Law Schools

Amy Wax Plots Racial Discrimination Suit Unless Penn Forgives Her For Denigrating Students, Bringing White Supremacists To Class

This seems like the opposite of how racial discrimination laws are supposed to work...

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Amy Wax

Amy Wax

In September, Penn Law’s Amy Wax received a tepid slap on the wrist from the University following years of racist antics. Wax repeatedly disgraced the University, from writing racist opinion columns and telling the school paper that when it comes to “white” culture, “I don’t shrink from the word, ‘superior'” to publicly insulting Black Penn students — without evidence — claiming that, as an ethnicity, they “rarely” graduate in the top half of the law school class to bringing recognized white nationalist figures to campus.

Through it all, Wax draped herself in “academic freedom” and managed to hold the school at bay for a lot longer than you’d have thought considering her “academic” work amounted to citing Wikipedia to spout off in newspapers and webcasts rather than submit any scholarship to scrutiny. Finally though, the school had enough and sanctioned her to one year at half pay and no summer pay, a public reprimand, the loss of her named chair, and a requirement that she must always clarify that she’s not speaking for or as a member of Penn Law.

But MAGA means never saying you’re sorry and that the only racism that counts is “racism” against white people so Wax is planning to sue the school for “racial discrimination” unless it drops the sanctions and lets her get back to using her position to explain that the country needs “fewer Asians.”

From the Daily Pennsylvanian:

In a letter to Interim Penn President Larry Jameson and the University Board of Trustees, Wax’s lawyers argued that the University’s speech policies are “inconsistent” and violate Titles VI and VII of the Civil Rights Act of 1964. These titles prohibit discrimination and employment discrimination based on race, color, religion, sex, and national origin. The lawyers also cited a federal code prohibiting racial discrimination. Furthermore, they claimed that the policies breach Pennsylvania contract law, noting that Wax’s contract with the University includes provisions safeguarding free speech.

It remains confusing how Wax finances her attorneys, since she’s said in the past that donations to her legal defense are tax deductible which would seem contrary to federal tax laws that prohibit entities set up to benefit a private individual from claiming tax deductible status. But maybe she paid taxes on the money she raised on the back end.

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In any event, her legal counsel cites a number of potentially inflammatory statements from other faculty members who were not punished the same way, implying a selective and discriminatory process. For example, the letter cited a faculty member for drawing a cartoon that Wax’s counsel say depicts blood libel with three men drinking blood from glasses marked “Gaza” while they call a peace dove an anti-Semite. The letter notes:

You, President Jameson, issued a statement condemning this cartoon, but lecturer Booth has to date received no official sanctions as levied against Professor Wax. In fact, the Jameson Statement (available at https://penntoday.upenn.edu/announcements/statement-political-cartoons-j-larry-jameson-interim-president-university) implied that Penn’s “bedrock commitment to open expression and academic freedom” required that Penn impose no sanction against Booth because Booth and other speakers with his views have the “right and ability … to express their views, however loathsome we find them.”

If anything, this proves how consistent the school’s disciplinary process is. Wax wrote her article about white culture being superior in 2017. She made up her unfounded attack on Black students in 2018. She was publicly citing Wikipedia in 2019. Amy Wax had at least an eight-year runway before the school took even modest disciplinary action (she was taken off the 1L teaching rotation in 2018… which seems more like a reward).

The school didn’t publicly discipline a professor over a single incident? When it’s a political cartoon and not, for example, a false claim about student academic records? No kidding!

The crux of Wax’s reasoning is that the school’s stated commitment to expression of “loathsome” ideas should apply her behavior like apples apply to oranges. If Wax limited herself to penning articles endorsing mass deportation she’d get properly roasted by the critics and probably denounced in the same way the cartoonist was, but she’d fall within the broad confines of academic freedom. Telling the world that you don’t think a specific racial category of students are smart enough for law school is not, on the other hand, remotely passable as a scholarly commentary on geopolitics.

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But worse than being merely inconsistent, the University’s speech policies—including its actions against Professor Wax—transparently discriminate on the basis of race, including most notably the race of the subject of the speech at issue. As such, they violate federal law’s various prohibitions against race-based discrimination, including Titles VI and VII and 42 U.S.C. § 1981.

It’s discrimination based on “the race of the subject of the speech at issue.” Denigrating minority students should be protected by anti-discrimination laws because the school didn’t punish OTHER instances of discrimination is a true Galaxy Brain take. If anything, this suggests the school should punish more people, not that Wax shouldn’t get punished.

In addition, the University’s content-based discrimination against the speech that is at issue here violates the University’s contractual promise to Professor Wax (and all other tenured professors) to abide by First Amendment principles.

Yeah, the First Amendment doesn’t really get people out of hostile work environment allegations. “Look, I was just kidding about that slur” might be protected from prosecution, but you’re still going to get written up.

And the procedures that the University employed to determine that discipline was warranted were also gravely flawed and violated the contractual tenure protections of basic due process and fundamental fairness that Professor Wax enjoys. The procedures further contravened the Americans with Disabilities Act, since they failed to accommodate Professor Wax’s then-ongoing cancer treatments adequately (or even minimally).

From the outside, it’s hard to assess the extent of accommodations provided to Wax. But the process was quite slow.

It’s hard to believe there’s a serious claim for racial discrimination in here. On the other hand, by tying her case to high-profile statements made about the Gaza war and the UnitedHealthcare CEO killing, Wax sets the stage for a cable news tour decrying the campus free speech “crisis” that outlets love to hype. They had a field day getting university presidents — including Penn’s — tossed. This seems like the sort of manifesto they could build a segment around.

Of course, maybe this is the prelude to a real claim that we’ll see as soon as the school tells her to pound sand. But generally never underestimate a publicity hound’s nose for publicity.

Penn Carey Law professor Amy Wax threatens to sue University on basis of racial discrimination [Daily Pennsylvanian]

Earlier: Amy Wax Sanctioned But Keeps Her Job, Tenure, Confidence That School Can’t Do Anything More
The Amy Wax Case Has Nothing To Do With Academic Freedom
Professor Declares Black Students ‘Rarely’ Graduate In The Top Half Of Law School Class
Law Professors Say White ’50s Culture Is Superior, Other Racist Stuff
Amy Wax Moves To Dismiss Disciplinary Action, Still Raising Legal Defense Funds That She Claims Are Tax-Deductible
Amy Wax Says Her Legal Defense Fund Is A 501(c)(3) Charity And That Seems… Odd
Law School Professor Amy Wax Cites Wikipedia And We Need To Stop Pretending Tenure Was Made For This
If You’re Just Finding Out Amy Wax Invited A White Supremacist To Her Class, There’s So, So Much More!

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 or Bluesky 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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