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Update on discrimination suit by conservative law professor

Update on discrimination suit by conservative law professor

Almost a year ago I reported on how the case if Teresa Wagner, a 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).

Paul Mirengoff of Power Line describes the outrageous facts behind the case:

Wagner was already the associate director of the law school’s writing center. Moreover, she had taught legal writing at George Mason University Law School, edited three books, practiced as a trial attorney in Iowa, and written several legal briefs, including one in a U.S. Supreme Court case. In addition, the faculty-appointments committee at the University of Iowa College of Law recommended her appointment as a full-time instructor.

By contrast, one of those selected for the position, a self-described “off the charts liberal,” had one semester of law-school teaching experience, no legal publications, and no experience practicing law. He quit the job within a year.

The second position was filled by a former research assistant originally hired straight out of law school. He had been the research assistant for a professor who clerked for Justice Blackmun at the time Blackmun wrote the decision in Roe v. Wade. This professor led the opposition to Wagner’s appointment.

The inference of discrimination arising from this comparison of credentials is bolstered by the fact that, at the time of the hiring decision, the law school had only one Republican on its 50-member faculty, and he had joined the faculty 25 years earlier…. The inference of discrimination against Wagner is also bolstered by a memo written the day after her rejection by an associate dean of the law school.

The law school’s stated reason for not hiring Wagner was that she “flunked” her interview by refusing to teach the “analysis” portion of the course. But, as Peter explains, faculty emails contradict this account. The law school conveniently destroyed its tape of the interview.

Wagner tried her case before a jury. The jury foreman told the Des Moines Register that “everyone in that jury room believed she had been discriminated against.” However, the jury could not agree as to whether the law school dean was exclusively responsible. The jury was thus declared “hung,” which should have meant a new trial. However, through manipulation described by Peter, the court contrived to convert this into a ruling in favor of the dean on the First Amendment count. It later dismissed the Fourteenth Amendment claim.

The case was argued in the 8th Circuit Court of Appeals on Friday. Scott Johnson of Power Line attended the oral argument, and reports:

My favorite question during the oral argument was more of a statement, by Judge Beam. It came during the argument on behalf of the law school and was something like: “So, 49 Democrats and one Republican?”….

The other two judges on the panel in Ms. Wagner’s appeal (Smith and Benton) are similarly good for Ms. Wagner. All three are Republicans. Judge Smith was on the panel that decided the first appeal in favor of Ms. Wagner. Judge Benton was incredibly thoughtful and well prepared. The panel on this appeal presents a sort of mirror image of the University of Iowa law school faculty.

My impression is that the best Ms. Wagner will come away with from the Court this time around is an order remanding the case to the district court for additional findings. I think it is less likely that the Court will reverse the district court decision outright and order a new trial than that it will affirm the district court. Of the three possibilities, my guess is that remand is the most likely.

When I spoke with her yesterday, Ms. Wagner seemed happy and optimistic. Whatever the outcome, she personally will prevail. All I can say is that I wish her the best, as I did when we parted.

UPDATE: I should have noted that via this page on the Eighth Circuit site, you can find audio of the oral argument in the Wagner appeal posted here. If you have any interest in the case, you may want to listen to it yourself.

There are additional reports from TaxProf.

Let’s hope Prof. Wagner is successful.

This type of discrimination hasn’t been a problem for me, yet, but one never knows, does one?


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Congratulations to her for taking on even a part of the liberal educational establishment. She is one shining point of light.

    Not A Member of Any Organized Political in reply to Rick. | February 15, 2014 at 2:12 pm

    Leftists. Leftists.

    There is nothing kind about them.

    They are Leftist Wolves Hiding in Sheep Skins.

An intellectual Rosie the Riveter. Lets hope she eventually gets to “rivet” some of the smug elites with their own standards.

It is interesting, with all the diversity red tape everywhere, that they ended up with 49 dems and only one GOP-er.
Selective diversity?
Their hypocrisy is overwhelming!!

This does have a man bites dog feel. It is interesting because conservatives generally don’t like the law intervening in questions of discrimination. They didn’t like affirmative action or busing. They didn’t like remedies for redlining or credit discrimination. They liked separate but equal, but not integration. They opposed the ERA. I could go on. It does seem that over the last 50 years it has been conservatives that wanted to retain the privilege to discriminate. It is interesting that the shoe is now sometimes on the other foot.

Well, I hope she gets a fair hearing. It is a good precedent if we all accept that laws and the courts can remedy discrimination. I do draw the line at a science teacher who wants to teach creationism. But otherwise, let’s try to be be fair to all.

    MomInLatteland in reply to Rational. | February 15, 2014 at 5:04 pm

    Once a law is on the book then everyone ‘should’ have to abide by it. Whether or not any individual conservative is for or against anti-discrimination laws does not matter here. What matters is that laws were passed and our legal system now provides remedies for discrimination. Those on the left get to live by the rules too.

      Did I say otherwise? But it is delicious to see that conservatives are now feeling what it is like to be discriminated against. Schadenfreude?

      I suggest you do a little history spelunking back to the McCarthy/HUAC era. A lot of people who were loosely affiliated with left-wing causes were blacklisted for many years. The theory was that actors, screen writers, directors, professors and teachers could secretly subvert the US by indoctrinating people through their work. At worst, some of these people had once been a member of the perfectly legal Communist Party on the USA. (1st Amendment)

      Maybe a few really were subversives. But most joined during the depression or while The Soviet Union was fighting the Nazis alone. When they learned who Stalin was, they moved on.

      You do know that Lilly Ledbetter lost on a technicality? Can you point me to the page on this site that bemoans that miscarriage of justice? Actually, I just found it. It contains a screed attacking Obama.

        Estragon in reply to Rational. | February 15, 2014 at 5:41 pm

        McCarthy had absolutely NOTHING to do with Hollywood “blacklisting,” and HUAC only held one hearing on it – at which several were held in contempt for refusal to testify, most refused because they had previously lied under oath in California to a state court – and neither proposed nor passed any legislation.

        The “Hollywood Blacklist” was the creation of Hollywood, led by the publisher of The Hollywood Reporter.

        As usual, leftist mythology is incorrect.

          Rational in reply to Estragon. | February 15, 2014 at 6:08 pm

          Good for you! You got you talking points down. Were any of them convicted of perjury? Was there a blacklist? Were talented, decent and well meaning people denied the ability to earn a living in their chosen field for political reasons?

          Hey, I was hoping we could find some common ground. But NO! You are right and this is the only legitimate case of discrimination. All the lefties, blacks, Jews and Native Americans deserve what they got. Only conservatives are truly deserving.

          This is pathetic. This place is an ideologues’ dream. You stroke each other, but no one else cares. Go on and nurse you grudges and imagined slights.

    inspectorudy in reply to Rational. | February 16, 2014 at 11:36 am

    I read a lot of comments on a lot of issues but your’s is one of the most egregious that I have come across. You make a blanket statement that conservatives opposed affirmative action, busing, redlining, credit discrimination, integration and the ERA. WOW! Are you sure that you haven’t been watching the KKK instead? But just for the fun of it let’s look at all of your claims. 1. Affirmative action, which is the premise that all men should be judged by the color of their skin instead of the content of their character. Put me down as one who opposed AA. 2. Busing, see 1. This delightful program decided that all children should be judged by the color of their skin and not the content of their character. 3. Redlining, the process of actually looking at a persons financial history to see if they have the ability to repay a loan. Think housing bubble that burst to see the results of ignoring a person’s financial history when making them a loan. 4. Credit discrimination, see 3. 5. Integration, please show us all where you came up with this theory. Most opposition to integration came from the Democrats during the George Wallace era. 6. ERA, the bill that was soundly defeated that would have taken one group of human beings and made them special because of chromosomes. Absolutely no thought was made as to the enforcement of or implementation of this absurd idea. It was opposed by so many different groups, both male and female, that to try and separate out one single group is ludicrous.
    But wait! There is more! Then you try to equate the Communist movement just after WWII to political persecution of Hollywood liberals. Do you remember Ethel and Julius Rosenberg? Can you for one single moment understand what the world was like just after WWII? Do you remember that the Russians actually killed many more people than the Nasis did? So when the poor little innocent liberal Hollywood actors decided to jump on the Communist bandwagon they were discriminated by whom? Why Hollywood of course. Where in your closed mind did conservatives or Republicans come into this? Schadenfreude? No, yours is the hate of left wing nuts that gets worse each year even in victory your group get angrier.

“Higher” education has reached yet another new “Low.”

“Diversity” is one of those words that means something different when used by leftists. To them, it can mean promoting a favored class over disfavored classes, or ensuring the favored classes never have to hear any dissent from the politically “correct” positions of the day.

So a “diversity” of 49 Democrats and one Republican is indeed a problem to the leftists: who the heck let a Republican in here?

All this would be well and good if the results of free actions in a free market, though – so, let’s try it! No more taxpayer subsidies to institutions, PERIOD. If they want to pay a bunch of leftists to be tenured faculty of “gender & ethnic studies,” let ’em. But let the parents and students have the power to choose which institution best meets their needs and earns their share of the aid via voucher.

    Rational in reply to Estragon. | February 15, 2014 at 5:58 pm

    ““Diversity” is one of those words that means something different when used by leftists.” You are never going to learn anything if you must caricature.

    Apparently you missed the time when Fire Departments,Police Departments, Schools, Unions, etc were lily white. Even the Sanitation department in major cities was white. The members of these ‘clubs’ were used to bringing in their relatives and their kids. So they resented affirmative action. Their sons weren’t going to join them.

    So you guys have a case and you are going to beat this drum to death. Let me get you a violin. Why don’t you have any perspective.? It seems this woman was discriminated against. You seem to have finally discovered how lousy discrimination is. Congratulations! Your 50 years late.