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  • Writer's pictureRBSonnenmoser

Wax Critical

Updated: Mar 31, 2023


Amy Wax, an otherwise unremarkable law professor, has been much in the news. Not for scholarly breakthroughs or contributions to her field but rather statements she’s made on podcasts and at conferences, editorials she’s written, the resulting (inevitable) petitions asking for her dismissal, and, more recently, a complaint filed by Theodore Ruger, the Dean of the University of Pennsylvania Carey Law School, which has prompted a review—for potential sanction—of Wax by her faculty peers.


The headlines might lead reasonable readers to conclude that Wax, who back in the day argued cases before the Supreme Court, is being hounded from her university teaching position because of her otherwise protected free speech: the racist and xenophobic and generally wrongheaded things she’s said in these podcasts, editorials, and interviews.


Closer to the truth: As Dean Ruger says in his statement from January 2022, “complaints” made against Wax over the past few years “clearly call for a process that can fairly consider claims . . . that her conduct is having an adverse and discernable impact on her teaching and classroom activities.”


The question isn’t so much whether Wax has said things that are offensive—she has —as whether the total pattern of Wax’s beliefs and behaviors have impaired her ability to be an effective and ethical teacher. Has her American Renaissance-styled “race realism” spilled into her classrooms and made her unfit to teach?


 


In “Bad Attitudes, Unnatural Acts,” an essay from 1990, Carolyn Marvin describes how and why she burned an American flag in a communications course at the University of Pennsylvania. When she escorted her class outside during the first meeting of the fall semester in 1989, she did so to demonstrate—to vividly enact—a course concept; she was conducting a lesson on the boundaries of free speech.


Her students, many of whom disagreed with her choice to burn the flag in the moment and even tried to physically prevent her from doing so, overwhelmingly felt by the end of the course that their professor had made a wise pedagogical choice. Marvin reports in her essay that she received perfect scores on her student evaluations of teaching. The flag-burning exercise, and its aftermath, raised the intellectual energy for all. No one, Marvin tells us, dropped the class. Many students, perhaps having felt the high-minded buzz on campus, hopped on the waitlist.


Freedom of speech would have allowed Carolyn Marvin to burn an American flag on her own time, at, say, a public protest.


Academic freedom allowed Carolyn Marvin to burn an American flag during class because it served the educational mission of the course.


Which is another way of saying: Free speech and academic freedom are related concepts—one undergirds the other—but they’re not perfectly synonymous.


In the U.S., free speech tends to be a matter between you and your government. If you feel that your free speech rights have been violated, you likely believe the government has overstepped its constitutional authority. You believe Congress has made a law abridging your free speech when “Congress shall make no law . . .”


Academic freedom, at least for tenured professors (like me! like Amy Wax!), is ideally between you and your colleagues, your professorial peers. Your students matter, too, of course, because they’re in your classrooms much more than your peers are, and so that makes them first-line quality-control agents; students are the ones who might “throw the flag.” Your professorial peers are—or should be—the refs who have to make the final call.


One of the (unsurprising) responses to the faculty inquiry into Wax, as captured in Vimal Patel’s well-reported NYT article: “[Dean Ruger’s] 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.”


I sympathize with Patel’s desire to keep the writing concise. But there’s a problem here. Individual academics don’t really have the “right . . . to speak freely” in their classrooms, at least not absolutely. When I step into a university classroom as a professor, I have a right to speak relatively freely. If that day’s lesson has nothing to do with free speech, I’d be wise not to burn any flags.


Here’s a revision that makes the writing more cumbersome, certainly: “one of tenure’s key tenets—the right of academics to speak freely, without fear of punishment or interference by outsiders, especially the government, corporations, religious and special-interest groups, whether in public or in the classroom, as long as that classroom speech falls within the mostly implicit and sometimes explicit boundaries of the academic discipline and the almost entirely implicit peer-determined norms of academia.


(No wonder I’m not a newspaper editor! I’d never pass the concision test!)


Not surprisingly, many of us employed by universities disagree about what exactly those peer-determined norms should be. Here’s how Keith Whittington, a prominent thinker on academic freedom at Princeton University, frames the boundaries of acceptable classroom conduct and speech:


[P]rofessors are allowed to denigrate groups of people in such a way that students might fear that they will not be treated fairly in the classroom. Professors are not allowed to in fact treat students unfairly. They are not allowed to single out and harass students in the classroom. They are not allowed to assign poor grades or diminish a student’s participation in class because of professionally irrelevant factors, such as the student’s race or political preferences.

Phyllis Wise, the former chancellor of the University of Illinois Urbana-Champaign, draws a different line. In her message to her campus about the decision to rescind a job offer to Steven Salaita—after some of his tweets about the 2014 bombardment of Gaza by Israel caused a stir—Wise explains “[w]hat we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.”


(Important to note: Steven Salaita eventually settled his lawsuit with the university for $875,000. Phyllis Wise resigned from her position after it was discovered that she hid or destroyed emails and other documents related to the case.)


I’m ambivalent about these two positions.


Wise’s desire to protect “viewpoints themselves” from “disrespectful words . . . that demean” is untenable—and incompatible with academic freedom. Viewpoints obviously have to be demeaned all the time in academic life. (In a moment, I’ll be demeaning some of Amy Wax’s.)


But I also wouldn’t want to give every professor carte blanche to “denigrate groups of people,” especially if that denigration causes significant dilution of the rights and academic freedoms of the students in the classroom.


I’d like to suggest a different approach.


Both Wise and Whittington formulate a rule independent of context. A universal rule might be pleasing, even “best practice,” but my reading of the history of academic freedom cases suggests that, in reality, on the ground at various universities over the past 100 years, the professors who have kept their jobs—or won their lawsuits—tended to be 1) full-time faculty with tenure 2) whose conduct fell within the peer-approved community standards of the time.


The peer-approved community standards in 2023 at many universities, likely including Penn, don’t tolerate classroom speech, especially classroom speech that’s coming directly out of the professor’s mouth, that is openly antagonistic toward students in the room, especially if that antagonism is rooted in the students’ race, sexual orientation, gender, disability, nationality, or religion.


Derogatory statements—especially if spoken by the professorabout students’ races or nationalities or genders, of course, is not all that would be anathema to the community standards. And exploring some scenarios that don’t involve racial essentialism will help, I think, to better understand a case—Amy Wax’s—that does.


 

Earlier I used the phrase “one undergirds the other.” Free speech undergirds academic freedom. That’s true. But maybe it’s easier to imagine the relationship between the two concepts as overlapping in some places but not others.




For example, I have a free speech right to read The 1619 Project: A New Origin Story. Congress cannot—and should not!—pass a law saying all copies of this book must be burned, or that anyone found to be reading it will be fined or imprisoned. Likewise, the government, my university’s governing board, and its upper-level administrators cannot prohibit me from teaching essays or poems from this book in, say, Intro to Creative Writing. (University presidents and chancellors and provosts are not powerless, by any means. But when it comes to understanding the community standards in any given discipline or course, what qualifies as legitimate and therefore protected academic speech, the higher-ups’ opinions simply aren’t as close to ground as my students’ and my peers’.)


The First Amendment to the U.S. Constitution gives me the right to read The 1619 Project at home, at the library, at a coffee shop, even aloud in the public square.


My professorial colleagues, my peers on the faculty, especially my fellow professors of creative writing, guarantee my right to teach the essays and poems in The 1619 Project in a creative writing course.

But if I change up the scenario, academic freedom likely doesn’t protect the right to teach this particular book. A colleague might not be wise—nor protected by academic freedom—to assign The 1619 Project in College Algebra or Invertebrate Biology.


The context really does matter. A biology or math professor could certainly mention the book, even recommend it—or, I suppose, discourage students from reading it—in, say, a two-minute aside during a class meeting. The trouble starts when the professor persistently intrud[es] material which has no relation to their subject,” especially if that material is “controversial.”


Let’s try another example. I don’t believe I would get my fellow professors’ blessing if I tried to teach, say, a lesson on point of view in Intro to Creative Writing that relied on video clips of pornography projected on the screen in the classroom. And the primary reason why not: Forcing my students to watch pornography is not relevant to the similarities and differences between first-person and third-person limited points of view in writing fiction. It’s not relevant for learning in that course.


Some might object that Amy Wax’s utterances in the classroom have mostly been relevant to the subject matter of the course. So, our last example involves a professor of education who has strong opinions about a law affecting education, Title IX of the Education Amendments Act of 1972.


When a student is a complainant in a Title IX investigation, federal law requires those students to be provided supportive measures to restore equal access to the university’s education programs and activities.


Sometimes, this means that the professor is notified, usually through the campus’s designated Title IX officer, that that student has asked about or requested such supportive measures: maybe an opportunity to retake an exam or make up a missed assignment. Federal law limns the professor’s behavior to some extent about providing, within reason, such supportive measures.


Our hypothetical education professor has strong personal and scholarly opinions about Title IX. In particular, the professor has written extensively about the irrelevance of Title IX. Let’s assume, for the sake of our example, that the professor complies with the law by providing supportive measures as requested.


If we understand what the professor can say in class as “free speech,” then the professor wouldn’t be out of bounds in describing the supportive measures as “stupid” and “unfair.” He could gaze meaningfully at the students in the room who have recently made requests for supportive measures as he says these words. The professor could expound upon how certain unnamed students in the room have recently requested such measures, and how everyone else, because of the intrusive federal government and these students-who-shall-not-be-named-but-we-all-know-who-I'm-talking about, is not getting a fair shake. Allowable under a free-speech standard: announcing publicly the extended due date for an assignment “for those of you who have recently been raped.” Or even saying something vile like “Everyone in this room who has been recently raped, you should know that I think a lot less of you.


Of course, a good professor would not say such things. (An argument could be made, too, that a good professor would not think such things, but I’m going focus primarily on what is said in the classroom.)


The academic community determines what is acceptable and unacceptable about how we talk to the students in our classrooms.





The professors in any given discipline socially construct and implicitly accept and then, if they have to, enforce their own community standards.


The aegis of academic freedom, for better or for worse, is the academic community.


 

A confession: Once in a while, during the Obama administration, I’d watch Hannity. Usually I’d only make it through the opening monologue and the first segment before I felt compelled to change the channel, but occasionally I’d make it to the end of an episode. As a college student, especially in the months after 9/11, I’d sometimes watch The O’Reilly Factor with my friend Nick while we did our homework. I had a job in my early 20s that required highway travel, and, here and there, on afternoons when I had to drive for an hour or more, I’d spend twenty minutes with Rush Limbaugh.


Resistance training for the political imagination. Heterodoxy as a muscle.


Listening to these characters (given recent revelations about the dissonance between the on-air pronouncements and the off-air text messages of Tucker Carlson et al, the word characters seems most apt) never entirely persuaded me to change my mind about political and social matters, large or small, but it did give me a better sense of what others might be thinking about that I was not. Watching Hannity once a month acquainted me with a universe of concerns and commitments I didn’t share.


So, that was the intellectual posture I was attempting to resuscitate, the muscle-memory I wanted to summon, when last night I read Amy L. Wax’s Race, Wrongs, and Remedies: Group Justice in the 21st Century (2009). I wanted to read with an open mind, to give Wax a fair chance. Luckily, my university library had the ebook. I didn’t have to pay for it.


Race, Wrongs, and Remedies is small—in all ways. It’s slim: 140 pages. More importantly, its thinking is small. Its primary argument is underdeveloped, with obvious rhetorical gaps, places where it ignores its own premise or fails to investigate or support its own claims. It operates by assertion more than the development of evidence and the marshalling of that evidence in support of its thesis.


Wax’s book argues that attempts to achieve “social justice” are misguided. She believes the Black community in the U.S. should embrace a program of “self-help.” The particulars of this program of self-help are not developed in any detail.


Her argument relies on a parallel drawn between race in America—specifically, what should be done about the 350+ years of societal injustices against Black people, from slavery to the sharecropping economy and Jim Crow to discriminatory federal housing laws (though, to be clear, Wax doesn’t herself discuss any of these things, or delve into any historical facts or provide any historical interpretation)—and the law of remedies.


Specifically, the rhetorical backbone of Wax’s argument is an analogy: the “Parable of the Pedestrian.” Here it is: A pedestrian is hit by a car. The driver of the car ran a stoplight. The accident is unambiguously the driver’s fault, and the pedestrian suffers severe spinal damage as a result. He cannot walk. In order to regain full use of his legs, to be returned to his “rightful position,” the victim would and should seek remedial relief. The remedial ideal, as Wax points out, is that “[r]elief should be structured to put the victim in the place he would have occupied if the harm had never been inflicted.” In this case, that driver would likely be made to pay monetary damages sufficient to cover the victim’s “medical bills, his lost income, and the cost of his stay at the rehabilitation center.”


The parable isn’t a perfect fit—centuries of oppression being compared to, well, a two-second event in an intersection—but at least it raises a useful question: What is the apt societal remedy for centuries of unjust treatment and oppression?


Wax never really answers this question. Or, rather, she sidesteps this question by abandoning the first part of the parable and focusing her attention for the rest of the book on its second half, so she can blame Black Americans for anything and everything that she believes ails Black America.


Here is the part of Wax’s parable (P is the pedestrian and D is the driver) that her book—superficially—explores:


To compound the unfairness, the very accident that physically injured P and deprived him of the ability to walk has also caused him to become depressed, despondent, angry, resentful, and defeatist about the prospect of recovery and about his future. He has fallen into a psychological slough of despond. The accident has sapped his will. Not only has it deprived him of the use of his legs, but it has also seriously compromised the means to recover use of his legs.

Remember, as you read the parable, that P stands not only for the pedestrian in the story but also, symbolically, the group Wax refers to throughout the book as “blacks.” Also important to note: The book never develops this idea of the “despondent, angry, resentful, and defeatist” Black community. Wax simply assumes that her readers might believe this description to be accurate, that we’ll connect the dots for her and nod our heads. Here’s more:


That P must actively participate in his own recovery adds to his psychological distress. Discouraged and outraged, P inveighs against the forces of fate and the injustice of it all. The accident was not his fault. He is entirely blameless. Why should he have to exert all this effort and engage in so much sacrifice? The pedestrian resists the conclusion that his recovery depends on his own efforts. […] P’s therapist commiserates. It is indeed unfair. But no matter. The therapist points out that D has, in effect, done his part—he has done everything he possibly can to enable P to recover.

I suppose Wax views herself in the role of the therapist here. She’s the truth-teller who has arrived on the scene to explain that the driver has “done his part . . . everything he possibly can to enable” the injured pedestrian to recover.


This reminds me of another parable. Let’s call it the Parable of Immediate Healing, from Ta-Nehisi Coates’s “The Case for Reparations”:


Indeed, in America there is a strange and powerful belief that if you stab a black person 10 times, the bleeding stops and the healing begins the moment the assailant drops the knife. We believe white dominance to be a fact of the inert past, a delinquent debt that can be made to disappear if only we don’t look.

Because no amount of cash could possibly help a person in a “slough of despond,” the only solution: he must help himself. So, Wax argues, that’s what Black Americans should do in response to centuries of oppression and mistreatment: get over it . . . by getting married!


(Even on the question of increasing marriage rates as a part of a solution to social inequalities—which is an argument that, though I’m skeptical, I could keep an open mind about—Wax is light on facts, light on reasoning. She doesn’t engage with scholars who study marriage or the effects on children of various living arrangements. She doesn’t delve into any of the findings of sociologists and psychologists and other academics who study children and families. The endnotes indicate that Wax has maybe read a few books and articles in preparation for writing her own, but she doesn’t really, you know, dig in to any scholarly source.)


To put it mildly, I have reservations about Wax’s approach, and a lot of initial resistance. But that’s sometimes par for the course in academic arguments. As I read the first thirty and then sixty pages, my default academic posture: await persuasion.


But Wax fails to persuade. She fails to even make the basic moves of persuasion. For the rest of the book, she succumbs, it seems, to that “strange and powerful belief” described by Coates. In this case, her belief that racial discrimination is in the distant and inert past—while simultaneously showing all of us that it’s alive and spitting in her own mind—causes huge rhetorical whiffs.


On a major question of remedial relief, reparations, Wax devotes about 900 words over seven paragraphs. That’s it. The prose in the first two paragraphs is so stilted that I was initially quite confused, but I believe these early paragraphs indicate the law of remedies would call for reparations to Black Americans, or maybe only the descendants of slaves. But then, without delving substantively into the issue, without exploring the international history of reparations more broadly (see, for better arguments, Ta-Nehisi Coates’s brief but fulsome discussion of cash reparations delivered by West Germany to the new state of Israel in “The Case for Reparations” or Walter Benn Michaels’ discussion of reparations in The Trouble with Diversity), Wax simply turns on a dime and concludes that reparations are a nonstarter because


. . . money has no proven effect on behavior. It does not guarantee a new outlook or greater effort. It does not ensure that talent will be developed. Indeed, reparations will almost certainly achieve very little. As the parable of the pedestrian illustrates, money is ineffective if the victim’s failure to act limits progress.

I get what she’s saying: Teach a man to fish . . . But, if we follow her logic, wouldn’t that entail dismantling a big part of our system of justice? Wouldn’t judges need to tell victims of identity theft that they weren’t entitled to compensation; they should simply work at getting better at coming up with passwords? Burglary victims would be told that getting a better lock and a meaner-sounding dog, not restitution from the perpetrator, is all that the court can recommend. The families of murder victims would be told: A wrongful death settlement wouldn’t really help with your “slough of despond,” so you get, as everyone gets these days, nothing.


Wax is likely not recommending that we abandon tort law altogether. Which means, of course, that something more sinister is lurking beneath her argument: She’s implying that one group of citizens does not deserve equal protection.


Wax mentions—in one sentence—reparations paid by the U.S. Government to the Japanese Americans who were taken from their homes and placed in internment camps. Doesn’t a scholarly book about remedies—i.e., reparations—have an obligation to discuss in some detail historical instances of such remedies? Even if Wax doesn’t think the U.S. was wise to make reparations to Japanese Americans, her criticism of that decision might, you know, illuminate her present argument.


I’ve read better developed arguments about reparations for slavery—both for and against—by first-year college students.


Wax devotes roughly twice as many paragraphs and words to affirmative action as she does to reparations. But her discussion of affirmative action reads much more like an introductory section of a scholarly chapter than a full treatment.

Wax acknowledges the “many methodological problems with assessing the efficacy of affirmative action, including the difficulty of documenting the extent to which it is practiced in education, employment, or other sectors.” In other words, she doesn’t really know—and she hasn’t tried to find out—what’s actually happening in the U.S. when schools and employers and the government implement “affirmative action.” Further, she doesn’t know what, whenever such practices are attempted, they’re accomplishing.


A responsible scholar would either 1) Do the work to investigate the question, or 2) Not draw any conclusions because she hasn’t performed a sufficiently rigorous investigation.


Wax isn’t a responsible scholar. She goes ahead and draws conclusions about things she hasn’t studied and doesn’t know much about. She confidently proclaims that “the data suggest that reverse discrimination is particularly strong in education, especially at the college level.” What data? Are we talking all colleges and universities? Only highly selective institutions? Would Wax include, as “reverse discrimination,” practices such as modest diversity scholarships at public universities? What about initiatives that aim to recruit more students of color but don’t actually modify admissions criteria? Wax is a law professor. Why not discuss the history of Supreme Court decisions that weigh on the issue? Why not get specific about what, in light of those decisions over the past 40+ years, colleges and universities are actually doing under the banner of “affirmative action”?


I kept waiting to see the words After the Bakke decision . . . They never appeared.


These sorts of scholarly omissions (more accurately: scholarly negligence) are not confined to the discussion of reparations and affirmative action. For instance, when there’s clear evidence in American society of present-day, not-in-the-inert-past racially discriminatory behavior—in “predatory lending” practices, for instance—Wax discards the law of remedies. Or forgets she talked about it. She claims that allowing “members of protected minority groups . . . to sue auto dealers for loan charges in excess of competitive market rates” would be a mistake because such a response to racial discrimination in the marketplace “shelters car buyers from their own folly rather than prodding them to wise up.”


What to do about that drunken driver who keeps speeding down my residential street, sometimes on my sidewalk? Call the police? Ask my legislator to revisit the laws that discourage drunk driving? Get a conversation started about the drinking age? Hell, even get a neighborhood group together to talk about an intervention by the citizenry? Wax’s answer would be something else: the residents should simply “wise up” and not let their kids go outside.


About the known intellectual and moral failures of scientific racism, Wax is incurious. She doesn’t investigate (or even mount a defense of) the methodology of Charles Murray and Richard Herrnstein’s The Bell Curve. She just assumes that we’ll be fine with it, that readers will assume she’s relying on an unassailable source. She declares the “science on this question”—whether “group cognitive differences,” as measured by IQ tests, “are even partly based in biology”—“is inconclusive.” Blithely, Wax concludes, in the distanced, “objective,” and therefore wooden prose that dominates the book, “At this point it is not known whether different groups are equally endowed with all the abilities that make for success in modern technological societies.”


Look, Ma: a 21st-century eugenicist!


There are no extended examples.


There are no substantive engagements with other scholars.


The prose is lifeless: a daisy-chain of “logical reasoning” that moves mostly between stereotypes, nominally “objective” statements, and assertions without evidentiary support.


Her argument is as maddening as it is myopic.


Her book is as poorly made as it is morally bankrupt.


 

Tenured professors can write garbage books.


They can, on matters of public concern, say all manner of garbage things in the public square.


But a tenured professor’s garbage ideas can be and should be kept out of the classroom. That’s where the community standard, which is well short of absolute free speech, most certainly applies.


Most of the attention, as you might imagine, to the Wax case has focused on her op-eds, interviews, and speeches at conservative political conferences. This is extramural speech: speech about matters of public concern, the sort of speech to which, as citizens, we all have a right. And it deserves, under principles of academic freedom, rigorous protection. Here’s a relevant passage from the AAUP’s Statement on Extramural Utterances:


The controlling principle is that a faculty member's expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member's unfitness to serve. Extramural utterances rarely bear upon the faculty member's fitness for continuing service. Moreover, a final decision should take into account the faculty member's entire record as a teacher and scholar.

In many cases, an analysis of “the faculty member’s entire record as a teacher and scholar” benefits that faculty member. Being a good scholar and a good teacher might earn the professor who has, say, posted something controversial on Twitter some grace. Following the AAUP’s guidance—especially the “rarely” and “entire record” caveats—makes it less likely that otherwise good teachers and insightful scholars will be fired over controversial public-square expressions that have caused P.R. headaches for administrators.


Uniquely, the case for Wax’s fitness will likely be undermined by an examination of her entire professional record. Her scholarship and extramural utterances provide credibility to the student reports of Waxs classroom speech. Wherever she is, it seems, she quacks like a white-supremacist duck.


About Wax’s teaching, all of us who haven’t been her students—or who haven’t observed her—obviously have limited information.


We know only a few things. First, we know that Wax’s Race, Wrongs, and Remedies is on the required reading list in her Conservative Political and Legal Thought course. (I’d be surprised to find it on other law school professors’ syllabuses for similar courses, but, to be fair, Professor Wax has tenure and an endowed professorship at a prestigious law school, which proves that surprising things do sometimes happen.) At the final meeting of the yearlong course, a discussion of race and identity, students discuss Wax’s book alongside a few other reading assignments, including excerpts from The Bell Curve. Recently, Wax invited a guest lecturer to the class, Jared Taylor, the founder of The New Century Foundation, which the Southern Poverty Law Center describes as “a self-styled think tank that promotes pseudo-scientific studies and research that purport to show the inferiority of blacks to whites—although in hifalutin language that avoids open racial slurs and attempts to portray itself as serious scholarship.”


Sound like anyone else we might know?


And we can read the complaints, as collected in Dean Ruger’s letter to the Penn Faculty Senate, about what Wax has said to her students, not as a fellow-citizen in the public square but as a teacher. Here’s a sampling:


  • “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.’

  • “Telling Black student Ayana Lewis L’12, who asked whether Wax agreed with panelist John Derbyshire’s statements that Black people are inherently inferior to white people, that ‘you can have two plants that grow under the same conditions, and one will just grow higher than the other.’

  • “Telling Jaime Gallen L’12 that Black students don’t perform as well as white students because they are less well prepared, and that they are less well prepared because of affirmative action.

  • “Emailing Gregory Berry L’10, a Black student, that ‘[i]f blacks really and sincerely wanted to be equal, they would make a lot of changes in their own conduct and communities.’

  • Commenting in class that gay couples are not fit to raise children and making other references to LGBTQ people that a student reported evinced a ‘pattern of homophobia.’

  • “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American’ adding, ‘it’s a good thing, trust me.’”


This is a troubling pattern. Yet, of course, our view is severely limited. We only have some of the complaints, not the full SETs, which might provide some additional context, maybe even some praise. Nonetheless, there’s a pattern. And so we can anticipate the sorts of questions that Wax’s faculty reviewers might have for her: Mainly, do her white-supremacist beliefs inflect her regular classroom interactions? Has her publicly stated belief, I don’t think every generalization on the basis of race is racist,” led her to perpetuate stereotypes in the classroom? What sorts? Has she discriminated against students based on their race or country of origin or gender or sexual orientation?


Has she, in fact, been asked whether she believes Black people are inherently inferior to white people by a student—and was her answer not what it has been reported to be but rather, as the community standard would demand of a professor in the U.S. in the 2020s, a hearty, if not heartfelt, no?


That’s what I would expect of a colleague, someone with tenure: When the question is as easy to answer as that one, a professionally fit professor would get it right.


In a 2018 Wall Street Journal Editorial, Wax singled out for derision, as “anti-role models,” 33 of her law-school colleagues who signed an open letter that called into question her “commitment . . . to respect [her students] without bias or stereotype.” Professor Wax is free, of course, to dislike the manner in which her academic peers disapprove of her academic speech. But, if she asked me for some professional advice, I’d recommend she spend less time complaining about her peers’ unwillingness to engage her in a debate and more time considering whether she might shore up peer support by proving to her faculty colleagues that she’s not acting on bias and racial or cultural stereotypes in her classrooms. Maybe she should ask her colleagues for help in ensuring that she is not, in fact, discriminating against her students on the basis of race or sexual orientation or gender or nationality. I’m sure someone on the faculty could mentor her. I’d also recommend she ask those same colleagues—and maybe she could poll the more conservative law professors, if she trusts them more—if they think, as I do, that she should include more than one Black conservative scholar or legal theorist on her Conservative Political and Legal Thought syllabus and, yes, whether she should drop The Bell Curve entirely and maybe find a conservative law professor or judge or Federalist Society member or Edmund Burke scholar to guest-lecture rather than Jared Taylor.


Generally speaking, extramural utterances like Wax’s deserve condemnation and criticism and outrage but not necessarily, by themselves, punitive sanction by colleagues. The public square can be rowdy and ugly and wrong.


But her classrooms are not the public square, and if she treats those classrooms as if they were, the educational mission and her students be damned, she’s likely failing to meet her basic responsibilities as a professor.


If I were on the faculty committee tasked with determining Wax’s fitness to continue to serve, I’d likely be especially reliant on the AAUP’s “Statement on Professional Ethics.” In particular, I might ask whether anything in the case file demonstrates that Professor Wax has fallen short on these community standards:


Professors demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors. Professors make every reasonable effort to foster honest academic conduct and to ensure that their evaluations of students reflect each student’s true merit. They respect the confidential nature of the relationship between professor and student.

I might also ask whether anything in the public record, or in the classroom, indicates that Wax has mostly succeeded—or that she hasn’t repeatedly failed—in her professional obligation, from the AAUP’s “1940 Statement of Principles on Academic Freedom and Tenure,” to “at all times be accurate.”


That brings us to one of Wax’s extramural utterances that must be looked at differently than the others. As Joe Patrice points out, Wax most likely lied on Glenn Loury’s Skypecast when she claimed that Black students at Penn have never finished in the top quarter and “rarely, rarely” in the top half of their graduating law school classes. As others have argued, if Wax wasn’t straight-up lying, then she likely based what she said on information gleaned in violation of the institution’s anonymous grading policy.


Either way—lying or not lying—she clearly failed in her professional obligation to be “accurate.” Her sense, however derived, of how Black students might perform in a single Civil Procedure course doesn’t provide her any insight into how various groups of students’ GPAs compare at graduation. In her interview with Loury, she cites as evidence for her claims the performance—again, which she wouldn’t know by name or race, if she’s following the rules—of fewer than 100 students in her first-year law course. About 250 first-year students matriculated at Penn Law last year.





The offensive things she’s reportedly said to students in her classes mirror the offensive things she’s said on podcasts and in op-eds which mirror her published “scholarly” work. But, remember, Wax’s faculty peers are not determining whether she’s said offensive things. They’re determining whether she’s fit to remain a professor.


To that end, I’ve found especially revealing an interview with Isaac Chotiner of The New Yorker, wherein Wax refused to answer whether it’s racist to make generalizations without data about racial groups—because she objected to the word “racist” more broadly. When asked if she has any evidence of white French children being taught not to litter, she answered that she’d once witnessed children in Germany who were scolded for littering. Wax has defended, in this interview and elsewhere, what she calls “cultural-distance nationalism,” which “means, in effect, taking the position that our country will be better off with more whites and fewer non-whites.” To Chotiner, she provided, as a “concrete example” in support of this immigration-policy position, the difference between the way Malaysian authorities investigated the disappearance of Malaysia Airlines Flight 370 and how, in the United States, “[w]e are committed to empiricism.”


To be clear: Wax is arguing the United States government should limit immigration from a country—with an average annual economic growth rate of 4.7% in the last decade, a 96 percent literacy rate, and life expectancy nearly identical to the United States’—solely because the authorities in that country were unable to solve a mystery that, my recent viewing of MH370: The Plane that Disappeared on Netflix confirms, continues to baffle pretty much everyone in the entire world.


Garbage. Her thinking is garbage.


The more I listen to Amy Wax the clearer it becomes: she leads with racist, xenophobic, my-culture-must-be-superior-for-no-reason-other-than-it’s-mine, unacademic thinking and then, when asked to support such garbage thinking, she fumbles. She flails. She switches from the children of France to the children of Germany. She pretends she knows something she doesn’t. She thinks your race determines your abilities and behavior. She imagines she knows someone’s GPA by looking at them. She lies.


Is that how she teaches?


Academic freedom is worth protecting. It’s worth defending. It's worth our time and attention and worry.


What’s happening to Amy Wax doesn’t give me the “academic freedom heartburn” that other recent cases have—see the recent one at Hamline University, for instance—because 1) her case has unfolded over many years which means there’s a robust and documented pattern of behaviors and speech acts, including, most importantly, from the classroom, where a professor is obligated to meet community standards; 2) she’s been given repeated fair warning over many years from her law school colleagues, who are the group best positioned to give such warning; and 3) the final resolution of the controversy includes faculty peer review.


Academic freedom—to be robust, to be alive, to be real—does not need to provide safe harbor for unrepentant white supremacists, especially those who can’t figure out how to inhume their personal beliefs during class meetings for the greater good: their student’s learning.


My final recommendation for Professor Wax: a program of self-help. She can start by learning a few lines. It’s actually not that difficult, if you practice out loud in the mirror: No, of course not. It would be illogical and culturally bizarre and immoral and intellectually shallow and unsupported by empirical evidence for me, a tenured professor, to believe that any race is inherently superior to any other. It’s 2023, not 1823 or 1923. No reasonable professor, no reasonable person who has finished the third grade, in our society would believe that. I don’t believe it, and neither should you. If she can’t learn this script, if she can’t at least perform her way toward meeting community standards, then she can retire in disgrace or, if she’s dismissed on the say-so of her faculty peers, see if Jared Taylor is hiring. Whatever it takes to get her out of the classroom and no longer in possession of the same job title as mine.


Anything less would shelter an unfit professor from her own folly rather than prodding her to wise up.




 

Richard Sonnenmoser is a professor at Northwest Missouri State University. He's published fiction, poetry, and creative nonfiction in Harvard Review, West Branch, Colorado Review, and others. He highly recommends Jennifer Ruth and Michael Bérubé’s It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom.

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