Professor Amy Wax at the University of Pennsylvania Law School is once again the target of students and faculty members who have ginned up a racial grievance against her. The issue is that she said something that is apparently true that her critics would rather remain unsaid. The immediate consequence is that Penn Law Dean Ted Ruger has stripped Wax of her teaching assignment in the mandatory First Year curriculum.
What Wax said, essentially, is that black graduate students at Penn Law do less well academically than other students.
Probably what lies behind Wax’s observation is that the Law School admits black students at a lower threshold of academic qualifications than it admits white and Asian students. That’s a guess, based on a lot of circumstantial evidence. The University of Pennsylvania is a private university and does not make available a racial breakdown of its admissions standards. Across the country, battles rage to get even public law schools to acknowledge the extent of the racial preferences they use to bolster the numbers of black enrollees.
Richard Sander and Stuart Taylor, Jr.’s book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help and Why Universities Won’t Admit It (2012) remains the definitive statement of the problem. (The National Association of Scholars is not a bystander on this issue. We just filed an amicus brief in Sander v. State Bar, an appeal currently pending in California.)
To understand why Wax’s simple observation would occasion such heated attacks against her, we must keep in mind the furious effort of will by proponents of racial preferences to deny the realities of the situation.
Cadmus and Company
Racial preferences in college admission are dragon’s teeth.
In Greek mythology, when the hero Cadmus kills the dragon that guards Ares’ spring, he plants the creature’s teeth, and up spring ferocious and fully-armed warriors. This odd bit of agriculture isn’t a freak occurrence. The hero Jason also plants a set of dragon’s teeth and likewise harvests a bunch of ill-tempered warriors. Dragon’s teeth is a handy image for what happens when we think we solve one big problem—an unfriendly dragon—but end up creating a collection of even worse problems.
When we deny that racial preferences result in classes in which many of the black students are less qualified and less capable than other students, we are sowing dragon’s teeth. The teeth come back as social justice warriors.
The warriors may silence the messenger, but that can’t extinguish the truth. In 2005, The New York Times published the results of a study that appeared in The Stanford Law Review that concluded, “Affirmative action actually depresses the number of black lawyers, because many black students end up attending law schools that are too difficult for them, and perform badly…. Once at law school, the average black student gets lower grades than white students: 52 percent of black students are in the bottom 10th of their first-year law school classes, while only 8 percent are in the top half. And the grades of black students drop slightly in relative terms from the first year of law school to the third.”
Professor Amy Wax stirred up controversy last August when she co-authored a newspaper op-ed in which she praised “bourgeois values.” She meant things like hard work and getting married before having children.
Some Penn Law School students and faculty members at the time judged Wax’s thoughts to be racially hurtful and demanded that Wax be punished. They lost that round. Wax had done nothing beyond the scope of her academic freedom, and she held her ground.
But her enemies are now back with a new plan to punish her—a plan that has been adopted in part by Dean Ruger.
In September, a few weeks after the famous “bourgeois values” op-ed article, Professor Wax mentioned in a lecture to first-year law students that she had never “seen a black student graduate in the top quarter of the [Penn Law School] class and rarely, rarely in the top half.”
Having discovered a video of this lecture, her critics drafted a petition addressed to Dean Ruger. The petitioners call Wax’s remarks “disparaging, false and deeply offensive claims.” They also assert that her broad statement (Wax mentioned no individuals) was a “clear violation” of “Penn Law’s anonymous grading policy.” And they called on Dean Ruger to “dispel the lies” in Wax’s statement; “Permanently remove Professor Wax from teaching 1Ls” (the mandatory first-year law course she has been teaching); “Permanently remove Professor Wax’s appointments to the Clerkship Committee, and any other committees that involve leading and directing the law school”; and take all these actions “publicly.”
Dean Ruger accordingly declared publicly that Wax’s statements are false. He wrote:
It is imperative for me as dean to state that these claims are false: black students have graduated in the top of the class at Penn Law, and the Law Review does not have a diversity mandate. Rather, its editors are selected based on a competitive process. And contrary to any suggestion otherwise, black students at Penn Law are extremely successful, both inside and outside the classroom, in the job market, and in their careers.
On its face, Dean Ruger’s statement seems to mean that Professor Wax got it wrong. But we shouldn’t forget that this is lawyer language, and it has built into it some curiously slippery clauses. Dean Ruger doesn’t actually say that Wax’s claims are false. He just says that “it is imperative” that he says they are false. The imperative is that he has a bunch of angry students demanding that he say so, regardless of accuracy. By golly, Dean Ruger is a man who lives up the imperatives, which may not include telling the truth.
As of this writing, no one—not the dean, and not the petitioners—has come forward with any evidence that Professor Wax’s comment was inaccurate. It presumably wouldn’t be hard to check whether any black students had graduated in the top quarter of their Penn Law School classes. I don’t suppose Professor Wax to be error-proof. But if there are one or several such graduates to be found, where are they?
Dean Ruger gave the protesters two more of their demands: he took Wax’s first-year course away from her, and he conducted his actions in public by issuing them as a widely distributed “message.”
The accuracy of Wax’s observation has been challenged, but by means of indignation and sheer assertion, not evidence. If it happens that evidence of overlooked students in that top quarter does emerge, it is likely to be the sort of exception that proves the rule. Clearly, no substantial number of black students are in this quartile. If there were, Wax’s statement would be laughed at rather than made the gravamen of an accusation.
Up from the ground in which the dragon’s teeth of racial preferences were buried have sprung the armed warriors desperate to defend racial preferences. These warriors want Professor Wax silenced, ostracized, and exiled. They may seem to have achieved a good portion of what they wanted, but I wouldn’t count on that as a long-term victory for their cause, or as a moment for Dean Ruger to bask in their approbation.
Professor Wax, who serves on the board of the National Association of Scholars, knows how to defend herself. The spectacle of students and faculty-driven to a kind of frenzy by the mention of facts deemed unmentionable is not likely to redound to the reputation of Penn’s Law School.
The public at large will understand the main point: Admit lower quality applicants to an institution of higher education, and the individuals so admitted will, on the whole, perform more poorly than those who are admitted according to higher standards. It is a hard truth. We have imposed taboos in higher education against talking about it, but that doesn’t change the reality. The taboo merely fuels the rage of those who have invested themselves in keeping up the illusion.
Image: Hendrick Goltzius, Cadmus fighting the Dragon