- Her political affiliation was constitutionally protected;
- She suffered a deprivation likely to deter free speech or her freedom of association; and
- Her political affiliation was at least a motivating factor in the College’s decision. A motivating factor does not amount to the only factor, but is rather a factor that motivated the University’s actions.
George v. Walker, 535 F.3d 535, 538 (7th Cir. (Ill.) 2008).
If Wagner can prove that an improper purpose was a motivating factor in the decision, the University will have to show that the same decision would have been made in the absence of the protected speech.
If the University carries that burden, the Wagner must then demonstrate that the College’s proffered reasons for the decision were pretextual and that political affiliation was the real reason for the decision.