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Is UPenn's law prof the right litmus test for campus free speech?

Updated: Mar 13, 2023

At most US campuses, the faculty leans decidedly left, and expressing conservative views is a great way to find yourself thrown off the tenure track, denied funds for research, and/or vilified by students.

That's not to say that left-leaning academics shouldn't have every op to share their views with young "adults" (boy, do I use that term loosely), but rather they shouldn't receive better ops as folks who see things differently. Otherwise, the Socratic process never sees the light of day, and kids don't learn to think critically or for themselves.

Is Amy Wax representative of most conservative academics? NO! She's, in a sense, cherry-picked outlier selected by the left-leaning academic establishment as the petard to hoist their point? Conservatives are bad (& perhaps shouldn't be tolerated).

Just to lean into this, would I want to be in Amy's class? You bet I would. A great opportunity to debate her and examine with the class both sides. Sure, she's correct that Blacks generally score lower in many cognitive tests, but those same minorities who attend Charter Schools don't score less, and their IQs tend to be elastic and improve with the right educational ops.

The point is kids learn from lively debate and aren't brittle pieces of China that will break at the slight mention of anything controversial.

My father's generation entered adulthood with the "safe spaces" of the Pacific or Europe WW II Theaters. The Greatest Generation was forged out of adversity, not by being coddled by overprotective parents or educators.

UPenn Accuses a Law Professor of Racist Statements. Should She Be Fired?

Amy Wax and free speech groups say the university is trampling on her academic freedom. Students ask whether her speech deserves to be protected.

The University of Pennsylvania law school has been roiled by the statements of a law professor.Credit...Hannah Yoon for The New York Times

By Vimal Patel, NY Times

March 13, 2023

Amy Wax, a law professor, has said publicly that “on average, Blacks have lower cognitive ability than whites,” that the country is “better off with fewer Asians” as long as they tend to vote for Democrats, and that non-Western people feel a “tremendous amount of resentment and shame.”

At the University of Pennsylvania, where she has tenure, she invited a white nationalist to speak to her class. And a Black law student who had attended UPenn and Yale said that the professor told her she “had only become a double Ivy ‘because of affirmative action,’” according to the administration.

Professor Wax has denied saying anything belittling or racist to students, and her supporters see her as a truth teller about affirmative action, immigration and race. They agree with her argument that she is the target of censorship and “wokeism” because of her conservative views.

All of which poses a conundrum for the University of Pennsylvania: Should it fire Amy Wax?

The university is now moving closer to answering just that question. After long resisting the call of students, the dean of the law school, Theodore W. Ruger, has taken a rare step: He has filed a complaint and requested a faculty hearing to consider imposing a “major sanction” on the professor.

His about-face prompted protests from free speech groups, which cited one of tenure’s key tenets — the right of academics to speak freely, without fear of punishment, whether in public or in the classroom.

For years, Mr. Ruger wrote in his 12-page complaint, Professor Wax has shown “callous and flagrant disregard” for students, faculty and staff, subjecting them to “intentional and incessant racist, sexist, xenophobic and homophobic actions and statements.”

The complaint said she has violated the university’s nondiscrimination policies and “standards of professional competence.”

Her statements, the complaint added, “have led students and faculty to reasonably believe they will be subjected to discriminatory animus if they come into contact with her.”

Professor Wax has fought back, arguing that the university is trying to trample on her academic freedom.

Universities want to “banish and punish” anyone “who dares to dissent, who dares to expose students to different ideas,” she said on a recent podcast. “That is a really dangerous and pernicious trend.”

Professor Wax did not agree to interview requests, but at a time when scholars say their speech is under attack from the left and the right, many free speech groups, including the Academic Freedom Alliance, PEN America and the Foundation for Individual Rights and Expression, have criticized the dean and said that Professor Wax should not be fired because of her public statements.

“Academic freedom cannot be a privilege of those who only espouse prevailing views but a protected right of all faculty,” the Academic Freedom Alliance wrote in July to the university’s president, M. Elizabeth Magill, arguing that the school should end the process to sanction Professor Wax.

But for many students, her public speech, which often mixes public policy with insulting broadsides, is the point.

Students have asked: Aren’t these statements relevant to her performance in the classroom? Don’t they show the potential for bias? And does this professor, and this speech, deserve the protection of tenure?

Some students have wondered whether Professor Wax’s public statements show the potential for bias in the classroom.Credit...Hannah Yoon for The New York Times

Dean Ruger, who declined an interview request, seemed to embrace these concerns by including a litany of Professor Wax’s public statements in his complaint.

Free speech groups acknowledge that some personal discussions with students — if true — could be deemed abusive, and are not protected by tenure. But they have winced at the dean’s inclusion of public statements in his complaint.

Professor Wax is a test case of academic freedom, “right up on the line,” said Alex Morey, the director of campus rights advocacy for the Foundation for Individual Rights and Expression.

But, she said, “We have not seen any evidence that it crosses the line.”

She added, “Academic freedom has to protect the Amy Waxes of the academic world, so that it can be there for the Galileos of the academic world.”

Building a Public Profile

Professor Wax cut an unconventional path to Penn law school.

Raised in an observant, conservative Jewish family, she received a bachelor’s degree from Yale and a medical degree from Harvard.

On a podcast, she said she realized medicine was not for her, and in 1987, received a law degree from Columbia University. In the late 1980s and early 1990s, as an assistant to the U.S. solicitor general, she argued 15 cases before the Supreme Court. And after seven years at the University of Virginia, she joined Penn with tenure in 2001.

Though Professor Wax had been a subject of debate for years, student demands for sanctions began in earnest in 2017, after she co-wrote an opinion article in The Philadelphia Inquirer. She argued that many of the country’s social problems could be traced to veering from 1950s norms, like getting married before having children, respecting authority and avoiding coarse language.

The article said “all cultures are not equal” and lamented “the single-parent, antisocial habits, prevalent among some working-class whites; the anti-‘acting white’ rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants.”

After some students called for her firing, conservative media rallied, allowing Professor Wax to spread her views across the conservative firmament over the years, including writing for The Wall Street Journal and appearing on Tucker Carlson’s daytime show on Fox Nation.

Along the way, her rhetoric grew more extreme. She has described some non-Western countries as “shitholes” and stated that “women, on average, are less knowledgeable than men.”

Speaking with Mr. Carlson last year, she said “American Blacks” and people from non-Western countries feel shame for the “outsized achievements and contributions” of Western people.

On a recent podcast, she said, “I often chuckle at the ads on TV which show a Black man married to a white woman in an upper-class picket-fence house,” she said, adding, “They never show Blacks the way they really are: a bunch of single moms with a bunch of guys who float in and out. Kids by different men.”

She has also acted as something of a provocateur on campus.

In 2021, she invited a white nationalist, Jared Taylor, to a class and then lunch with students. She argued that he was an appropriate speaker for a seminar on conservative thought, according to a grievance she filed against Dean Ruger this past January and obtained by The Daily Pennsylvanian, the student newspaper. Mr. Taylor has said that “when blacks are left entirely to their own devices, Western Civilization — any kind of civilization — disappears.”

Throughout, the administration had supported her right to speak and took significant action only once, in 2018, in reaction to her comments on a podcast about affirmative action, when she said that Black students at the law school do not perform well.

“I can think of one or two students who’ve scored in the top half in my required first-year course,” she told the host, Glenn Loury, a professor at Brown University.

After some students objected, Dean Ruger disputed her data and took away her first-year course. She did not have a right, he said, to violate confidentiality about student grades.

Professor Loury, a Black economist known for his contrarian views, agreed in an interview that disclosing confidential student data to make racial comparisons would be unacceptable.

But, he said, Professor Wax did not do that — she was just engaging in “loose talk.” Perhaps, he said, a teacher should not discuss students that way.

“But violating privacy?” he said. “I think that’s a stretch.”

‘Finally, an American’

Many students, especially Asian, Black and Latino students, have described a series of what they say are racist incidents involving Professor Wax.

According to the university complaint, after a series of students with “foreign-sounding names” introduced themselves, Professor Wax commented that one student was ‘Finally, an American.’” She added, “It’s a good thing, trust me.”

In an investigator’s report obtained by The Washington Free Beacon, a student alleged that while repeating language used in a 19th-century case, Professor Wax said “Negro” in such a “snide and smug” way that the student left the classroom. And in the same report, a student said that in 2014, when discussing an eyewitness, Professor Wax said, “He was a Black man” with a “distasteful” tone. “She spat it out of her mouth,” the student said.

Mr. Ruger’s complaint also outlined an alleged interaction between Professor Wax and Lauren O’Garro-Moore, a 2012 graduate, saying that Ms. Moore was a “double Ivy” — attending Penn and Yale — only because of affirmative action.

In the complaint, Ms. O’Garro-Moore said she was “stunned” and wanted to cry but did not. Ms. O’Garro-Moore, saying she could be a witness in the hearing, declined an interview.

Some of these personal interactions may not be protected by tenure. And Ms. Wax has denied making many of these statements, including the “double Ivy” comment.

“In what class?” she asked on Professor Loury’s podcast. “What was the lesson? What was the context? Nothing is supplied” — echoing critics of the complaint, who have said it is vague and lacks transparency.

Students are often accused of being oversensitive, but Professor Wax’s colleagues have shared their own uncomfortable moments with her in public forums.

Tobias Barrington Wolff, a Penn law school professor, said that he once sat with her on a panel where she decried same-sex relationships as self-centered, selfish and not focused on family or community, according to Dean Ruger’s complaint.

Professor Wolff, who is gay, said that it was “striking she would choose to hold forth that way with me sitting there.”

Disagreements with Professor Wax, he added, make you feel that “you are a fundamentally debased human being.” Professor Wolff did not respond to an interview request and it is unclear whether he supports sanctions.

Even Professor Loury, a strong supporter of Professor Wax, has a story.

In 2011, he gave a talk at Penn law school in which he argued that too many Black people were in prison.

During the discussion, he said that Professor Wax, whom he did not know, raised her hand and said: There are not too many Black people in prison, there are too few.

Afterward, Professor Loury wrote an email to an event organizer, stating that her behavior was “openly hostile” and that he felt ashamed he did not respond forcefully enough.

Professor Loury, who frequently laments the oversensitivity of college students, said he would not send such an email now, because her comments were an opportunity for vigorous debate.

Even so, Professor Wax was “being performative,” he said, and “seemed to enjoy it a little too much.” He recalled, “She’s got this snarl on her face.”

In 2017, after Professor Wax had published her piece about 1950s values, Jonah Gelbach, then a professor at the University of Pennsylvania, organized an open letter signed by 33 law professors, rejecting her views about cultural superiority but affirming her right to state them.

He said that Professor Wax tried to pressure him to retract his letter, writing in an email that if he did not, she would publicize the negative online responses at an upcoming talk.

He declined, and she went through with her threat. In her talk, which has been viewed almost 40,000 times on YouTube, she portrayed him as a crusher of speech and an “anti-role model.”

Professor Gelbach, now at the University of California, Berkeley, said the encounter revealed how Professor Wax uses speech as sword and shield, portraying herself as the victim of cancel culture, while also trying to create “a safe-space bubble of protection from others’ reactions.”

Still, he does not support sanctions for her public statements. “I view Amy as both a scholarly embarrassment and a toxic presence at Penn and in the academy generally,” he said, but added, “She is nevertheless a tenured faculty member at a university, and I do not support university sanctions for public expressions of horrible views.”

The University Acts

In late 2021, on Professor Loury’s podcast, Professor Wax warned against an “influx of Asian elites.” He pushed back, suggesting that Asian engineers and computer scientists bring value to the United States.

“Does the spirit of liberty beat in their breast, Glenn?” she shot back, arguing that Asians tend to be “more conformist.”

Dean Ruger denounced her comments but once again resisted action.

A petition, started by Apratim Vidyarthi, who was then a student, demanded an investigation and stated that it was impossible to believe that Professor Wax would treat nonconservative, nonwhite students fairly. It garnered more than 2,500 signatures, including about 800 from the law school’s current and former students, Mr. Vidyarthi said.

Mr. Vidyarthi said that he and other students of color would not feel comfortable or safe in the two classes she continued to teach, on legal remedies and conservative thought.

Ty Parks, the advocacy chair for the Black Law Students Association, said having Professor Wax on staff sends a mixed message about the school’s commitment to inclusion.

“When we walk into the building of the law school, we see a portrait of Dr. Sadie Alexander, who was the first Black woman to graduate from Penn law,” Mr. Parks said. “Then down the hall, you have a professor who is a literal white supremacist.” (Professor Wax describes herself as a “race realist.”)

Mr. Parks rejected the argument that students were censoring her politics.

“We have conservative professors in the law school that I don’t agree with,” he said. “But they’re not making harmful remarks that are clearly racist. They’re not crossing those boundaries.”

Two weeks after the petition, after arguing for years that Professor Wax’s speech was protected by academic freedom, Mr. Ruger said he would begin a disciplinary process.

What Should Tenure Protect?

Many free-speech advocates say that Dean Ruger’s complaint overstepped by including the professor’s public statements.

Jonathan Friedman, an official at PEN America, said the idea that off-campus comments can lead to an investigation “is concerning.”

Those who want heavy sanctions, he said, “have to think about how the same powers can be wielded in other ways, against other professors whose comments can be deemed offensive or hostile.”

And some professors say her interactions with students are enough to warrant punishment.

“There’s a bright line between ‘I don’t like affirmative action’ and ‘You, African American student, only got in because of affirmative action,’” said Jonathan Zimmerman, a Penn history professor who had previously defended Professor Wax against calls for punishment.

The latter comment, if true, he said, is “singling out a student for abuse.” But students question the professor’s free-speech protections. Andrew Bookbinder, of the university’s Asian Pacific American Law Student Association, said Professor Wax was using tenure to be intentionally offensive in ways that do not further academic speech.

The process playing out at Penn, he said, “is the system working.”

“It’s not like a group of students has voiced their concern, and she’s been terminated,” Mr. Bookbinder said. There will be a hearing, he noted, with “her fellow tenured professors, who will surely hold those same protections very dearly themselves.”

Vimal Patel is a higher education reporter for The Times, focusing on speech and campus culture. He was previously a reporter for The Chronicle of Higher Education. @vimalnyt

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