Did Hamline’s faculty break the law when they ganged up to prevent Tom Emmer’s hiring?

Law professor Eugene Volokh wonders:

Minn. Stats. Ann. § 10A.36 makes it a gross misdemeanor for “[a]n individual or association” to “engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity.” There is an exception for “compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.”

In other words, Steve Sviggum could lose his gig as GOP Senate spokesman if he went all liberal on us.

But for non-political jobs?

(All jokes about the staff at Hamline, St. Olaf, St. Thomas, Carlton etc claiming the “viewpoint of the employee is a bona fide occupational qualification of the employment” are noted, laughed at, and disposed of in advance)

As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his “political activity.” Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person’s political activities?

It’d seem to be a key part of that whole “Free Association” thing we conservatives support.

So so far I’d say “no, not illegal” – just as it should not be illegal for me to write “The State of Minnesota should not spend one dime of research money at institutions of higher education that are shown to discriminate politically.


Many states impose such restrictions on employers’ firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their tenants for political activity, but the Minnesota statute is the only I could find that bans “economic reprisals” more broadly…I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.

I suspect it’s make some lawyer pretty wealthy, trying to litigate it – at least on the basis of the law Volokh cites.

But Katherine Kersten, writing for the Center of the American Experiment, notes that some litigation is starting to worm its way through the system.

Given his rejection by Hamline (after he thought he had a job), Emmer might be pleased to know that some aspiring conservative faculty members who are victims of political discrimination are gaining new traction through the courts.

Take Teresa Wagner, whose case was recently considered by the U.S. Eighth Circuit Court of Appeals, which has jurisdiction over Iowa, Minnesota and other Midwestern states.

Some might question Wagner’s sanity, since she applied—and was turned down for—a position at a law school whose 50-member faculty includes only one registered Republican.

Was this hotbed of liberalism Berkeley, or an Ivy League university where (one suspects) conservatives risk being burned at the stake?

No. The school in question was in the heart of Corn Country: the University of Iowa.

As a conservative, Wagner was guilty of several “venial” sins that the high priests of faculty diversity might have forgiven had she confessed and begged for absolution.

The Eighth Circuit is going to hear the case:

The court’s reasoning was revealing. First, the court drew a discriminatory inference from the law school’s grossly skewed 49-to-1 ideological composition. If this is a suspect ratio that may justify hiring lawsuits on First Amendment grounds, then most public education institutions in America may be vulnerable.


Second, the court noted the incestuous nature of the hiring process at the University of Iowa Law School.


While deans and the hiring committee technically have some authority in this respect, in reality, an ideologically homogenous faculty wields authority and creates cookie-cutter replicas of its ideological biases in its new hires. The court found this constitutionally problematic.

Read the whole thing.


4 thoughts on “Hamlined?

  1. Anyone want to bet that Minn. Stats. Ann. § 10A.36 was written in the late 60s/early 70s? You know, back when the universities had evil conservatives as a majority.

  2. The downfall of college thinking will be when they discover they have outpriced their degrees. Waiting for campuses to become conservative will be a long, cold wait. The market – remember the market? – is the only force which will cause the patchouli-scented, candle-burning, sandal-wearing set to even consider they might be misguided.

  3. Your assertion would be consistant with Federal law also. The Supreme Court ruled that the Boy Scouts can discriminate against homosexuals as that organization is similar to a religious group when it comes to traditional beliefs. But a common university cannot as their mission statement is secular.

    I believe Hamline practiced discrimination.

  4. I recently started engaging in a new job hunt. EVERY employer has asked me my race, gender, and 2 even asked me if I was a homosexual, all on the on-line applications.

    This is due to statiscial data being used by the government. If 15% of applicants are from a certain protected class, but only 7% of them are hired, the government, without any other evidence of discrimination, will go after the company (see Cargill in Arkansaw).

    So if a law school has only 2% of its facilty being mainstream conservative, I would suspect there is cause for legal action.

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