Conservative professors winning legal battles but losing campus culture war

Teresa Wagner recently notched a victory at the U.S. Supreme Court, but she can be forgiven if she doesn’t exactly feel like a winner.

Her lawsuit against the University of Iowa College of Law, in which she accuses the school of denying her a promotion over her conservative beliefs, has dragged on for six years. The case has taken a toll on her family and her finances, and she is running out of money to pay her legal bills.

Ms. Wagner is still working at the university, although no longer as a part-time legal writing instructor. In November, she was reassigned to the library after she told university officials that she found a supervisor rummaging through her backpack.

“She’s working in a stack of books in the main library basically, with no interaction with people at all,” said her attorney, Stephen Fieweger.

The Supreme Court’s March 9 refusal to hear the university’s appeal ensures Ms. Wagner a new trial after the first one, in 2012, ended in a hung jury. Her chances look good, given that jurors from the first trial told The Des Moines Register that they agreed she faced political discrimination but were uncomfortable finding a former dean personally responsible.

Still, even if Ms. Wagner prevails at trial and conservatives win the battle, there is little doubt they are losing the war. Those in the trenches say the assault on conservative ideas in higher education continues despite high-profile legal victories by academics over viewpoint bias.

“These victories are incredibly important to prevent the complete silencing of dissent. But we can’t kid ourselves in thinking that these victories are changing the culture,” said David French, senior legal counsel at the American Center for Law and Justice. “They’re just maintaining the toehold for dissenters.”

Mr. French scored an enormous win a year ago in his defense of Mike Adams, the conservative sociology professor who was awarded a promotion, a raise, $50,000 in back pay and $710,000 in legal fees in his seven-year fight against the University of North Carolina-Wilmington.

“For me personally, yeah, the costs were certainly very great, and it was obviously very stressful and my hair turned gray and all,” Mr. Adams said. “But the fact of the matter is when you’re doing it, you don’t know that. So you’re actually making a series of decisions. And so when people thank me for what I did with my case, I sometimes explain to them that it really wasn’t as difficult as it seemed from the outside because we were actually just making a series of decisions.”

Would he do it again? Of course, he said, but taking universities to court isn’t enough. He said conservatives need to make “a bigger play” by founding and taking back institutions of higher education from the dominant liberal culture.

“In the future, we obviously in the conservative movement have to do much bigger things. We have to start taking over universities,” said Mr. Adams, who also is a columnist at Townhall.com. “When you hear about a liberal cesspool like Sweet Briar College [in Virginia] going broke — conservatives need to buy them. We need our own universities because the fact of the matter is we’re battling against extinction.”

Schools where conservative thought flourishes include Chapman College in California, Colorado Christian University, Gordon College in Massachusetts, Grove City College in Pennsylvania, Hillsdale College in Michigan and Wheaton College in Illinois, but they’re badly outnumbered, Mr. Adams said.

“For those who want to found and fund new academic establishments, that’s fantastic, but you can’t create enough conservative universities to make a significant difference when there’s already hundreds of universities educating 12 [million], 13 million students annually,” Mr. French said.

The ultimate solution lies in changing the culture, he said. “We’re talking about a huge academic establishment here that requires culture change to embrace liberty and respect the marketplace of ideas,” Mr. French said.

In the meantime, he said, the legal challenges play vital roles.

“It only takes a few incidents to send a message to professors to watch what they say. What we’re trying to do with the litigation is send a message back to universities: Watch who you fire,” Mr. French said.

Case in point: Three weeks ago, the University of California agreed to settle a case brought by researcher James Enstrom, who was fired in 2012 from the UCLA School of Public Health after challenging the diesel emissions research of the California Climate Air Resources Board.

In his lawsuit, Mr. Enstrom claimed he was dismissed for failing to toe the “warmist” line on climate change. He also blew the whistle on a scientist doing research for the board who fabricated a Ph.D. from the fictitious “Thornhill University.”

The University of California system agreed to pay $140,000 to Mr. Enstrom and reverse his termination in a court-ordered mediation. He also was allowed to keep the title “retired researcher” — he elected to retire during the 2½-year battle — and related perks such as access to UCLA resources.

“[I]t shows that UCLA and the UC Regents have not been able to suppress a politically incorrect scientific dissenter,” Mr. Enstrom said in a March 5 statement.

UCLA spokesman Phil Hampton denied that Mr. Enstrom was dismissed for his “unpopular scientific views,” saying “the evidence in the litigation did not support that claim” but the resolution “settles the case for far less than the legal costs of a trial.”

“In fact, UCLA is home to a multitude of differing views, and the university vigorously supports the principles of academic freedom. Enstrom’s presence as a researcher for decades, despite his minority positions defending diesel emissions and tobacco, demonstrates that fact,” Mr. Hampton said.

Mr. French, who represented Mr. Enstrom, said the researcher “would be a hero if he was on the left. They’d be making movies about him.”

“But he was a conservative, and so because he was blowing the whistle on environmental science, and science in justifying job-killing regulations, he was tossed out on his ear,” Mr. French said.

Ms. Wagner was easily identified as a conservative, having worked for the National Right to Life Committee and the Family Research Council. When she filed her lawsuit against the University of Iowa in 2009, only one of the 50 faculty members at the law school was a Republican.

She said she was rejected for a full-time post as a writing instructor in 2007 even though her credentials — she had worked as a trial lawyer and as an instructor at George Mason University law school — were clearly superior to those of the relatively inexperienced recent law school graduate who was hired instead.

A faculty review committee had given her a “very enthusiastic” recommendation, but the faculty voted against hiring her. Ms. Wagner later learned that the opposition was led by law professor Randall Bezanson, who was known for his articles “advocating a pro-choice viewpoint on abortion,” according to her lawsuit.

An associate dean, Jonathan Carlson, wrote an email to Dean Carolyn Jones before the vote expressing concern that the faculty would oppose her “because they so despise her politics.”

Attorneys for the university argue that she made blunders during the job interview, although the videotape of the interview has been destroyed. Over the next two years, she was rejected three times for a position as an adjunct professor.

“I will say that everyone in that jury room believed that she had been discriminated against,” Carol Tracy, the jury forewoman, told The Des Moines Register after the first trial in November 2012.

University of Iowa spokesman Joe Brennan said the university will “vigorously defend our case at trial.”

“The law school did not engage in political discrimination when it decided not to hire Teresa Wagner,” he said.

He said Ms. Wagner was moved to the main library after the backpack episode because an internal investigation was inconclusive, and Ms. Wagner “indicated she could no longer work with her supervisor in the Writing Center.”

Ms. Wagner expects to release a book this year describing her experience as the plaintiff in Wagner v. Jones, which she said deals in part with “what a hardship this can be when you encounter employment discrimination based on your moral convictions.”

“The first [aspect is] the personal story is what happened to me, my kids and my family,” she said in a radio interview last week with Family Research Council President Tony Perkins. “The second aspect is the exposure of illegal wrongdoing not just in higher education but in legal education, and the irony in that. These are the very people who are entrusted to teach the First Amendment, and yet they are violating it.”

Despite the trial’s personal and professional cost, she said, she is determined to go forward, in large part because of her children.

“Unfortunately, we’re seeing much, much more of this, and I think that means we might be obligated to stand up to it because a factor in my decision to file a complaint was my children,” Ms. Wagner said. “If I encounter this type of discrimination, I can hardly complain if they do if when I encountered it, I gave it a pass. This type of practice tends to just get worse if people get away with it in the first instance, and we have to think about the future of this country and about our own children.”