s what this suit is about.

      SDN in reply to PrincetonAl. | March 11, 2013 at 11:57 am

      Perhaps the good news is you can now discriminate against liberals in the hiring process in the same manner. Not much help in academia. But out in the real world …

      I wouldn’t advise it, because Liberals tend to be members of Official Government Victim Groups and can call on EEOC, NLRB, DOJ “Civil Rights” division, etc. to deal with any real or perceived attempt to apply the same standards to them.

    This need not be the end. Unless I’m not reading the circumstances of the case incorrectly, the district court’s decision can be appealed at the appellate level.

    University of Iowa and Iowa State University seems to enjoy discriminating against conservative values.

    Iowa, What’s with you people?

      creeper in reply to Paul. | March 11, 2013 at 1:46 pm

      Paul, our educational system from kindergarten through the universities is firmly in the hands of “progressives”. Unfortunately, so is our judicial system.

      There is hope if Wagner can make it to the Iowa Supreme Court. Voters threw out several of the liberal judges after their ruling legalizing gay marriage.

      Iowa’s judges are elected and since we lean liberal here so does our judiciary. Unfortunately, most voters don’t pay much attention to the judges’ records. Voting on judicial seats is sparse and easily manipulated. Once a judge gets a seat on the bench it’s rare that he/she is tossed out. It takes a ruling Iowans consider outrageous (see above para) for that to happen.

      Back to our universities for a moment, though. To give you an example of how exalted our schools are, the five highest-paid state employees are all at the state universities.

      Sadly, the top four are not academics but athletic coaches. I’m afraid that rather answers your question.

    I’m no constitutional scholar by any means, but I did write a paper about campus speech codes for an independent study in law school about 10 years ago. State schools definitely are limited in how they control speech, especially speech from their employees.

    Is there some non-profit free speech or conservative legal organization out there that would take on this issue purely with a 1st amendment argument but with a better case? I doubt the ACLU would. FIRE ( is non-partisan and works on these issues, but it does not handle litigation.

    I usually detest litigation, but one of the truly legitimate reasons is to protect rights that have been neglected. Would love to see some people win some of these cases. It could transform universities.

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