In my practice I frequently represent counties, municipalities, school districts and other public entities.   Just like their counterparts in the private sector, public employees are protected against discrimination because of race, sex, age, religion, disability, and other protected statuses. However, public employees have one important right their private sector brethren do not share: the right under the First Amendment to be free of discrimination based upon their political speech and associations. 

Most First Amendment employment lawsuits involve claims of retaliatory discharge.   A typical case is the newly elected public official who wants to purge the ranks of employees who supported his political opponent in the election and fill the positions with his political supporters.   While political affiliation is a legitimate consideration for positions that involve policy making, employees holding jobs that do not involve policy functions are protected from retaliation based upon their political beliefs, even if they conflict with those of the boss.

A recent ruling from Eighth Circuit presented the more unusual case of refusal to hire based upon a person’s political beliefs. Indeed, the case was the first time the Eighth Circuit has addressed the question. Even more intriguing is that the plaintiff is a conservative law professor who claims she was blackballed by the predominantly liberal faculty at the University of Iowa College of Law.    The Court’s ruling reinstating the lawsuit that the trial court dismissed on summary judgment has sent shock waves through the legal and higher education communities, as reflected by the widespread national media coverage (WSJ; Fox News; New York Times; Chronicle of Higher Education). 

Teresa Wagner alleged she was not hired as a Legal Analysis, Research, and Writing (LAWR) Instructor because of her conservative political views.    Wagner, who is a graduate of the UI College of Law, had spent several years working with the National Right to Life Committee, a pro life advocacy group, and the Family Research Council, which advocates for conservative social policy.   Unlike the other candidates who applied for the position, Wagner had prior experience teaching Legal Analysis and Writing at another law school.    Wagner received many positive comments from both faculty and students who were involved in the interview process, and several recommended that she be hired.   Ultimately, the Dean chose to hire another applicant who had no prior successful teaching experience, had never practiced law, and had no legal publications, but who presented himself as a political liberal.  

Most interesting about the case was evidence showing that a particular faculty member’s views on abortion may have impacted the decision making.   The Court noted that Professor Randall Bezanson had been the primary, vocal opponent to hiring Wagner.   Bezanson, as it turned out, served as a law clerk to Justice Blackmun during the term Roe v. Wade was written, had written tributes to Justice Blackmun and his abortion jurisprudence, and published legal articles advocating support for abortion rights.   In contrast, part of Wagner’s legal career focused on pro-life advocacy. 

Even though Wagner was not offered the full time LAWR position, she was encourage to apply for adjunct openings in the same department.   The faculty hiring committee recommended her for an adjunct position, but the Dean chose to hire two others instead.   According to one member of the law faculty, the Dean had always followed the faculty’s recommendations in the past when hiring for adjunct positions. The others persons hired for the adjunct positions had no prior law school teaching experience, and one had just graduated from law school. 

The legal question the court addressed was whether the Dean’s decision to offer the LAWR position to another applicant was protected by qualified immunity.   The Court analyzed the claim under the burden shifting approach adopted by the First Circuit.  The Court held Wagner must first show that political affiliation was a “substantial or motivating factor” behind the hiring decision.   At that point, the employer must articulate a non-discriminatory basis for the decision and prove the decision would have been taken without regard to the candidate’s political affiliation.   Next, the Defendant is required to show the constitutional right that was allegedly violated was “clearly established” at the time of the violation.

The Court concluded that the evidence showed there was a genuine factual dispute whether the Dean would have made the same hiring decision in the absence of Wagner’s political beliefs. The Court also found that the right to be considered for a non-policy making and non-confidential position without regard to one’s political beliefs was clearly established. The question is whether Dean Jones, given the information available to her about Wagner’s political beliefs, and the relative qualifications of the other candidates, reasonably could have believed that not hiring Wagner was lawful. 

The Court of Appeals reversed the grant of summary judgment and ordered the case to trial.   Notably, on January 10, 2012, the Dean filed a Petition for re-hearing en banc.   The Court has not yet ruled on the en banc request.   Regardless whether the Court of Appeals agrees to a re-hearing or the case goes to trial, it appears this dispute is far from over.  Stay tuned.