University of Pennsylvania Versus Amy Wax

The University of Pennsylvania proudly says that it was founded by Benjamin Franklin, who also chaired its governing board in its formative years. That famed colonial polymath and Founding Father would no doubt be unhappy if he saw what leaders of Penn are trying to do to Amy Wax, the university’s Robert Mundheim professor of law. Professor Wax is something of a Franklin-like academic wunderkind, who, among other things, holds degrees from Yale University, Harvard University, Oxford University, and Columbia University, including a medical degree as well as a law degree.

Why would Ben Franklin be unhappy with Penn? Because he was a staunch supporter of freedom of expression. He is quoted as saying, “If everyone is thinking alike, then no one is thinking.” Amy Wax does not “think like” a large proportion of American academics, often citing inconvenient truths that offend many of them. Yet reasoned and civilized debate between peoples is at the heart of what makes great universities—and nations. Again, in the words of Franklin: “Whoever would overturn the liberty of a nation must begin by subduing the freeness of speech.” Yet the dean of Penn Law, Ted Ruger, and many of his colleagues are trying to “severely sanction” (in nonacademic jargon: fire) Professor Wax. (Marginally relevant factoid: the very first law professor at Penn, James Wilson, was a key figure in drafting the US Constitution).

We are in an age of enormous self-censorship—people are afraid to express their thoughts publicly for fear of being ostracized. By contrast, Amy Wax has very publicly made a number of statements that have angered or infuriated people; these assertions are mostly factually correct or, minimally, at least defensible opinions expressed with civility and in good faith. Let me mention four of Amy Wax’s ideas that have resulted in contretemps: her spirited defense of the bourgeois family values that prevailed in the 1950s; her idea that some nations or cultures are inferior to others; her assertion that black law school students do not fare as well academically as whites; and, most recently, her suggestion that America would be better off with a smaller Asian population and less immigration. But before proceeding, full disclosure: I sit on the board of the National Association of Scholars with Professor Wax and have been enriched by having Wax as a friend. I also talked to her in connection with this modest epistle (although she has not seen the final result).

In a 2017 op-ed for the Philadelphia Inquirer, Wax and Larry Alexander, a law professor at the University of San Diego, argued that the “bourgeois values” of the 1950s—hard work, a stable two-parent home life, thriftiness, modest crime rates—produced a vibrant and happy society. Soon, a torrent of indignant responses appeared, one a letter from fifty-four students to the Daily Pennsylvanian lamenting that Wax and Alexander venerated values “steeped in anti-blackness and white hetero-patriarchal respectability.” Never mind that, aside from acknowledging the racial discrimination of the era, Wax and Alexander scarcely discussed race and made no derogatory remarks toward gays. Wax and Alexander were guilty of approving of a lifestyle different from what the signatories of the letter seemed to favor.

Adding gasoline to the firestorm, Wax and Alexander asserted—horrors of horrors—that not all cultures are created equal. As Mona Charen, defending Wax and Alexander, ingeniously argued, the protesters in reality accepted the Wax–Alexander proposition. For example, they surely believe, as she put it, “that Alabama’s culture, circa 1952, was inferior to that of Philadelphia in 2017,” and probably they would additionally concede that “Afghanistan’s cultural practices vis a vis women and minorities are inferior to those in Belgium.” As Wax has pointed out on several occasions, empirical evidence of the superiority of Western civilization is pretty strong—most persuasive are the millions of migrants who uproot their lives to move to the most advanced manifestations of that culture, including in Western Europe, the United States, Canada, Australia, and so on. Migration from, say, Pakistan or Somalia to Britain is dramatically greater than in the reverse direction. Far more Pakistanis want to live in London than English want to live in Karachi or Islamabad.

All of Western cultural supremacy arose out of the Industrial Revolution, which began in the West (Britain, to be precise) and led to worldwide affluence. The Industrial Revolution itself was an outgrowth of the Enlightenment, which gave us such luminaries as Isaac Newton, Galileo Galilei, Leonardo da Vinci, William Shakespeare, John Locke, Adam Smith, James Watt, and a host of other thinkers, inventors, and entrepreneurs, leading to the rise of democracies and a rediscovery of ancient verities as well as new discoveries of vast amounts of knowledge and geographic areas.

Wax’s inconvenient truth that perhaps trumped all others, however, was her assertion in class that her experience was that most black Penn Law students graduated below the average of their peers. Wax apparently said, “I don’t think I’ve ever seen a black student graduate in the top quarter of the class, and, rarely, in the top half.” The dean of the school asserted, “These claims are false.” Wax’s statement was viewed as wrong, outrageous, insensitive, hurtful, and insulting to a significant number of students—as protests duly demonstrated. Interestingly, Penn has not provided Wax or her lawyer with detailed empirical data to confirm the dean’s claim that Wax’s assertion was incorrect. Several solid studies—one by Richard Sander and Stuart Taylor Jr., for example (Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It)—have provided empirical evidence that law schools preferentially admit blacks, often to their own detriment, if bar exam passage rates are any indication.

More recently, Wax has added to the outrage with her opinion that America would be better off with fewer persons of Asian background and a smaller pool of immigrants. As a lifetime student of American immigration, I strongly disagree with Professor Wax on this point, but I certainly think that she is entitled to say it. Indeed, it provides a basis for an interesting and desperately needed dialogue on the pros and cons of current and proposed immigration policies. Her views could help foster debate and a search for improved policies—this is what universities should be doing.

Firing a tenured professor is very rare at Penn, as at most universities. Most often, efforts to de-tenure arise out of outrageous and often illegal personal conduct: sexually attacking or threatening students, stealing money, or frequently failing to show up for class. Not Wax. She is not even being accused of launching nasty ad hominem attacks on specific students or faculty; indeed, Wax makes her arguments sharply and strongly, but relatively courteously. Wanting to verify that, I listened to an hour-long class lecture on YouTube and thought that she was remarkably well-mannered.

To be sure, once in a while a professor genuinely needs to be de-tenured. I once participated in a de-tenure procedure, assessing a situation where a professor who had clearly lost his mind gave every student in a large class an F. In the internal adjudication of the matter, I strongly favored severing the professor’s relationship with my university. In another case, a professor used university resources to run a private business for profit. Merely being a mediocre teacher or a lazy individual who hasn’t written a journal article or book or received a grant for many years is not enough—colleges are littered with all sorts of these amiable mediocrities and academic debris. The attempt to oust Wax, by contrast, is more akin to an academic assassination—unjust and immoral.

Nonetheless, in 2019, a large group of students unhappy with Wax called a “town hall” meeting for students—and Penn Law Dean Ted Ruger. Ruger allegedly told the students, “Her presence here … makes me angry, it makes me pissed off.” Ruger has championed himself as a defender of the students against supposed attacks on them made by Wax.

It is relevant to note that Wax has won the prestigious Lindback Award for Distinguished Teaching. Aside from being a voluminous author, Wax has also argued at least fifteen cases before the US Supreme Court—that’s about as good as it gets in the legal profession. Her only sin, however, from the viewpoint of many academics, is a grievous one—she tells truths that most Penn Law professors and students (and the haplessly subservient Dean Ruger) don’t want to hear. She is being punished for being intellectually honest and truthful, not for being immoral, incompetent, or lazy.

Ironically, very little has actually officially happened since Dean Ruger began his attack on Professor Wax. Several years ago, she was taken off of teaching her large first-year class on civil procedure, which had been her major instructional contribution. On June 23, 2022, Dean Ruger indicated in a letter to the chair of the Faculty Senate that he wanted to initiate major sanctions against Wax. She had committed numerous sins, according to Ruger, including “incessant racist, sexist, xenophobic, and homophobic actions and statements.” Besides, as Ruger mentioned, Wax had appeared on Tucker Carlson Tonight, and that itself may be viewed by the woke intelligentsia as an implicit sign of moral and intellectual degeneracy. The bottom line: Ruger doesn’t agree with Wax, and, therefore, he wants her fired.

Several lawyers have apparently been hired, and I have seen scores of pages of legal arguments from Wax’s attorneys. Wax doesn’t even think that the Faculty Senate is the appropriate venue to hear the complaint. According to her interpretation of university rules, that job resides with something called the Grievance Commission and the Faculty Senate’s Commission on Academic Freedom and Responsibility. A particularly sad and arguably disgusting dimension of this sad saga: Wax has been undergoing cancer treatment. Penn appears to be attacking a sick septuagenarian and has ignored her pleas to defer this action during her illness.

Actually, as at most schools, the procedures relating to faculty sanctions are rather complicated and involve various faculty groups all the way up to the university president, so it could take months (years?) just to get the matter adjudicated within Penn, much less the courts.

Penn’s dragging of its feet in this case might make good sense from its perspective, as some prestigious and wealthy alums have shown that they are very angry at Penn for its actions toward Wax. Most notable among this group is Paul Levy, a major donor to the university and Penn Law, who early in this brouhaha resigned from his position as a university trustee over the shameful treatment of Professor Wax. And a growing chorus of respected groups and scholars are speaking out, including the Academic Freedom Alliance and Roger Kimball, the publisher of the New Criterion. Kimball said, “[I]t is for stating such obvious truths that Wax is being dragged into the Star Chamber at Penn.” Perhaps muddying the waters a bit, Ted Ruger is stepping down as dean.

Additionally, in what strikes me as a brilliant move, Professor Wax has counterattacked, filing a grievance complaint against Ruger with Penn’s Grievance Commission, saying, among other things, that Ruger’s charges “are nothing more than an attempt to use the sanction process … as a means of punishing the most powerful dissenting voice on campus and preventing students from being exposed to important conservative ideas.”

This account of university infighting is abridged considerably in the interest of maintaining reader interest and sanity. For example, I have not discussed a secondary contretemps that evolved over Wax’s inviting Jared Taylor, an advocate for racial segregation, to her course on conservative thought, nor her discussion of the views of British politician and scholar Enoch Powell. Powell lamented the large inflow of mostly black immigrants into Britain in the last half of the twentieth century and the negative impact he perceived that it had on Britain. Powell was a major British politician, a force in the Conservative Party, and a man of considerable intellect and thoughtfulness. I personally knew him and treasure a lovely book of poems he authored and gave me at London’s important Institute of Economic Affairs. It seems to me entirely appropriate to meet or discuss individuals like Taylor or Powell.

Universities are incredibly politically myopic. The collective decision-making environment in the academy (at Penn, as manifested in the Faculty Senate, informal student protests, and probably the local diversity and inclusion bureaucracy) is on a different planet—indeed a different galaxy—from American public opinion. That disparity is a major reason why university enrollments are falling and public support for universities is cratering. Ruger’s cheerleading the woke Penn masses to high levels of indignation and furor may soon meet the reality of furious alums, donors, and, who knows, possibly even skeptical jurors. Could Ted Ruger get elected Philadelphia dog catcher if it were an elective office?

The modern world was created by challenging the reigning political, religious, economic and academic establishment. It took bold individuals to argue that the charging of interest is not sinful and that the sun does not revolve around the earth. It took bold individuals to introduce and expand the concept of private property rights that, ultimately, along with revolutionary new scientific advances and inventions, created the modern world. Progress came by questioning old beliefs and developing a scientific method to verify empirical propositions. The University of Pennsylvania was founded by Benjamin Franklin, the premier American embodiment of that tradition in our nation’s formative years. Similarly, Amy Wax is a modern-day continuation of that tradition and a national treasure.