4

A bill was introduced in the Iowa legislature which gives an instruction to the Board of Regents (which governs seven specific institutions). Relevant background information is that people registered to vote in Iowa can register "no party", or else Democrat / Republican (Libertarian and Green are apparently "non-party political affiliations"); this registration is a public record. The intent of the law is to regulate hiring or professors and instructors in said institutions so that the number of Democrats and the number of Republicans in faculty positions cannot diverge by more than 10%. Specifically, it says

A person shall not be hired as a professor or instructor member of the faculty at such an institution if the person’s political party affiliation on the date of hire would cause the percentage of the faculty belonging to one political party to exceed by ten percent the percentage of the faculty belonging to the other political party, on the date established by the board for determining the political party composition of the faculty.

(There is a provision to the effect that the the commissioner of elections shall turn over registration records annually so that the count can be done, though the mechanism of counting is unspecified. Given the reality of parties, only registered Democrats and Republicans are considered so independent and 3rd party voters aren't counted: it strictly compares the number of Democrats vs. Republicans, thus the number of D faculty cannot exceed the number of R faculty by more than 10%, or vice versa).

I am interested in how the courts could interpret the language "would cause" in this law. For the sake of argument (which means, I'm not saying it's true, I'm saying we have to make some factual assumptions in order to interpret the language), I will assume that across the seven institutions, jointly and severally, the number of registered Democrats holding faculty positions in such institutions currently exceeds the number of registered Republicans by more than 10%.

The ordinary meaning of "would cause X" is that a state of affairs X does not exist but if Y happens (and it's not just a coincidence – I'm avoiding 3K years of philosophical debate on "cause"), then X will be the case. The question is then whether, because that threshold is already exceeded (by assumption), no hiring causes the threshold to be exceeded, and therefore there would be no legal impediment to hiring an Iowa-registered Democrat to a faculty position.

To be clear: this is a bill, not a law; I do not claim it has any chance of being passed; I am not asking if it would be held to be unconstitutional on other grounds. This is just about case law and how courts interpret "would cause" or other language describing a change of state.

1

On proper English construction "would cause" means that the state after the event is different from the state before the event as a result of that event.

This is a really, really badly drafted clause.

First 10% of what? The number of people in the faculty, the number of people in the larger party or the number of people in the smaller party. A faculty 20 democrats, 23 republicans and 0 independents can hire a republican if we go by the first 2 criteria but not if we go with the third. It is likely that a court would go with the first interpretation but both of the others are arguable.

Consider a small faculty of 6 people, even split between democrats and republicans - it can hire as many independents as it likes but it can't hire either a democrat or a republican because that would shift the balance from 50:50 to 57:43: a 14% difference.

Now consider a large faculty with 62 republicans and 38 democrats (i.e. currently exceeding 10%) - it can hire whoever it likes because hiring either a republican or a democrat would not "cause" the amount to be exceeded because it already is. Now, a court would probably look beyond the badly written language of the statute to the legislatures intent so that hiring a democrat would be OK as it moved towards the balance being sought but hiring a republican is not.

Also, the ability of the faculty to count or not count independent's at their discretion is open to abuse. Counting independents makes it easier to hire a person of either affiliation since it dilutes the percentage. Not counting them makes it easier to exclude a member of the larger party.

| improve this answer | |
  • 1
    It makes little sense to take the percentage of a percentage in this context, so the phrase 'exceed by ten percent' means 'exceed by ten percentage points.' – sjy Feb 22 '17 at 15:50

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.