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Diversity and Discrimination in Law School Hiring

Off-topic but interesting, Adam Liptak has this story in the NYT about an Eighth Circuit decision saying a discrimination suit against U. Iowa College of Law must go to trial.
Teresa Wagner claims she was discriminated against in faculty hiring.  The claimed basis of discrimination was not any of the usual grounds:  race, sex, etc.  No, she believes she was blackballed because she is a conservative.

Looking around American academia generally, it is painfully obvious that there is gross disparity between the political composition of the faculty and that of the country as a whole.  At UI, two surveys in 2007 and 2009 found one and two Republicans, respectively, in a 50-prof faculty.  In the State of Iowa, as of this month, about 31.1% of the people are registered Republicans and 32.6% are registered Democrats.

Pause for a moment and imagine how the defense and defense-oriented judges would go nuclear if statistics that stark were presented in a jury discrimination case.  Remember Berghuis v. Smith?  The Sixth Circuit found a clear case of discrimination -- so clear that the contrary state decision was "unreasonable" -- when African-Americans were 7.25% of the eligible population but only 6% of the jury pool.  (The Supreme Court reversed.)  Here we have a disparity vastly larger.

How much of this is discrimination and how much is the voluntary choice of people to go into that line of work?  I don't know.  I do think that diversity of viewpoint is every bit as important as diversity of other characteristics in providing a quality education.

But Ms. Wagner's case is not limited to statistics.  She also has a memo from the Associate Dean to the Dean:

Frankly, one thing that worries me is that some people may be opposed to Teresa serving in any role, in part at least because they so despise her politics (and especially her activism about it).  I hate to think that is the case, and I don't actually think it is, but I'm worried that I might be missing something.
Not a smoking gun, and AD Carlson deserves points for being candid and worried about this.  (If he were a practicing lawyer and not an academic, he would have known not to put it in a memo.)  Still, the Eighth is probably right that the case is strong enough to survive summary judgment.

I agree with Walter Olson, quoted in the story, that litigation is not the best way to solve this problem.  School administrations should recognize their lack of viewpoint diversity as a problem and take steps to fix it.

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