The Danger of Courts Deciding Faculty Hiring

In the case of Teresa Wagner v. Carolyn Jones, a conservative candidate for a law professor job alleges political discrimination at the University of Iowa. Peter Wood writes, “We have seldom had so clear a case of a conservative academic being steamrolled by a politically correct faculty.” He’s right. This isn’t a very clear-cut case of political discrimination against conservatives, and yet it’s still one of the clearest you can find.

Wood says that an email to Dean Jones by Associate Dean Jonathan Carlson “is perhaps the smoking gun” of the case: “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 may be missing something.”

Bizarrely, Wood writes about this email, “The language is coy, but Dean Jones got the message and turned down the appointment of the school’s top-ranked candidate.” Apparently Wood believes that Carlson was secretly seeking to destroy Wagner’s candidacy. In fact the opposite is true, as in the other key piece of evidence of alleged ideological discrimination, when Carlson advised Wagner not to tell the faculty that she had a job offer from Ave Maria Law School, because it’s a conservative school (and, ironically, a forthright exponent of precisely the same kind of political discrimination Wood is appalled by in this case).

Obviously, Carlson was a strong advocate of Wagner, and one who believed that the faculty might have been motivated by politics. But it’s noteworthy that even Wagner’s supporter never had any actual evidence of political discrimination. And in a faculty hiring case, much stronger evidence is needed. One sympathetic professor’s suspicions of political bias doesn’t prove diddly-squat.

Wood believes, “Teresa Wagner was by a substantial margin the best candidate for the position she applied for.” That’s hard to determine, considering that we’ve only seen one-sided evaluations of her ability from her supporters. Just because Wagner had teaching experience and publications doesn’t automatically mean that she’s the most qualified person. I could find you a thousand left-leaning adjunct professors who have plenty of teaching experience and publications but who get passed over for jobs where someone with a shorter vita is hired. It’s hard to make hiring decisions. It’s even harder to judge them from afar with fragments of the evidence.

Frankly, I cannot imagine how a court could rule that Dean Jones should have personal liability because she should have known, despite any actual evidence, that the faculty based their decision on politics. Even if you think Wagner was wronged by the faculty and deserves judicial intervention, it’s hard to see why the dean should pay damages for letting the faculty decide who to hire.

If a court actually rules that deans face personal legal liability unless they overturn the hiring decisions of the faculty in any case involving politically controversial faculty, the results would be disastrous for academia. Ironically, it would provide an easy excuse for deans to exercise political discrimination against liberals (which Wood has advocated in the past), by simply imagining some kind of bias among the faculty.

It may be true that, despite a lower court ruling to the contrary, an injustice occurred to Teresa Wagner based on her political views. If so, she joins the ranks of many, many thousands of faculty members (the overwhelming majority of them liberal) in academia who have suffered the same. We need to speak out against political discrimination when it can be proven, and demand that academic appointments never be based on politics. Perhaps we even need to create some voluntary guidelines to advise faculty and administrators on avoiding political bias in hiring decisions. But we need to be wary of seeing courts as the solution to every injustice.

Here’s an example from the left-wing side: North Carolina State University refused to hire Terri Ginsberg for a job where there was clear evidence that university officials were concerned about her public speech critical of Israel.

I think that the evidence of political discrimination against Terri Ginsberg is substantially stronger than the evidence in Wagner’s case, and there needs to be further investigations by the AAUP and journalists about her case (which has received far less media attention than Wagner’s case). But, reluctantly, I agree with the courts that her case should be dismissed.

Letting courts adjudicate every academic hiring decision where there’s not a smoking gun of political discrimination is a nightmare of litigation. We need to get the courts out of academia as much as possible, and then encourage AAUP investigations and public criticism to hold academics accountable for political bias in their decisions.

It’s easy to sympathize with Teresa Wagner and Terri Ginsberg when they believe an injustice has occurred, and they can point to some evidence to back that up. But allowing courts to overrule academic decisions is more likely to harm the hiring process than improve it.

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