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A public law school faces trial over liberal bias

Published: Saturday, Oct. 13, 2012 7:08 p.m. CST

IOWA CITY, Iowa (AP) — Praised by colleagues as smart, friendly and passionate about the law, Teresa Wagner was a leading candidate when two jobs came open to teach writing at the University of Iowa law school. An alumnus, she was already working part-time at its writing center and received positive reviews from students and a key committee.

But after she interviewed with the faculty in 2007, one job went to someone without teaching experience and the other wasn't filled. She was passed over for other jobs in the coming years. She now says she was blackballed because of her legal work against abortion rights and will take her complaint to a jury this week in a case that is being closely watched in higher education because of longstanding allegations of political bias at left-leaning law schools.

Conservatives have maintained for years that they are passed over for jobs and promotions at law schools because of their views, but formal challenges have been rare, in part because of the difficulty of proving discrimination. Wagner's case is considered the first of its kind.

"This will put a spotlight on a terrible injustice that is being perpetrated throughout American higher education," said Peter Wood, president of the National Association of Scholars, who says he routinely hears from rejected conservative professors. "What makes Teresa Wagner's case so extraordinary is she came up with the documentary evidence of what was really going on."

But some scholars worry that challenges like Wagner's could force law schools to begin openly considering the political views of job applicants, opening the way for more lawsuits and court interference in hiring.

At a federal trial that starts Monday in Davenport, Wagner will argue that the law school faculty blocked her appointment because she had opposed abortion rights, gay marriage and euthanasia while working as a lawyer for the Family Research Council and the National Right to Life Committee in Washington.

Wagner says the opposition to her was led by professor Randall Bezanson, a law clerk for Justice Harry Blackmun when he wrote the landmark Roe vs. Wade decision that legalized abortion in 1973 — an opinion Wagner spent her earlier career opposing. She says 46 of 50 faculty members who considered her appointment were Democrats, while one was Republican. Wagner will offer as evidence an e-mail from a school official who backed her candidacy warning the dean that some opposed her "because they so despise her politics (and especially her activism about it)."

Wagner declined an interview request before trial, but told Fox News in April that liberals were protective of prestigious faculty appointments. "Republicans need not apply," she said.

Lawyers representing the law school will argue that Wagner was passed over after botching an answer during a 2007 job interview with the faculty, a claim her attorney calls a pretext.

A number of studies in recent years have examined party affiliation, ideology and donations to candidates and concluded that law professors are overwhelmingly left-leaning.

Many law schools recruit conservative scholars to join their faculty and top law schools pride themselves on having prominent representatives of different perspectives. Some law schools, especially those affiliated with the Catholic church and other religions, also lean strongly conservative. Still, many liberals concede they outnumber their colleagues on faculties around the country but say reasons such as career choices may explain the disparity, not discrimination in hiring.

Walter Olson, senior fellow at the Cato Institute, a libertarian think tank, said business conservatives with expertise in regulatory and antitrust law are well-represented on faculties. But he said he would be hard-pressed to name any professor at a non-religious school who opposed the Roe decision before winning tenure.

As a lawyer for conservative groups, Wagner wrote papers and books and filed court briefs on behalf of conservative social causes after graduating from law school in 1993.

She moved back to Iowa City with her husband and four children in 2006 to raise their family. She says she had the necessary experience for the law school openings because she had taught writing at George Mason law school in Virginia and an ethics class at Notre Dame. In 2002, she'd turned down a job offer from Ave Marie Law School, a conservative Catholic institution then located in Ann Arbor, Mich.

"I thought she was going to be dynamic in the classroom," said Ave Marie dean emeritus Bernard Dobranski. "She was very lively and vivacious."

But Wagner says an associate Iowa dean told her to conceal her connection to Ave Maria during the interview because it would be viewed negatively. Before professors voted on whether to recommend her hiring, she claims Bezanson spoke in opposition.

In a deposition, Bezanson said that he "picked up someone saying she was conservative" during discussions but denied that was the driving factor in his opposition. "However anybody voted, nobody is ever stupid enough to say anything about that in a faculty meeting," said Bezanson, an expert on free speech.

The law school says Wagner told them she would not teach legal analysis, which professors found unacceptable since it was in the job description.

Professor Michael Vitiello, of University of the Pacific law school in Sacramento, has argued that claims of liberal bias at law schools are overblown. He said Wagner's case posed intriguing questions about whether political views should be considered in hiring decisions.

"There is something very interesting, seeing conservatives suing on job discrimination claims because suddenly they are portraying themselves as victims," he said. "This case is filled with all sorts of ironies."

Olson, of the Cato Institute and author of a book on legal academia, said the jury's decision "could shake up lots of hiring practices. If they say state universities are under scrutiny to make sure they are not discriminating against viewpoints, then a lot of people can sue, a lot of cases are going to be pretty good and the universities are going to have someone looking over their shoulder."

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