Wax Isn't Worth It
Dismissing tenured UPenn law professor Amy Wax would feel cathartic to many of her critics—but it would be disastrous for academic freedom
University of Pennsylvania law professor Amy Wax, whose tenured status is currently under review over complaints that her statements and actions have caused students harm, and that, as a result, this has neutralized her capacity to teach effectively, is a manifestly contemptible thinker.
That doesn’t mean I support the university’s attempts to get rid of her—I don’t.
I think the central charge—that Wax’s statements have caused students of certain backgrounds to expect they would not be treated fairly—is shoddy. Not because I think it’s outlandish to believe that Wax would be unfair in her evaluative capacity toward certain students, but because (1) a robust conception of academic freedom would maintain that offensive statements are almost always insufficient grounds for stripping a professor of tenure, and because (2) it’s a rationale that, if it were to be adopted more broadly, would prove easily and perniciously exploitable by university administrators and departments looking to torpedo a faculty member for holding views they find troubling.
To be sure, I think black, Hispanic, and Asian students would absolutely be justified in believing they would not be treated fairly by Wax. Here are some fun tidbits from a report on Wax’s behavior over the years.
When Wax was asked by a black student whether she agreed with the claim that black people are inherently inferior to white people, Wax said “you can have two plants that grow under the same conditions, and one will just grow higher than the other.”
Wax told a black student she had only become a double Ivy “because of affirmative action.”
In an email to a black student, Wax said that if “blacks really and sincerely wanted to be equal, they would make a lot of changes in their own conduct and communities.”
In one of her classes, Wax asserted that “Mexican men are more likely to assault women,” and that this characterization should be as well-accepted as “Germans are punctual.”
In class, after a number of students with “foreign-sounding names” introduced themselves, a student with a “more American-sounding name” (to Wax’s ears, at least) also introduced himself. In response, Wax said, “finally, an American,” and then, “it’s a good thing, trust me.”
Wax routinely says things like: In the future, America will be “better off with more whites and fewer non-whites.” This is obviously a deplorable thing to believe.
But short of being able to prove she has actually discriminated against a student of color in her evaluative capacity (for example, in her assignment of grades as opposed to in her expression of her own views), Wax ought to enjoy, as a tenured professor, the freedom to hold and express social and political positions—even morally odious ones—without fear of being canned.
As disappointing as this may sound to students who correctly detect transparently racist ideas undergirding Wax’s views, immunizing Wax against dismissal is a necessary bulwark against intellectual suppression. Protecting academic freedom is of paramount importance.
What makes this case appear tricky, or at least trickier than it actually is, is that some of her statements are indeed suggestive of someone whose racial animus actually is effectively keeping her from being able to treat students from all backgrounds fairly—whether wittingly or not. Wax reportedly claimed, “I don’t think I have ever seen a black student graduate in the top quarter of the class, and rarely, rarely, in the top half. I can think of one or two students who scored in the top half of my required first-year course.” The UPenn law school dean, who is in a position to verify a claim like this, publicly refuted it. Which means that if Wax is erroneously underrating the performances of her black students in public, why would it be unthinkable to imagine that she’s evaluatively underrating them in private, i.e., in her gradebook?
I’m not claiming she’s lying; on the contrary, I’m giving her the benefit of the doubt and tracing the logic of what it would mean to believe that she simply made a mistake here. And that’s precisely what’s so potentially damning about a statement like hers: if it was indeed an honest mistake, it suggests that Wax’s belief in the inferiority of black students caused her to downgrade their performances in her mind—so unless she’s using a “blind grading” technique, the same could be happening in her evaluative supervision of these students. Her racial animus could be affecting her capacity to dispassionately evaluate them.
Still, there are ways to address a problem like Amy Wax without setting a precedent that could sink academic freedom as we know it.
One, which the university has already taken in Wax’s case, is to strip the offending professor from teaching required courses, which is by no means a right conferred on a faculty member upon receiving tenure.
Another is to apply additional scrutiny to her curricular decisions, such as require any invited guest lecturer or discussion leader to be cleared by the university first. Wax once invited Jared Taylor, an unabashed white supremacist, as a guest speaker in one of her law courses. Wax defended this decision on the grounds that it was for a course on conservative legal theory, but the idea that she can’t survey this subfield without bringing in the guy who said “Blacks and whites are different. When blacks are left entirely to their own devices, Western civilization—any kind of civilization—disappears.” is absurd. Protecting academic freedom doesn’t require allowing professors to bring anyone they want to address their students.
Yet another is to subject Wax’s evaluative judgments to a kind of performance review—that is, to convene a panel who could determine whether racial bias is present in her grading. I don’t like this option at all, as it could be bureaucratically weaponized against any faculty member whose views ruffle the feathers of students or peers.
Even if you think Wax’s statements and actions fall outside of what any reasonable model of tenure should allow, the decision to fire her would be troubling on purely precedential grounds alone. When we draft rules and policies, or make judgments that can become precedents for future conflicts, we need to be mindful not just to get the current case right, but to avoid inadvertently enabling future injustices. For example, a law that is insufficiently precise may well help us get the target situation right, but it can also, on account of its vagueness, pave the way for future wrongs to take place. If you think Wax should be dismissed, but the way you justify that decision underwrites campaigns against professors x, y, and z to also be dismissed, you better be prepared to swallow those decisions as well.
One reason cases like this tend to be so frustrating is there is a certain intuitive logic to the university’s complaints against Wax. In what other profession could you tarnish your employer’s reputation with complete impunity? In what other profession could you dehumanize a subset of your own “clientele” and remain in good standing?
Yet academia is not like any other profession—and I don’t say that in a sort of chud-right dismissive register. Academia is not like any other profession in that the interest it has in enabling the free expression of ideas trumps reputational considerations to the universities themselves. If we go all in on the latter, we inevitably cancel out the former.
Wax is deplorable, but academic freedom is far too precious to surrender just to oust her.
I think that this is certainly the right way to frame this issue, and the argument reaches what I see as the right conclusion: academic freedom protections are essential to US higher education and need to be applied regardless of speech content (except when speech becomes action, as defined by court precedents).
One additional solution available to Penn that could be mentioned is that grading responsibilities in Professor Wax's courses could be assigned to a third party, such as another member of the Law School faculty. There is, of course, a cost, and Professor Wax would be being relieved of a burden, but I have seen this solution applied in a similar case elsewhere, and it is effective in relieving students considering enrollment of any anxiety about unfair grading.
My one point of disagreement concerns the need to approve guest speakers. So long as there is a rationale for inviting the speaker that is germane to the course subject, I don't think any professor's academic freedom rights should be curbed on that score at this point (I can imagine an even more dystopian tomorrow where I'd feel differently). Jared Taylor is a very good example to choose. Taylor is well educated, articulate, and respected beyond, I think, any other member of the intellectual alt-right. His views are as described, but he frames them in ways that make debate challenging, not least his urbane and civil manner. It seems to me you could hardly design a more effective learning exercise for law students than one that says, "Listen to this person carefully and then devise a question or brief comment that will effectively expose how one of his arguments is wrong." It is true that had Professor Wax invited a bomb-thrower like, say, Nick Fuentes or (somehow) Andrew Anglin to class, there would have been no intellectual challenge and an increased risk of counterproductive incivility. But Wax did not invite someone like that, and would, I think, be unlikely to do so because of academic norms that generally govern faculty of all political views (not to mention because of security issues involved). I don't see that the Wax case itself requires us to constrain academic freedom in the realm of guest speakers.
The grading in traditional American law school courses differs from everything else in two ways.
First, the grade is determined entirely by only a single final exam; there are no quizzes, no midterms, etc. Even class attendance and participation are not considered.
Second, the grading is "blind" in that students are given a code (usually a number) to write on their final exam and admonished not to identify their work by any other means. Typically, the test proctor(s) are also responsible for verifying that each exam has only a code as an identifier before they are given to the professor for grading. Finally, the professor submits the coded grades and exams to the school administration; once grades are assigned and published, the exams are held for a period and then destroyed.
Under this system, which (per ABA guidelines) would likely be used for any required class, such as the one taught by Wax, it would be difficult for a professor to materially act upon their prejudices, and far more difficult to build a compelling bias case against a professor.
At least, that is how it was done at the University of Illinois school of law when I was there.
Funny sidenote: because of these grading restrictions (and the fact that courses followed the book so closely), we were able to get away with utterly laughable class attendance and preparation habits. A very close friend of mine had a class that met three times a week, for fourteen weeks. He attended a grand total of seven times. That isn't even fifteen percent. He got a B plus. (The class in question was legal ethics, but that is another story).