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Eighth Circuit Rules on Political Discrimination in Faculty Hiring

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by Publius
Posted December 28, 2011, 5:56 PM

In a decision issued today, the Eighth Circuit has held that a district court erred in granting summary judgment, based on qualified immunity, to a public law school dean in a lawsuit brought by an applicant for a legal writing or adjunct legal writing position.  The suit claims  the applicant, in violation of Section 1983 of the U.S. Civil Rights Act, was discriminated against  on account of her political views, which are protected by the First and Fourteenth Amendments.  

The Eighth Circuit found that the "First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions. . . . If a state actor refuses to hire an individual because of her political associations, then the individual has suffered an adverse employment action. . . . Thus, [the applicant] suffered an adverse employment action."  The appellate court also found that "the district court erred in finding that qualified immunity protects [the dean] from liability in her individual capacity."

Viewing the record through the prism of the summary judgment standard applicable in First Amendment cases, the court believed that there was sufficient evidence to warrant submitting the case to a jury.  Among other things, the court noted that the applicant held herself out to be a Republican and mentioned on her resume her work for National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which advocates for conservative social views, and had taught legal writing for two years at another school.  By contrast, the court said that at the public law school to which she was applying "[t]he law school faculty at the University is viewed as being liberal. Only one out of 50 professors is a registered Republican." The court also noted that  two different associate deans recommended to the applicant that she not mention various aspects of her conservative past, including a tenure-track job offer from another school widely perceived as conservative.  The court also noted that another candidate who was hired had portrayed himself as a liberal, that an associate dean had inquired after the applicant was not hired whether her politics had been a factor, and that even though the applicant was encouraged to apply for part-time adjunct positions, she was not given an interview for these and the faculty voted not to hire her while hiring people with less prior teaching experience and lower student evaluation scores.  Finally, the court noted that while the dean proffered other reasons for her decision not to hire the applicant, and argued that she was bound by the faculty decision, there was a dispute of material facts as to both questions that should be resolved by a jury at trial and that  the law forbidding discrimination in hiring on the basis of political views for non-policymaking public positions was clearly established for purposes of qualified immunity.

 

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