Con Law teaching story

[Scott Gerber]

I thought the attached story might be of interest.

Scott Gerber
Law College
Ohio Northern University

Natelson seeks regents' help
in clash with UM Law School
By CHARLES S. JOHNSON
of the Missoulian State Bureau
June 20, 2004

HELENA - University of Montana professor Rob Natelson, accusing the Law 
School of discriminating against him for years because of his 
conservative political views, has asked the state Board of Regents to 
overturn a decision denying him the opportunity to teach constitutional 
law.

Natelson, who has twice run as a Republican for governor and led 
several ballot-issue campaigns to limit taxes, filed a formal appeal 
this week with Regents Chairman John Mercer of Polson. He asked that 
the regents consider his request or assign it to Higher Education 
Commissioner Sheila Stearns rather than allow it to be heard on the UM 
campus.

He asked the regents to reverse the Law School decision and order him 
to be transferred to the constitutional law teaching vacancy.

Natelson urged the regents to admonish the Law School "to reassess its 
policies and practices to assure that faculty members of all viewpoints 
receive equal opportunity and treatment in hiring, promotion, work 
practices, merit pay and faculty awards, and that there is greater 
viewpoint diversity among faculty."

In addition, he asked the regents to order the Law School to file "a 
plan of affirmative action (but not preferential hiring) to assure that 
the goals of equality opportunity, equal treatment and intellectual 
diversity are met." This may include, he said, "reassessment of 
intellectual political bias, faculty sensitivity training and basic 
education in federal and state provisions against illegal 
discrimination."

Mercer said Tuesday he had not yet seen Natelson's appeal, but added: 
"Every grievance that's outside the collective bargaining arena has an 
opportunity to go before the Board of Regents."

Stearns said she had not read Natelson's appeal either so she wasn't in 
a position to comment. She wasn't sure when his appeal would go before 
the regents.

Natelson said he has been the victim of "invidious political 
discrimination" at the UM Law School for more than a decade "once my 
conservative and pro-free-market views became known and I began to 
express them in public."

"I am a political conservative," he said in a 24-page supporting 
document. "To put it mildly, my law school colleagues are not. My views 
are fairly mainstream for Montana as a whole. I supported Ronald 
Reagan's campaigns for president and voted for President George W. 
Bush. I favor school choice, constitutional tax limitation and 
freedom-oriented solutions to social problems."

Natelson said he's been punished by the Law School in several ways. His 
requests for merit pay increase have been denied, he said, and his 
applications to teach constitutional law have been spurned four 
different times after professors teaching the course have left the 
school.

"The law school apparently views this course as politically sensitive 
and has kept it in liberal hands for over 20 years," Natelson said.

Ed Eck, dean of the Law School, couldn't comment on the allegation 
because it's set for a hearing on the UM campus Wednesday.

In his appeal, Natelson cited the Montana Constitution ban on political 
discrimination and said political discrimination by state agencies can 
be unconstitutional under the 14th Amendment to the U.S. Constitution.

"From the time I joined the (UM law) faculty until after I began to 
express my conservative/free market political views in public (circa 
1992-93), I was treated well," Natelson wrote. "This changed 
dramatically after my political views became known - in particular 
after I expressed opposition to tax increase. It continued when I 
publicly criticized the extreme activism of the Montana Supreme Court, 
with which the law school has a relationship too close to be 
appropriate for an academic institution."

Since joining the UM law faculty, Natelson said he has complied "a 
record of publication and public service that rivals any other faculty 
member." For example, he said his publication record, mostly in the 
area of constitutional law and constitutional history, accounts for 40 
percent of all publications by the current full-time faculty.

"I have developed national reputations in constitutional subjects and 
in real property law," he said.

Natelson said he is "generally conceded to be one of the law school's 
most demanding and knowledgeable teachers." He said he has 
"conscientiously withstood the usual pressures (including 
administrative pressures) to court popularity by dumbing-down courses 
or inflating grades."

This appeal, he said, involves the latest in the Law School's "string 
of decisions denying me otherwise routine transfer into a vacant course 
in constitutional law." He called the transfer denials "particularly 
outrageous" since other faculty members are routinely transferred into 
vacant courses at their request, even if they have published little in 
law review articles in that area.

"On the other hand, I have published extensively on constitutional 
subjects in journals of high quality and have taught a relevant course 
for a decade," he said. "There seems to be no recent precedent for 
denying anybody but me such a transfer."

Natelson lost bids for governor in the 1996 and 2000 Republican primary 
races. He founded several conservative groups, including Montanans for 
Better Government, and was host of a statewide radio talk show for 
several years.

He led a signature-gathering campaign in which Montanans suspended and 
ultimately rejected a 1993 state income tax increase. In 1998, he 
spearheaded a voter-approved constitutional initiative that would have 
required voter approval before state and local governments could raise 
taxes and certain fees. That measure, however, was struck down as 
unconstitutional by the Montana Supreme Court.

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Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/