Law Schools

The Amy Wax Case Has Nothing To Do With Academic Freedom

Stop trying to make her into a martyr for a cause she has nothing to do with.

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When Penn Law School announced that Dean Ted Ruger would file a formal complaint against Professor Amy Wax to trigger the school’s disciplinary review process, I cautioned that her cause will get draped in the cloak of a perverted conception of “academic freedom.” Some would even try to tie her case to administrative attacks on race scholars, like Nikole Hannah-Jones getting initially passed over for tenure, in an effort to tug at some Rawlsian sense of liberal justice.

Adam Steinbaugh of FIRE made this point soon after the school announced its move:

Freedom of expression does not protect discriminatory conduct, but the mere expression of views others find offensive is not itself evidence of discrimination. Predictions that a faculty member’s views mean they will treat a student differently are not sufficient to justify eroding expressive rights. These concerns have been used to justify suppression of academics’ speech, including speech critical of racism. Penn’s actions today will be used to justify future censorship. 

It’s probably true that this will be used to justify future censorship since that’s what censors do. They’ll cherry pick support for squelching speech wherever they can find it because censorship, generally, begins with the conclusion and cobbles together a justification after the fact. If censors don’t rely on this case, they’ll rely on some other case. Fear of some future disingenuous application isn’t a reason not to do the right thing in the specific case at hand.

Because that’s the thing with the Amy Wax situation: it’s not about “the mere expression of views others find offensive.” If that were true, the school would have initiated these proceedings long ago.

Wax started writing pieces, ostensibly backed by her expertise as a scholar, that failed to hold up to basic fact-checking let alone peer-review. This isn’t about the school challenging her for her research — she’s posting op-eds backed by Wikipedia cites and easily debunked gibberish.

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As for the “prediction[] that a faculty member’s views mean they will treat a student differently,” she blew right past “prediction” when she publicly declared that she thought Black students weren’t capable of succeeding in law school. Beyond the fact that this is not true, she further suggested that she violated school policies on blind grading when she claimed to have support for the notion that Black students weren’t getting good grades in her courses. She probably didn’t have that support, but claiming that she had the ability to have that insight undermined the sanctity of the school’s whole grading process.

Her personal views aren’t the issue — she’s straight up fostering a hostile learning environment.

If anything, Penn Law’s reckoning with the Amy Wax problem is long overdue. Professor Tobias Barrington Wolff, who also serves as Deputy Dean for Equity & Inclusion, wrote an email to his class sharing his thoughts on the issue, which a tipster sent over and we’ve reproduced on the next page. Wolff’s description of a panel discussion he sat on with his colleague underscores just how long the school indulged Wax’s transgressions in an effort to respect notions of academic freedom.

When I came to Penn Law, I was the first out gay person ever appointed to the standing faculty. And here I was, sitting on a panel with a senior colleague explaining her view that my relationships, by their nature, were selfish, disconnected from family and community, and a proper object of official scorn. This was not the first time I had encountered such arguments, but I was taken aback that Professor Wax would speak in this heedlessly dehumanizing way about a colleague sitting next to her at a public event.

As the FIRE statement says, “Freedom of expression does not protect discriminatory conduct,” and yet it’s hard to characterize this as anything but a continuing pattern of discriminatory conduct. This sort of open hostility toward a colleague based on identity, coupled with her statements about Black students fits even the most lenient interpretations of discriminatory behavior.

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Professor Wolff also points to an earlier essay about how “blurring the line between public policy and personal insult is one of Professor Wax’s rhetorical weapons.” As noted in that piece:

What academic freedom does not provide, however, is a free pass entitling faculty who say inflammatory things to escape denunciation or to engage in toxic behavior without consequence. Invoking academic freedom to delegitimize sharp criticism or to claim impunity for improper conduct is a misuse of that principle.

Exactly. If she responded to criticism of her white nationalist conclusions by attempting to shore up the blatantly false claims she cites as support, she’d be covered by basic principles of academic freedom. But she’s not doing any of that. She’s not interested in a genuine academic endeavor, she’s just throwing bombs for attention. And that’s also her right… up until it crosses into promoting a hostile learning environment.

There’s nothing academic here and there’s no “freedom” to promote discrimination. To the extent she’s cloaked in academic freedom, the empress has no clothes at all.

Earlier: Amy Wax Faces Formal Complaint Over ‘Promotion Of White Supremacy’

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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