The tenured law professor fights back against those seeking to crush her academic freedom.
When Orwell wryly observed that “During times of universal deceit, telling the truth becomes a revolutionary act,” he may well have had academia in mind. Challenging prevailing ideology can have a calamitous effect on one’s personal reputation and academic career—something especially true of faculty.
One ubiquitous ideology in academia today is diversity, equity, and inclusion (DEI). The campaign for diversity is based on an unproven assumption that diverse student populations are superior to homogenous ones, and that diversity not only benefits minority students but all students and the university as a whole. This belief is accepted by woke administrators as a given, but it is certainly still a topic that can be questioned, critiqued, and challenged by faculty.
DEI bureaucracies have another unintended, negative side-effect, namely, that minority students are counseled to see themselves as victims of systemic racism—both in their own universities and in the country as a whole. Students have quickly realized that once they are designated as victims and given a bucket of accommodations not enjoyed by their white and Asian peers, they have become emboldened to demand further concessions. One significant concession is the “right” not to be challenged or offended by the views of others that question the prevailing dogma on progressive campuses.
Actual racism—from faculty, students, and administrators—is so rare and benign that in order to identify it, university diversocrats and the victim-students they serve must assiduously ferret out examples of allegedly racist thought and behavior—including so-called systemic racism, invisible racism, triggers, microaggressions, white privilege, and, recently, instances when faculty or students have defended law enforcement or criticized Black Lives Matter. Any challenges to the prevailing orthodoxy of these victim-students and their administrative enablers are stamped down, attacked, and deemed racist. And when faculty members dare to question affirmative action, diversity, systemic racism, and white supremacy, the wrath of the woke mob is immediate and unrelenting.
One such faculty member is Amy Wax, Robert Mundheim Professor of Law at the University of Pennsylvania Carey Law School, whose career has been hobbled by an ongoing campaign for her termination. Even the law school’s dean, Theodore W. Ruger, joined in the fray by petitioning for Wax to be punished and possibly terminated, though she enjoys tenure.
In a June 2022 letter to the chair of the Penn faculty senate, in fact, Ruger contended that Wax’s “conduct demonstrates a ‘flagrant disregard of the standards, rules, or mission of the University,’” and he requested that Wax receive sanctions and possibly lose her professorship. Though he refers to Wax’s “conduct,” the reality is that he was critiquing her speech and views, not her behavior. In theory, at least, tenure protects faculty from punishment for expressing their views, even unpopular or controversial ones. But a tenured professor would not be insulated from censure if he engaged in conduct that could be seen as harassment, violence, or other impermissible behavior. Even though the campus woke like to assert that speech with which they disagree is actually “violent,” and therefore harmful, the expression of a faculty member—and especially one protected by tenure—is almost always protected speech.
Dean Ruger, a law professor, should know that Professor Wax’s expression is permissible and cannot be used as a basis for punishing or firing her. But that did not stop him from cataloging in his letter a long list of Wax’s alleged thought crimes and racist speech.
In making his case for Wax’s punishment, Ruger alleged that her minority students could reasonably feel she would assess their classroom performance unfairly:
In addition to the statements Wax has made directly to students or in class, her public commentary espousing derogatory and hateful stereotypes has led students to reasonably conclude that she is unable to evaluate them fairly based on their individualized merit rather than on unmistakable biases she possesses related to race, sex, national origin, and socioeconomic class.
Even more serious was the feedback Ruger sought and received from aggrieved minority students who claimed they could not even tolerate someone with Wax’s views being on campus. “Wax’s on-campus statements, the way she conducts her classroom, and the extreme and exclusionary voices she has inserted into the Law School’s curriculum,” Ruger claimed, “have led minority students to report feeling ‘marginalized, isolated, unsupported, and unprioritized’ and to reasonably conclude that her classroom is not an equal-opportunity learning environment.”
Wax may be controversial, but she is not an unlearned fringe character throwing ideological bombs into current debates. She earned degrees from Yale, Columbia Law School (where she was a law review editor), and Harvard Medical School, so there should be little doubt of her academic capabilities and intellectual prowess.
But Ruger ignored all of that, claiming that
The impact and harm caused by [Wax’s] on-campus conduct is exacerbated and intensified by her numerous and highly-publicized ‘academic’ speeches and interviews outside the classroom, which put forth a pseudo-scientific vision of white superiority and which students, colleagues, and others in this community are aware of and reasonably threatened by when they encounter her behavior and conduct on campus.
“Wax’s statements are a persistent and tangible reminder,” Ruger concluded, “that racism, sexism, and xenophobia are not theoretical abstractions, but rather real and insidious beliefs in this country and on our campus.”
Ruger’s campaign on behalf of “marginalized” law students to vilify Professor Wax has been ongoing since at least 2018, when she made observations in a video interview concerning the dark side of affirmative action: the failure of black law students to excel on her own campus. In the interview with Glenn Loury, an economist at Brown University, Wax brought up one of the flaws critics see in affirmative action programs, something known as the “mismatch effect.”
The subject of a book entitled Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It by University of California, Los Angeles law professor Richard Sander (and co-author Stuart Taylor), the mismatch effect is the result of black students gaining admission to law schools as a result of racial preferences, so that they are underprepared compared to their non-black peers. Because they then must compete academically with students whose educational background has equipped them for the rigors of law education, black students have performed poorly. As Sander put it, “nearly all blacks [are placed] at an enormous academic disadvantage in the schools they attend.”
In the video interview, Professor Wax noted that “I don’t think I’ve ever seen a black law student graduate in the top quarter of her classes and rarely, rarely in the top half.” This is true of many law schools which have aggressively recruited minority students in their zeal to have “diverse” and “inclusive” campuses.
Sander did not suggest in his research that black law students are less intelligent than their non-black peers or inherently unable to master the knowledge and skills required of lawyers. Of course, the race-sensitive, woke students and administrators at Penn assumed that this is exactly what Professor Wax meant, which is why the video caused such a furor and why the indignant mob sought to purge the law school of anyone who would question racial preferences in law school admissions.
Dean Ruger’s protestations aside, DEI bureaucracies were created to ameliorate the mismatch effect, so even though they continue to profess their belief in the efficacy of diversity initiatives, they could plainly see, if they cared to notice, that the system actually hurts minority students.
Now Professor Wax has decided to strike back and defend her academic freedom. Last month, Wax’s attorney, David J. Shapiro, filed an official grievance against Dean Ruger in which he claimed the dean “has grievously harmed Prof. Wax by seeking to punish her for deviating from a narrow set of acceptable opinions, thus effectively imposing a rigid orthodoxy of permissible speech and expression at the Law School.”
The grievance correctly noted the key issue here, that Wax is being punished for her thought and not her actions: “. . . the allegations in the charges do not concern behavior or actions but only expression. The only thing that the charges allege is that her speech and expressions of unpopular or controversial opinions require a major sanction, including possible loss of tenure and termination.” That type of sanction, of course, violates the fundamental precepts of academic freedom and free speech, especially for tenured faculty who have earned the right to speak their minds within a university community—regardless of how unpopular their views are.
Dean Ruger has allowed one group of Wax’s loudest critics—minority students—to decide what speech is acceptable and what speech may be suppressed in the name of DEI. But that is the wrong message for students, since it relieves them of the responsibility to challenge ideas with which they disagree. It is easy to win an argument when your opponent cannot speak, and future lawyers in particular have to be prepared to confront opposing views, marshal arguments to prove their own case, and come to conclusions based on an analysis of competing ideas and evidence. “Instead of instructing them on the importance of preserving her right to disagree with them on critical issues without penalty . . ,” the grievance correctly noted, “Dean Ruger has instead given in to a noisy group’s demands that Prof. Wax be penalized.”
“As the [1967 University of Chicago] Kalven Report and other pertinent materials make clear . . ,” the grievance concluded, “the proper response of University Members and leaders to unwelcome utterances by a professor is not to condemn her and certainly not to attempt to punish, penalize, silence, or exclude her. The response is not to try to impose an effective orthodoxy of opinion at the Law School and University by publicly moving to sanction her.”
Wax’s case also reveals the double standard in academia about who can say what about whom, a point that the grievance raised in demonstrating how the attacks on Wax amounted to selective prosecution, not a fair and balanced assessment of faculty speech. Speech from the woke left, even outrageous and toxic views, goes largely uncriticized on campuses, while conservative thought is subject to paroxysms of contempt and indignation. “Dean Ruger focusedhis ire on Prof. Wax because he disagrees with her politics and opinions,” the grievance asserted.
He would never and has never condemned or sought sanctions against a Member of the University who teaches that all white Americans are racists; that American society is irredeemably, ‘structurally,’ or‘systemically’ racist; that all consensual sex is rape; or who exposes students to the ideas that white people,men, or Jews are responsible for the problems plaguing the world or that antisemitism is an aid to andinstrument of Black community solidarity.
Combatting racism and helping facilitate the participation of marginalized and underrepresented students in university life are noble, well-intentioned goals. But enforcing a culture of so-called “anti-racism” as part of that effort, not to mention punishing and crippling the careers of faculty like Amy Wax who fail to conform to woke doctrines about race, is both misguided and contrary to the tenets of academic freedom.
“ . . . [T]here emerges,” the previously cited Kalven report concluded, “a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day, or modifying its corporate activities to foster social or political values, however compelling and appealing they may be.”
Penn Law should well heed that sage advice.
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