Today the Des Moines Register reported on a lawsuit filed against the Univeristy of Iowa College of Law.  The Plaintiff is Teresa Wagner, who applied for a writing instructor position with the law school, but was not hired for the job.  Wagner claims that she was not hired due to her conservative political affiliation, since a majority of the faculty at the law school are registered Democrats.
To make out a prima facie case of First Amendment retaliation, Wagner must present evidence that:
  1. Her political affiliation was constitutionally protected;
  2. She suffered a deprivation likely to deter free speech or her freedom of association; and
  3. 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.