By: Abigail Perdue (Wake Forest School of Law)
The United States has become or (perhaps more cynically) has always been a hotbed of discrimination on the basis of political ideology and affiliation. Increasingly, those discriminatory attitudes permeate every facet of society from romantic relationships to hiring. In recent years, one cannot turn on the television or read the newspaper without being bombarded with politically charged persuasive rhetoric masked as objective news reporting. Yet too rarely do discussions regarding inclusion and diversity address the value of having distinct political perspectives in the classroom.
Nor is it uncommon for online dating profiles to advise Republicans or Democrats to “swipe left,” presumably based on deeply rooted stereotypes regarding the kind of mate a person of that political affiliation will be. And there’s good reason to believe that at least some employers snoop on social media to learn about applicants’ political ideology and activity. It is not hard to imagine a Democrat moving an applicant’s resumé to the bottom of the pile if it lists membership in the Young Republicans or the Federalist Society, or alternatively, a Republican declining to interview an applicant whose public Instagram page showcases the applicant fundraising for a Democratic candidate. As we enter yet another election cycle, which promises to be as contentious as the last, it is important to consider these questions and their implications for our students, both now and in the future.
Indeed, the realities of political discrimination in legal education hit home for me when a student emailed to say that she would be unable to attend our Thursday afternoon class because she was attending a once-in-a-lifetime political event with a close friend who had scored incredibly hard-to-get tickets to attend it. The student was naturally excited, but during the exchange that ensued, it seemed clear that the student would not be sharing the specific reason for her absence with some of her classmates or professors in part because she felt that it would not be well received. Put differently, she feared falling victim to political discrimination.
Not long after, two different students met with me to discuss judicial clerkships. The first expressed sincere concern that anything in her resumé that signaled political ideology, even the topic of her writing sample, might bar her from getting the position. The second flatly stated that he would only apply to Democratic judges who had been appointed by Democratic Presidents.
Whether you characterize these behaviors as thoughtful decisions, benign political preferences, or downright discrimination, they’re concerning for the future of our country (at least to me). After all, if citizens cannot cross the boardroom or Bumble site to meaningfully engage with people whose political ideology is different from their own, then how can we expect that bipartisan, mature, collaborative behavior from the political leaders we elect. And if Americans can’t work together, America will fall apart.
With these troublesome concerns percolating in my mind, I began to consider my role and perhaps, responsibility, as a law professor to help address this pressing issue. I teach effective oral and written communication to diverse audiences. Doesn’t fostering thoughtful exchanges between people with competing ideology fall squarely into that domain? Thus, I (reluctantly) dug into this issue, which is arguably mired in controversy and definitely out of my comfort zone. Drawing on my past experience as an employment litigator, I investigated this curious question more deeply, and what I found might surprise you.
In most states and localities, political discrimination, benign or otherwise, is perfectly legal in the private sector. Indeed, federal anti-discrimination statutes like Title VII, the ADA, and ADEA do not explicitly preserve a person’s right to be free of employment discrimination on the basis of political beliefs, affiliation, or ideology. Yet states and localities may enact anti-discrimination legislation that is more, but not less, protective than their federal counterparts, and New York has done just that. New York Labor Law 201-d prohibits covered employers from discriminating against covered employees and applicants for: “an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal . . .”
With this background in mind, I created an exercise about political discrimination that would simultaneously serve as a vehicle to instill strong research, writing, editing, and analytical skills (among other things). With complete awareness that I was treading in dangerous waters, I aimed to strike a delicate balance. Pointing a finger at one party or another would be polarizing, not unifying.
Accordingly, I set the problem in New York where the owner of the Red Dragon Inn (Daenerys Targaryen), a staunch “Republocrat,” had recently learned that a waitress, Sansa, at the Inn was fundraising for a “Demopublican” candidate in her free time on the weekends. Although Sansa had not previously had any performance issues, Daenerys now felt that Sansa was not a good “fit” for the Inn given her political leanings, which might “put off” the Inn’s “mostly Republocrat” clientele. As a result, Daenerys wanted to terminate Sansa’s employment and replace her with a Republocrat. However, out of an abundance of caution, Daenerys had reached out to our law firm to determine if she could lawfully do so in New York.
Given that this was a first-time pedagogical experiment, I didn’t want my students to be wading through this issue for weeks on end, given that it could be a huge fail. So I limited the issue to a timed exercise on which they would spend a single ninety-minute session. During the next class, we reflected on what they had learned during the exercise, and some shared their thoughts regarding why political discrimination should be permitted or not. Several were surprised that Sansa’s political activity was not already federally protected. It was a productive, fruitful discussion celebrating diverse voices. Although the students had different backgrounds and political affiliations, they seemed unified in the collective sentiment that they should be free to possess and express their beliefs without fear of political discrimination.
Given the success of the exercise, the next year, I expanded the problem into a full-length memo on which we spent several weeks. Again, it fueled rich and illuminating discussions about political discrimination, a topic that many students had not previously considered. This pedagogical experiment was only the first step in my “curiosity voyage” regarding political discrimination, which I will more deeply explore in a forthcoming law review article.
Have you ever tried to address a controversial problem of our time in your classes? How did you handle it? Was your pedagogical experiment worth the risk? Share your good ideas at teachlawbetter.com, and we might just publish them.
 A delicious phrase borrowed from Mr. Clarke on Stranger Things (Netflix).