On Wednesday, the United States Court of Appeals for the Eighth Circuit issued a decision in Wagner v. Jones, No. 10-2588, 2011 U.S. App. LEXIS 25879 (8th Cir. Dec. 28, 2011). The opinion is an interesting read, even for non-lawyers.
The suit at issue was brought by Teresa Wagner, currently the Associate Director of the Writing Resource Center at the University of Iowa School of Law. Prior to this position, Wagner’s applications for the position of Legal Analysis, Writing, and Research (LAWR) instructor were repeatedly rejected. Wagner subsequently filed suit in federal court against the dean of the law school, Carolyn Jones, alleging violations of her First Amendment rights of political belief and association. Specifically, Wagner alleged that she was denied the position because of her political views.
Wagner is an outspoken social conservative and pro-life advocate. She is a registered Republican and has worked with the National Right to Life Committee and the Family Research Council. In August 2006, she applied for a LAWR position with the University of Iowa School of Law and went through several rounds of selection, including two in-person interviews. At every stage of the process she was highly rated and received positive feedback. However, two separate associate deans relayed concerns to Dean Jones that Wagner’s politics might play a role in her hiring. After having been told by one of these associate deans not to mention to her faculty interviewers that she had been offered a tenure-track position by Ave Maria School of Law—which she had been told was regarded as a conservative law school—Wagner shared these concerns. These concerns seemingly proved to be prescient, as Wagner was rejected while candidates with lower objective evaluations and less experience were hired. In each case, Dean Jones went along with the faculty committee’s recommendation against offering the job to Wagner, and chose not to hire her.
Wagner filed suit in the U.S. District Court for the Southern District of Iowa back in 2009, alleging that her rejection was due to discrimination based on her political beliefs and activities. She filed suit under 42 U.S.C. § 1983, which allows people whose constitutional rights have been violated by a government official acting under color of state law to sue the official in his/her personal capacity and not just his/her professional capacity—meaning that the official, and not just the government, will be liable for any damages awarded.
However, Section 1983 contains a built-in mechanism for allowing government officials to do their jobs without the constant fear of lawsuits: a defense known as "qualified immunity." Under the doctrine of qualified immunity, a government official can only be held personally liable for a constitutional violation if the constitutional right in question is "clearly established" enough that a reasonable person in the official’s position would have known he or she was violating it. If the court finds that the right in question was not clearly established—even if the right was, in fact, violated—the official is entitled to what is known as qualified immunity. In other words, if the right is so clearly established that a competent official would know of it, protect that right! But if the law is murky, don’t worry about being sued. (For more on qualified immunity in the college administrator context, see Azhar’s legal scholarship.)
In the original lawsuit, Dean Jones filed for summary judgment, asking the District Court to hold that there was no factual disagreement that a "reasonable dean in her position would have believed that failing to hire Wagner was lawful in light of clearly established law." And, in granting the summary judgment, that is exactly what the District Court did. If there were no factual disagreement here, there would be no reason for the case to go to a jury, and the case would be dismissed.
The Eighth Circuit reversed the District Court’s grant of summary judgment, noting that Wagner "has presented sufficient evidence for a fact finder [i.e., a juror] to infer that Dean Jones’s repeated decisions not to hire Wagner were in part motivated by Wagner’s constitutionally protected First Amendment rights of political belief and association." In other words, the Eighth Circuit hasn’t concluded that Wagner’s rights were violated; rather, it has found that Wagner demonstrated enough evidence for the case to proceed, thus overruling the lower court’s dismissal of the case.
So what evidence did the Eighth Circuit rely on to reach this conclusion? As the Eighth Circuit noted in its opinion, only one out of 50 faculty members at the law school is a registered Republican. Further, Wagner’s candidacy garnered the most vocal criticism from Professor Randall Bezanson, who clerked for the late Supreme Court Justice Blackmun in the 1972-73 term when Roe v. Wade was decided. Bezanson has written favorably of Justice Blackmun and Roe v. Wade before, while Wagner "worked with the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which advocates for conservative social views." In addition, Bezanson did note that Wagner’s politics were "possibly" discussed, although he claims it was only after deciding not to hire her.
In explicitly adopting the burden-shifting analysis found in the Supreme Court’s First Amendment retaliation case Mount Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977), the Eighth Circuit held that:
Wagner’s claim against Dean Jones is based on Dean Jones’s own actions and omissions during the hiring process. Wagner has alleged facts establishing that even though Dean Jones was on notice that Wagner’s political beliefs and associations may have impermissibly affected the faculty’s hiring recommendation, she still refused to hire Wagner for any position. Accordingly, Dean Jones’s position as a supervisor does not shield her from § 1983 liability.
This decision is important for a number of reasons. First, it changes the qualified immunity landscape, indicating that public university administrators may be found personally liable for monetary damages when expressive activity protected by the First Amendment is a "substantial" or "motivating" factor in an adverse employment decision (e.g., a decision to fire or a refusal to hire, promote, or re-hire). In the Eighth Circuit, claims like Wagner’s will now increasingly go before juries, who will be charged with determining whether the adverse employment decision would have been the same even without the alleged discrimination. This is a significant development, because—as discussed recently here on The Torch—judges are typically loath to insert themselves into what they perceive as academic decisions and generally grant a great deal of deference to universities’ decision-making processes. (Of course, refusing to hire someone because you don’t like her politics is hardly an "academic" decision—it’s a political one.)
Second, the Eighth Circuit suggests that college administrators may have the responsibility to investigate and mitigate political discrimination in hiring practices, and that that faculty members on hiring committees may also be sued in these cases:
Dean Jones was notified that the "process" may not have been working properly and the faculty may have violated the First Amendment, but she still made her hiring decision based solely on the faculty’s suggestions.
This is important, because it suggests that public university administrators and faculty on hiring committees cannot turn a blind eye to political discrimination. The Eighth Circuit here signals that it will not permit violations of First Amendment rights in employment decisions, even if such violations occur in the academic context.
One last tidbit: Professor Bezanson, who the Eighth Circuit identified as the most vocal opponent of Wagner’s appointment, is a First Amendment scholar, and has actually written on the subject of government-sponsored speech before. In his article, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 Iowa L.Rev. 953, 990 (Aug. 1998), Bezanson notes:
[G]overnment cannot place certain speech conditions, such as loyalty oaths, on the hiring of a teacher—at least unless the conditions are clearly relevant and necessary to the lawful terms of employment.
The intervening thirteen years may have changed his mind, but Professor Bezanson’s words hold true today, and, ironically, may indict the professor himself.
For additional reading, there is a good summary of the decision at the FedSoc Blog. Ilya Somin at the Volokh Conspiracy blogged about this case when the lawsuit was filed back in 2009, and the Wall Street Journal covered it then as well.