Law Schools

Deep Dive Into Law Professor Amy Wax Still Manages To Miss Some Key Details

Looks like @Voxdotcom figured out who Amy Wax was about five years after the fact.

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Amy Wax

Amy Wax

“Let’s forget the fact that you’re coming a little late to the party and embrace the fact that you showed up at all,” goes a notable line from the show “The West Wing.” As a mantra, it counsels us all to temper feelings of exasperation when someone stumbles into reality five years too late and focus on what we share. Vox just put out around 2,900 words on the long and racist history of Professor Amy Wax and Penn Law School’s much, much, much belated effort to sever ties with her. It’s a story that Above the Law readers know well as we’ve covered it extensively since 2017. But Vox just got here, so let’s do the embracing.

Though with the benefit of five years of water under the bridge, the article still misses a number of critical details. Which is wild since merely googling Amy Wax finds Above the Law stories on these issues that never stray between the first and fifth result.

Maybe the author used Bing.

She started making national headlines in 2017, when, in a column that now seems mild by standards she would later set, she and a co-author bemoaned the breakdown of “bourgeois culture.” Their claim that “all cultures are not equal” in reference to “inner-city blacks” and “some Hispanic immigrants” along with “some working-class whites” sparked a flurry of open letters, responses, and condemnation. But the controversy died down fairly quickly.

It did not die down quickly. ATL alone published 10 stories about the incident and the aftermath over the next five months. But also, this account overlooks that the day after her column, the Daily Pennsylvanian asked her to elaborate a bit on the whole white supremacy thing and she said:

“I don’t shrink from the word, ‘superior,'” she said, adding, “Everyone wants to come to the countries that exemplify” these values. “Everyone wants to go to countries ruled by white Europeans.”

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This interview is pretty significant if one is trying — as this Vox article is — to juxtapose the tenure protections in the Wax case against efforts in Florida to fire teachers for teaching about racism and stuff. When the paper offered her an opportunity to put a shiny veneer on her article (written with USD Law’s Larry Alexander, who garners less attention, but is just as limited to ad hominem attacks when anyone points out that he can’t string together an academically defensible article), Wax didn’t say something like, “We merely contend that societal elites share cultural norms that many are, for whatever reason, prevented from accessing and that this compounds existing divisions.”

No, she said “white Europeans” are just “superior.”

It may seem subtle to some, but this made every subsequent event a foregone conclusion as early as 2017. Even some of Wax’s defenders concede that she deserves no professional protection for statements that demean individuals as opposed to general policy proclamations. When someone throws out the dog whistle and declares white superiority, telling people that Penn Law’s Black students are incapable of good grades was definitely coming next.

Wax hems and haws to Isaac Chotiner in the New Yorker about whether differences are innate — but on a small YouTube channel says, “I would bet there is a genetic component to group differences in cognitive ability.”

Chotiner pressed her for academic support for her claims and she sent him Wikipedia links! “Hems and haws” undersells that she invokes the cloak of academic freedom to cover some crowdsourced Wiki blurbs. Boomers share Facebook memes that are more citable — and at least sometimes they’re Bluebooked. As the Vox article correctly notes, academic freedom is not meant to “impl[y] that individual teachers should be exempt from all restraints as to the matter or manner of their utterances.” This interview marked another the point where Penn had ample reason to move to sever its relationship with Wax.

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Saying racist stuff may be protected, but couching those statements as “academic” and then producing nothing more than Wikipedia made a mockery of academia generally and Penn Law specifically. She used Penn’s good name to pawn crowdsourced opinions off as scholarly observations. This simply cannot be what academic freedom is meant to protect.

Wax, for all of her perceived victimhood, is still safely under those protections, and it’s unclear where her case with Penn Law is headed. She has raised $190,000 via a GoFundMe, and her team of lawyers submitted a memo outlining various objections and seeking a delay in the hearing to accommodate Wax’s ongoing cancer treatment.

The GoFundMe isn’t even where she’s telling people to donate! Instead, she’s telling donors to send money to a separate fund that she describes as a 501(c)(3) — and still does as of this writing — which is, um, dubious since a 501(c)(3) cannot by its terms benefit a single individual. And there was no apparent record of the fund on the IRS list of tax exempt organizations. Incidentally, we informed the IRS of her website and its claims to see what they would say. The agency responded that it was not looking into the matter at this time and offered no further explanation. Perhaps there’s some additional, non-public reason. Perhaps they’re waiting for someone to claim a deduction on their taxes this year. It’s unclear.

Unlike the other details, this one has less of an obvious connection with the value of tenure, but might color how a law school looks upon someone teaching law.

Less so with the next case, when comments Wax also made in 2017 were resurfaced, in which she said, “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.” This apparently violated Penn’s policies on the confidentiality of student grades, and Ted Ruger, the dean of Penn Law, stripped Wax of her mandatory first-year course. (Ruger also stated her claims were false.) Ruger pointedly endorsed Wax’s academic freedom and explicitly stated the punishment was for breach of student confidentiality.

This is a good point and deserves more emphasis. While framed as one more milestone on the road to the school taking action, this episode unnecessarily complicated the case. Academic freedom doesn’t cover breaches of student confidentiality. When the school refused to cut her off there, it inadvertently bolstered her — still flimsy — claim that the current challenge is about her later statements deviating from some leftist “rigid orthodoxy.” Fire her when she’s committed a breach that cannot possibly be defended with vague nods toward scholarly protections.

Ultimately, the Vox article is aimed at comparing and contrasting this case from conservative governors purging professors to preen for presidential primaries. To that extent, slow-playing some of these details to emphasize the five year journey to this point aids the argument.

But it reinforces a false equivalence. The important distinction between Wax and these other professors isn’t the volume of complaints, but the nature of each of them. There hasn’t been a defensible tenure-based argument for keeping Wax employed since 2018 at the latest. It’s almost as though the piece hopes to convince right-wing politicians to extend the same overabundance of due process to professors that Wax has enjoyed, but they really don’t care. If they have to give professors five years of red tape to claim they expunged a “woke” professor, they’ll do it.

Instead of arguing that this case is exceptional because of its length, highlight that it’s exceptional on the merits. The full accounting of all of these incidents include at least one key detail that takes this substantively beyond any question of free speech or academic freedom. There’s no need to dance around that.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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