Is there a tort claim for political discrimination?

By Jim Maisano

I noticed an interesting blog post entitled, “The Tort of Political Discrimination” by Burt Likko. Here is the link:!traps/id/7172db95-89c3-468a-a8bc-033cb188666b/jump/64HrPPpSs0064crtMTu6.

The writer raises a concern about something that probably occurs too often – a potential law school professor was denied a position because she held political views that were different from the rest of the faculty.

College faculties are usually very liberal. Some professors I met in college and law school were not even open to hearing conservative viewpoints. My law school was beyond liberal – as I often joked at the time, Ted Kennedy would have been a conservative on the University of Buffalo Law School faculty. At UB Law, I, along with a handful of other libertarian, moderate and conservative law students, often engaged in fierce debates with the professors and most of our left-wing classmates when hot issues were discussed. Sometimes we were shouted down and called names like “fascist,” because we had the nerve to express our viewpoints, which of course were also held by tens of millions of Americans. Fortunately, it was a challenging experience that made me a better advocate for my views, and frankly, a better young lawyer. Ironically, many of the students must have been as frustrated as me with the close-minded faculty and student body, because I was elected by my peers to be the graduation speaker.

The blog post addresses a recent decision by the Eighth Circuit Court of Appeals. Teresa Wagner was a legal writing instructor at the University of Iowa School of Law and was denied a full-time or adjunct teaching position, even though it appears she was more qualified than the other candidates. Ms. Wagner is a conservative and active in pro-life advocacy and was apparently rejected solely due to her political views.

The writer of the blog, Burt Likko (a pseudonym) stated:

“The procedural posture of the case requires that we consider the disputed facts in the light most favorable to the plaintiff, and so we shall in this post. Wagner brought a suit against the Dean of the University of Iowa School of Law under 42 U.S.C. § 1983, alleging that her First Amendment rights to political expression and free association were abridged by the Dean’s decision not to hire her. The question before the Eighth Circuit is whether such a claim is even possible under the law, and the court decided that yes, it is.”

Here is the court’s decision: Wagner Decision

This is an interesting case to watch as it moves forward. I wish Ms. Wagner well because it appears that she was denied a teaching position because of her political viewpoints. It is my strong belief that people should obtain employment based on the merits. Regardless of your ethnicity, gender, sexual orientation or political views, candidates for a job should be judged based on their resume, background and experience. This is a free, democratic and capitalist society, and people should rise and fall based on their talents. I wonder if Ms. Wagner’s case will find its way to the U.S. Supreme Court?

James Maisano, Esq.

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