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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