Last week, The Des Moines Register reported that jurors in the Teresa Wagner case believe that the University of Iowa College of Law "illegally denied a promotion to a conservative Republican because of her politics." The story has been picked up by various legal blogs. At FIRE, we have covered the Wagner case before.
The most interesting result of the jury verdict last week is that the jury was convinced Wagner was discriminated against due to her political beliefs but believed it was the University of Iowa College of Law itself, and not the dean, that was responsible for the discrimination. As reported:
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.
However, four jurors told the Register in interviews since the trial ended that they also believed that the school itself — not the former law school dean, Carolyn Jones — should have been named as the responsible party in the lawsuit. There was disagreement within the jury as to whether Jones had the explicit ability to hire Wagner without the vote of the faculty, jurors told the Register.
The result of the jury’s puzzlement on the matter: A mistrial was declared on the allegation that Wagner’s equal protection rights had been violated, and a not-guilty verdict was returned on the count against the law school’s former dean for political discrimination.
"She was discriminated against, but you don’t go against the dean," said juror Don Mayes, a registered Democrat from Davenport. "The dean can only hire if the faculty approves you, and the faculty denied it, so the dean had no say-so about it."
This is very interesting because it highlights a remedial gap for faculty victims of ideological discrimination. Title VII of the federal Civil Rights Act of 1964 permits lawsuits against state actors, including state universities, that discriminate on the basis of "race, color, religion, sex or national origin," but does not protect victims of ideological or political discrimination, such as Teresa Wagner. Consequently, Wagner’s lawsuit was based on Section 1983 of the Civil Rights Act of 1871, which only permits monetary damages against state actors, such as universities, to the extent that the state government consents. Since Iowa has not waived sovereign immunity in this context, Wagner was left with no choice but to sue Dean Jones personally.
There is some evidence that the jurors got it right. Dean Jones might not have had the discretion to hire Wagner over the illegal objections of a discriminatory faculty hiring committee; if so, she should not be held personally liable for political discrimination. More likely, the "bad actors" were infesting the hiring committee itself. As the Eighth Circuit noted (PDF) in this case, the most vocal objections to Wagner’s candidacy came from Randall P. Bezanson, who clerked for the late Supreme Court Justice Blackmun in the 1972–73 term when Blackmun penned the majority in the case of Roe v. Wade. As the Eighth Circuit noted, Bezanson’s abortion advocacy and Wagner’s anti-abortion advocacy were naturally at odds.
This troubling case raises other issues as well. As Professor Jonathan Adler notes over at the Volokh Conspiracy, the University of Iowa College of Law operations manual finds that "the primary rationale for tenure is that it is essential to the creation and maintenance of an atmosphere which encourages the free exchange of ideas so necessary to educational vitality." Interes