Preferred and Prohibited Discrimination

Is the Fourteenth Amendment inferior to the
First? If states are generally prohibited from discriminating on the basis of
political identity, why should they be allowed to discriminate on the basis of
racial identity?

Consider Teresa
Wagner’s much-discussed
lawsuit against the University of Iowa College of Law for not hiring her due to her political convictions. A federal grand jury
believed the law school had indeed discriminated against her but ultimately deadlocked
because “federal law does not recognize political discrimination by
institutions.”

More interesting than this perhaps
provisional result is the Eight Circuit Court of Appeals’ legal reasoning that
made the trial possible. In its decision last
December allowing the trial to go forward, The Court of Appeals relied on a 2006 Supreme Court
decision
holding that Title VII “seeks a workplace where individuals are
not discriminated against because of their racial, ethnic, religious, or
gender-based status.” In short, it seeks “to prevent injury to individuals
based on who they are, i.e., their status.” The Eighth Circuit also
adopted the First Circuit’s holding that, if a plaintiff presents sufficient
evidence of discrimination, the employer was obligated to demonstrate a “nondiscriminatory
basis” for the decision to not hire. Specifically, the employer must show that
they did not consider the applicant’s “political affiliation.”
                                                                 

This raises an obvious question. Why should
courts allow discrimination against an applicant because of her racial identity
but not because of her opinion about abortion?
 

In an editorial
about the Teresa Wagner case, the Des Moines Register argued that the
University of Iowa “respects the goal of diversity for race, religion and
gender, but it should show the same respect for diversity of political
thought.” Actually, it already does. It discriminates on the basis of political
thought just as it discriminates on the basis of race and ethnicity. More
discrimination — seeking, say, a “critical mass” of conservatives — would
simply compound the discrimination, not cure it.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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