January 27, 2009

In Defense Of Political Viewpoint Discrimination

I know, the very idea of academics discriminating against conservatives is just, well, shocking. But that's exactly what a new lawsuit alleges happened at the University of Iowa College of Law. I think this proves that whiny, meritless lawsuits sure to earn the tag of "frivolous" by those who believe in such things are not confined to generally politically liberal "trial lawyers."

Here's the converse case -- let's say I'm a big ol' Democrat and I find out a ditch digger who works for me is a Republican. I fire him. Obviously, that sucks; the guy has a right to be a Republican if he wants. So should I be able to do that? Or should he be able to sue me for firing him?

1. The Law Does Not Protect Political Viewpoint Discrimination

Political affiliation and opinions are the sorts of things about which employers can and do take notice. Very few laws protect political viewpoint discrimination, and almost everywhere, it is one of the things that an employer can use to help make employment decisions. This is appropriate, I think.

I probably don't really care whether a ditch digger is a Democrat or a Republican, a liberal or a conservative. That's why firing a Republican for a job like that seems so unfair; the politics are well within the mainstream and obviously have nothing to do with the job. But what if he's a Nazi? Or, on the other end of the scale, a Communist? This is a guy who's going to be interacting with my customers, and representing my business (and, by extension, me personally). Do I want some guy who, in his free time, is going to make a spectacle of himself parading down the street in a robe and pointy white hat shouting about "white power"? Of course not -- and if I know that about a prospective employee, I should be able to use that information to not hire him.

Sure, he has a First Amendment right to be Republican if he wants. But he doesn't have a First Amendment right to work for me. Same thing if he wants to have a beard and mustache and wear his hair long -- I have the right to impose a dress code despite his right to "express himself" by looking like the ZZ Top guys. The law trusts me to make the decision about what political point of view is within the mainstream and which is sufficiently weird that I can refuse to hire (or fire, or whatever) someone for. And that level of tolerance may very well be different for one position that it would for another -- I might be more willing to hire the Nazi to dig ditches than I would be to hire him to serve as my press agent, for instance.

2. Academia Is Extremely Competitive

Now, here we're talking about a public institution rather than my hypothetical private ditch-digging company. But we're also talking about a full-time teaching position at a top-tier law school (University of Iowa ranked #27 overall in the admittedly flawed U.S. News and World Report ranking of law schools), so it's reasonably possible that the school's defense -- there were better-qualified applicants -- is legitimate. A full-time job at an academic institution of this caliber and prestige is one that people will seek out and move across the country at their own expense to get. There were almsot certainly dozens of well-qualified liberal candidates who came away from that process disappointed.

And I get it that the theory here is not "discrimination" in the race-based or gender-based sort of context. This is First Amendment territory -- the plaintiff says she has a First Amendment right to hold whatever point of view she wants on a constellation of issues, and the state of Iowa cannot punish her for holding those points of view. Which is certainly correct. But it is also almost certainly of so little significance in this sort of an environment as to approach irrelevance.

So let's take the sort of case that never actually happens, and probably theoretically never could actually happen. Let's say we have two identical candidates for such a competitive position. They are, let's say, identical twins, who have gone to the same schools and got the same grades, and published articles in the same journals, within months of one another. Whatever game you want to play to distinguish between the two, they have followed the very same path, with the same degree of success, and the two of them are head and shoulders above the rest of the competition. The only discernable difference between the two of them is that candidate A has been politically active in the "Happy Fuzzy Puppy Party" and candidate B has been active in the "Cute Cuddly Kitty-Cat Party." To an outsider, the "Puppy Party" and the "Kitty Party" are equally valid political parties to join. In such a situation, lacking any other kind of way to distinguish between the two candidates, can you consider the "Puppy" and "Kitty" affiliations?

Maybe you have to, at that point. There is nothing else to distinguish between the two, and there is only one spot open. Flipping a coin seems somehow more arbitrary than picking between Fuzzy Puppies and Cuddly Kitties. So if, in an objective sense of the word, you've got a bunch of Puppy people on your faculty and almost no Kitty people, you've got no choice but to pick one over the other.

3. Money Talks

Which means we have to trust that people in those decision-making positions pick between the Puppy candidate and the Kitty candidate the right way. If it's an academic position, maybe way to do that is to pick the point of view that will make for the best teaching environment. Or the one that will enhance the candidate's chances of getting published in prestigious journals. Or the one that will create the best dynamics in faculty interaction.

Or -- and here's what is really at stake -- you pick the one that will be more attractive to the kinds of people who donate money for research grants and fund scholarships and write endowments.

Just like I, as the guy running a ditch digging company, have to consider how my customers will react to my employees' off-duty political activities, so too does a law school dean have to consider how donors and funders will react to how faculty members' activities will affect the donor base because there is no school, public or private, that can afford to offend its donors.

Now, it might be that if you pick some Kitty People, you'll open up the purse strings of other Kitty People out there in the world. But if your donor base is made up mostly of Puppy People, you've probably already got a network of donors and sponsors who are Puppy People or at least like Puppy People. So the safer choice is to go with another Puppy Person. Not because you like Puppies more than Kitties, but because you need to keep the money flowing in.

Which doesn't mean I like that result, since it would tend to promote viewpoint uniformity rather than viewpoint diversity in the makeup of faculty members at elite institutions. But it is the right result to reach. When conservatives start funding the academy the way that liberals do, the universities will respond by hiring more conservative academics to please those donors.

4. Conclusion -- How To Succeed In Academia (Or Anywhere Else) Despite Having Unpopular Opinions

Seems to me that it's simply not a disqualifier to be conservative in academia. I'd agree that in some places, and with some decision-makers, it's a strike against you if you wear your conservative credentials on your sleeve. But with others, they may find it quirky but at least see the value in having a diversity of viewpoints -- provided that you can back up your conservative opinions with arguments of reasonable strength and gather reasonable amounts of support for your point of view. It may not feel like it at times, but in fact your liberal colleagues will generally have to do the same thing. As with any other job applicant, you must labor to not give offense, to discern both the objective and the intangible things that really matter, to listen more than you speak, and (given that you are likely to hold a minority viewpoint) appear to be reasonable and open-minded.

What you don't want to do is appear to be picking a fight over politics. No one wants to hire someone who is going to pick fights with them, regardless of the subject matter of the fight and regardless of their own willingness to tolerate points of view other than their own. Likewise, if it looks like someone there is going to pick a fight with you, maybe that's something you'd rather avoid entirely.

If you've got good academic stuff to bring to the table, you can overcome the strike. You've got to do be really smart, write and publish really good papers, and demonstrate how your commitment to academics is at least as important as your political opinions, so don't walk in to a hiring meeting wearing a "Reagan Was Right!" T-Shirt, or at least wear a shirt that covers up the elephant tattoo on your arm. But then again, it would be a good idea to wear a shirt that covered up a death's-head tattoo, too.

In academia, there is still such a thing as tenure. Once you have tenure, you're free to do and express anything you like. Until then, though, you may need to exercise a little bit of circumspection about saying or doing things that will piss off your peers. The limits of what will be socially tolerated extend well beyond politics, too. But the big lesson is -- be better than your competition at what you do. If you're that good, then the rest won't matter.

I don't think the plaintiff in this case was so well-qualified for the job she wanted that her politics were a significant factor in the school's hiring decision. They couldn't be, not at that level. And if she wasn't smart enough to figure out that 1) she was a Republican asking a bunch of Democrats for a job, and 2) how to emphasize those portions of her resume and background that would be pleasing to the decision-makers, well, maybe she wasn't smart enough for a full-time position at a top-thirty law school in the first place.

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