“Waxing about Amy,” by Joshua T. Katz (original) (raw)

Earlier this week, Amy Wax, the Robert Mundheim Professor of Law at the University of Pennsylvania, was publicly reprimanded by her employer of twenty-three years, which announced in its literary equivalent of the stocks, the Franklinian Almanac, that she will be severely sanctioned for “flagrant unprofessional conduct.” Readers of The New Criterion are surely aware of the onslaught of vitriol that so many other publications—and readers and non-readers of these other publications—have for some years been directing at Professor Wax, whose career has been on the face of things a showstopper: B.S. in molecular biophysics and biochemistry (Yale), M.Phil. in psychology, philosophy, and physiology (Oxford), M.D. with a specialty in neuroscience (Harvard), and J.D. (Columbia); fifteen cases tried before the Supreme Court; and professorships at the University of Virginia and Penn, the latter of which bestowed on her its most prestigious award for pedagogical excellence. But because she is an Ivy League professor who does not hesitate to speak her conservative mind about a number of controversial issues, especially concerning race, ethnicity, gender, and sexual orientation, she is a highly visible target in our current polarized environment.

There is no doubt that Professor Wax says things that make me squirm. But a lot of people say things that make me squirm: Joe Biden, Kamala Harris, Tim Walz, Donald Trump, and J. D. Vance, to name five. (Yes, some are more squirm-inducing than others.) Law professors, too, from across the political and intellectual spectrum: Adrian Vermeule, Michael McConnell, Erwin Chemerinsky, Heather Gerken, and Kimberlé Crenshaw. Heck, I sometimes say things that make me squirm. A bit of squirming is good for the soul: it’s important to have one’s views challenged and to invite others to challenge them, whether the result of the subsequent sparring is the hardening of one’s position or the recognition that there is in fact something to that other point of view.

The best reporting on what has been happening to Professor Wax comes from Aaron Sibarium at The Washington Free Beacon, who wrote about her case in February 2023, February 2024, and again in recent days. There is no reason to reiterate the major points in Sibarium’s outstanding articles, but aside from simply feeling the need to amplify the injustice, I have four reasons for writing to defend and praise Professor Wax, as well as to excoriate those who are working to take her down.

The first reason is personal. Professor Wax—Amy—is my friend, and one should not abandon one’s friends. She helped me through tough times; now it’s my turn to stand up for her. She is a principled woman, and I have never known her to lie. She calls things as she sees them, which is her right—and the right of all the rest of us—to do. As it happens, we are both members of the board of directors of the National Association of Scholars, whose president, Peter Wood, likewise has the admirable quality of always letting you know where he stands. Wood has written very positively about our mutual friend and is now quoted on Professor Wax’s punishment in The New York Times, calling it, correctly, a “serious error of judgment.”

Second, there is that pesky matter known as academic freedom, a subject dear to my heart. The Academic Freedom Alliance (AFA) has issued four public letters of support for Professor Wax, in January 2022, July 2022, May 2024, and again just this week. (I am a founding member of the AFA but played no role in the drafting of these letters.) Here’s an excerpt from the second, which was signed by the co-chairs of the Academic Committee, Janet Halley of Harvard and Lucas E. Morel of Washington & Lee: “Nearly all of the comments by Professor Wax cited by Ruger,” they wrote, referring to the then-dean of the law school, Theodore Ruger,

are unquestionably protected by academic freedom, and none of her comments provide legitimate, non-pretextual grounds for finding a “major infraction of University behavioral standards” . . . . The Faculty Senate should therefore conclude its proceedings with a complete exoneration of Amy Wax for her multiple exercises of academic freedom, both in her teaching and public statements.

The Foundation for Individual Rights and Expression (FIRE) has also long supported Professor Wax: see here, here, here, and here. In the last of these, published on September 24, which describes Penn’s decision to punish Professor Wax as “chilling,” the lawyer Alex Morey writes as follows:

FIRE has long defended Wax, and we continue to do so for two reasons. First, because her comments are unquestionably protected by academic freedom. And second, because the same principles that protect her right to hold both her views and her job also protect faculty who represent a range of viewpoints around the country.

Now Heterodox Academy (HxA) has weighed in, too:

The University of Pennsylvania has decided to suspend Professor Amy Wax next year at half pay, despite the lack of evidence that she ever discriminated against any students or breached the confidentiality of any students. HxA finds Penn’s decision to be an egregious violation of Wax’s academic freedom.

Third, it has been widely reported (see, e.g., this account by Graham Piro of FIRE) that Penn engaged in procedural irregularities in order to “get” Professor Wax. If true—and I have every reason to believe that it is true—this should upset every principled member of society. After all, you could be next.

Fourth and finally, the language that Penn uses to describe Professor Wax’s misdemeanors in the letter of reprimand is both largely unconvincing and a truly staggering example of hypocrisy. The letter claims that her

conduct included a history of making sweeping and derogatory generalizations about groups by race, ethnicity, gender, sexual orientation, and immigration status; breaching the requirement that student grades be kept private by publicly speaking about the grades of law students by race and continuing to do so even after cautioned by the dean that it was a violation of University policy; and, on numerous occasions in and out of the classroom and in public, making discriminatory and disparaging statements targeting specific racial, ethnic, and other groups with which many students identify.

Thus the provost, John L. Jackson, Jr.—though an almost identical sentence appears in the lengthy “decision” of August 2023 by the then-president M. Elizabeth Magill, which the current interim president, J. Larry Jameson, recently “elected” to release alongside the sanctions “for the benefit of the University community’s understanding of the matter.” (The only substantive difference is Jackson’s removal of the word “blithe” between “sweeping” and “derogatory.”)

It cannot go unremarked that Magill resigned in disgrace last December because it became widely known that she was presiding over a campus filled with members of the faculty who made, and continue to make, sweeping and derogatory generalizations about groups by race, ethnicity, gender, sexual orientation, and immigration status and who on numerous occasions made, and continue to make, discriminatory and disparaging statements targeting specific racial, ethnic, and other groups with which many students identify.

At the very least, the last year has demonstrated that faculty at Penn regularly disparage Jews—they did so even before October 7, 2023, and have been especially energized since—and invite speakers to campus in the full knowledge that they will do the same. But the administration doesn’t appear to care about this, even as so many donors, including some of Penn’s largest benefactors, withdraw support. Noting that his client is Jewish, one of Professor Wax’s lawyers, David J. Shapiro, laid out some basic facts last November in an article titled “Amy Wax, Liz Magill, and Hypocrisy.”

In response to what one might call Penn’s final solution to the Amy Wax problem, Steve McGuire now asks ironically, “So, Penn will be sanctioning the members of its chapter of Faculty for Justice in Palestine next, right?” And Sibarium points out, with graphic illustration, that “UPenn declined to sanction Dwayne Booth, a lecturer at the school, for his cartoons depicting ‘Zionists’ as Nazis who drink the blood of Palestinians” (Sibarium’s colleague Jessica Costescu published a full account of this outrage in February) and that “on October 7—as Hamas was live-streaming the worst pogrom since the Shoah—a UPenn professor [of political science], Anne Norton, said that the violence was justified and described it as a legitimate form of self-defense.”

This leaves the question of what to do about Professor Wax’s remarks about students’ grades. I admit that her now-infamous remark to Glenn Loury in 2017 makes me squirm: “I don’t think I’ve 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” (at 49:08). Is talking in this hesitant way about blind grading a violation of university policy or even of the federal Family Educational Rights and Privacy Act? I don’t know. What I am sure of is that if Professor Wax’s thinking is mistaken, it’s an example of misinformation (she believes what she is saying), not disinformation (she is intentionally saying something untrue). And it is noteworthy that, although Ruger says that Professor Wax spoke “disparagingly and inaccurately,” Penn has for all these years refused to provide empirical data to show that she is wrong.

No matter how you look at things, the issues involved in Amy Wax’s case are not pretty. But a lot of things in America right now are not pretty, including college campuses generally and the University of Pennsylvania’s in particular. How despicable it is that Penn allows many of its members to spew hate without consequence while imposing on just one very distinguished professor the sanction of noting “in public appearances that you speak for yourself alone and not as a University or Penn Carey Law School faculty member.”