Some of you may have seen the long story yesterday in the New York Times, starting on page 1, about an academic freedom controversy at the University of Pennsylvania Law School, and if you read the story to the end you will have noticed a reference in it to my son, Tobias, who is a professor there. The story concerns a rather unpleasant person named Amy Wax, whose racist views have been a thorn in the side of the Law School and a trial to the students for many years. I actually encountered Wax some years ago when I presented my paper “The Future of Socialism,” to the law school faculty. At my son’s suggestion, I circulated the paper in advance and he assured me that everyone would read it. As the discussion started, Wax asked a belligerent and rather condescending question based on the views of Ludwig von Mises and Friedrich Hayak. I pointed out that I had discussed the views of both of these theorists at length in the paper, a fact that she obviously did not know since she had not bothered to read it.
After many years of suffering from the complaints of
students about Wax’s behavior and statements in class, the Dean of the Law
School announced that an inquiry would be started about the effect that her
views were having on the students, and this has generated a vigorous debate
about academic freedom. Since I am something of an absolutist about academic
freedom, both for reasons of principle and out of self-interest (people on my
end of the spectrum being more likely to be attacked than people on her end),
I felt rather torn about the issue and I spent some time in the middle of last
night lying in bed thinking about it. Here is what I came up with.
Amy Wax was hired some years ago as a tenured professor of
law at the University of Pennsylvania. In that position, she has certain
rights. She has the right to be protected from professional loss for expressing
unpopular opinions. She has the right to receive a salary and raises
appropriate to someone of her accomplishments and distinction. She has a right
to be assigned office space and to receive her share of such supplementary
support as research funds and the like. At the same time, she has certain
obligations. She is obliged to teach the normal load of courses, to meet with
students an appropriate amount of time, to submit grades for the students in
her courses on time and to do her share of such supplementary chores as serving
on committees and the like.
She has an obligation to teach courses, but especially in a Law School there are limitations on what courses she can offer. Law Schools
are unlike arts and sciences academic departments in this respect. A law degree
is a professional degree and professors at Law Schools are required to teach
such elementary law subjects as Contracts, Torts, Civil Procedure,
Constitutional Law, and the like. In arts and sciences fields, the senior
professors frequently teach no introductory courses at all, leaving that to
their junior colleagues. But even the most famous professors at a Law School will
as a regular thing teach first year introductory courses. Amy Wax earned a
medical degree before she went to law school, but if she were to announce that
she planned to teach anatomy rather than torts next year, the Dean would
summarily tell her that she could not do so. That would not be a violation of
her academic freedom; it is just a fact of life in Law Schools.
She has an obligation to teach courses, but she does not have a right to teach courses. She has a right to receive a salary and
have her tenure protected but she does not have a right to teach courses. As
soon as I realized that, the solution to the problem of Amy Wax at the
University of Pennsylvania seemed obvious to me. I think she should continue to receive her
salary and all of the other perquisites and support appropriate to someone in
your position and I think she should be protected in that right despite her
despicable views, but I think from now until she retires, she should teach no
courses and be assigned no student advisees. She would of course be free to
give non-credit lectures on any subject she chose and any student who wanted to study with
her would be free to do so, but from now on nothing she does at the University of
Pennsylvania Law School should be part of the regular curriculum presented to
students.
The University of Pennsylvania Law School made a mistake
when it appointed her to a tenured professorship and it is their responsibility
to swallow that mistake. If they can afford to do it, they should appoint
someone else to cover the courses that she has until now been teaching. If they
cannot afford to do that, then the faculty as a whole should pitch in and in
rotation teach extra courses to cover her load. She can continue to push her
ugly racist views in any way she wishes and as loudly as she wishes but she
does not have a right to teach courses at the University of Pennsylvania in
which he expresses those views and since the University of Pennsylvania does
not have a right to stop her from expressing those views in the courses she
teaches, they should simply assign her no courses to teach.
If memory serves, Penn Carey (yes, they've gone through a corporate rebranding) already took away Professor Wax's first year courses - so it's likely the only students taking her classes anymore are FedSoc weirdos. It's also worth noting that back when Wax recieved her appointment and tenure - or perhaps even before - Biden and the Clintons were going on about Super-predators and welfare moms and invading Iraq and voting to gut the welfare state. Point being - Wax is a relic of a bygon era in the academy who is protected by tenure, but her "failure" to evolve along with the core "liberal" commitments of centrist democrats and republicans is not a good reason to prevent her from teaching classes altogether. Instead, the status quo is acceptable: let her teach courses on whatever it is someone of her rank is permitted to teach and let the students and faculty make fun of her for being the retrograde dinosaur that she is.
ReplyDeleteI'm afraid I think this is a quite bad solution to the general problem.
ReplyDeleteMany legal academics find teaching to be a chore, and teaching big first year courses a large chore (personally, I find it quite energizing, but tastes differ). If, for example, there is evidence of repeated abusive behavior to students, then in no way should it be 'rewarded' with a reduced or eliminated teaching load. Indeed, that would create a route for getting out of teaching--surely a perverse incentive.
Among the obligations that faculty shoulder is an obligation of basic civility to students. This shouldn't in any way require shielding them from facts or opinions they might disagree with, or find 'triggering', but should go to the means by which the facts are delivered. I would hope that much is not controversial.
More controversially, perhaps, I think that at some ill-defined point, assertion of false things as facts **in class** crosses a line into not actually doing the teaching job within acceptable bounds. This is a dangerous and fact-specific inquiry, but academic freedom is not a blank check to teach that (making up examples:) the US was founded by lizard people, or judges are members of a secret blood-drinking cult. I think there is a nearly unlimited right to advocacy, even of hateful things, but not to false statements of reality.
(A much harder case would be asserting false things in writings, a problem complicated in law by the relative absence of peer-reviewed law journals.)
I've seen interviews with Professor Wax and she can be quite obnoxious.
ReplyDeleteHowever, when academic freedom is under attack in states like Texas and Florida (I read that in Leiter's blog), it's not the right moment to fire someone in Pennslyvannia for their illiberal views because to defend academic freedom under attack in red states you have a much stronger argument if you defend it even when the view of the professor in question contradicts your own.
I believe that I've read that Professor Wax no longer teaches basic courses that all law students are required to take, so those students who take her courses do so voluntarily and thus, no one is exposed to her illiberal views who would be so offended by them that they would be unable to continue participating in the course.
I am going to take the liberty of inserting my lawyer’s nose into this discussion. I promise to be civil.
ReplyDeleteThe University of Pennsylvania is a private institution, as is its Law School. Consequently, the United States Constitution, with its Bill of Rights and its First Amendment and due process clauses, do not apply to it, and do not protect Prof. Wax. (It is possible that she has free speech and due process protections under the Pennsylvania Constitution which exceed those under the U.S. Constitution, an issue which I have not looked into.) That aside, Prof. Wax has absolutely no free speech protections as a law professor at the University of Pennsylvania. I believe Prof. Tobias Wolff would agree with me on this.
Therefore, what protection does Prof. Wax have to express views in class which some of her colleagues, and students, find offensive and hurtful? The only protection she would have would be, if the law professors are unionized, her rights are controlled by the terms of the collective bargaining agreement, which in all likelihood provide that she may only be disciplined for “just” or “good” cause. There may also be a provision in the CBA protecting academic freedom, but the concept of academic freedom is not without its limits, e.g., could a professor use the N—word in class, or make blatantly anti-Semitic comments, and claim that s/he had a right to do so under the doctrine of academic freedom? I do not believe so. The Law School could decide to terminate her because of her classroom conduct, which she would then file a grievance against, which in all likelihood would end in an arbitration proceeding, to be decided by an arbitrator selected by the American Arbitration Association. Given what I read about her conduct in the N.Y. Times article, I believe she would have a difficult time winning such an arbitration.
There is another possibility, however. If Prof. Wax were disciplined, she could file a complaint with the EEOC under Title VII, claiming that she is being targeted because she is Jewish. The EEOC could decline to pursue such a charge, in which case it would issue a “right to sue” letter to her, which would entitle her to hire an attorney and sue the Law School in federal court. I would hope that she would not choose such an avenue, but given what I read about her, I think it highly probable that she would choose this tactic.
The bottom line is that the Law School is free to take whatever disciplinary action it deems appropriate against Prof. Wax, with the caveat that she would have to pursue her legal remedies before an arbitrator and/or the EEOC/courts.
*In Defense of Amy Wax*
ReplyDeleteIn examining my feelings toward Wax I’m surprised to discover not outrage but a strange (very strange) kind of affection (bear with me here).
ChatGPT has been in the news lately, presented as a kind of existential threat. But my pet theory on this matter is, so what? ChatGPT is merely the fancy mechanical version of what most people do anyway.
Most people, I submit, do not engage in *thinking* but are rather merely mechanically reproducing certain sounds. This goes double for most lawyers (trust me on this one), and (4x, 5x … 100x?) for conservative pundits.
Therefore, the personage known as “Amy Wax” should not be viewed as a living breathing human being but rather as a kind of Frankenstein’s monster, constructed out of the sum total of right-wing op-ed verbiage since about 1951. (There may also be an actual human being, also known as Amy Wax, who walks around and breathes the air in Philadelphia, but I’m not talking about her.)
So “Amy Wax” (along with all the personae of her ilk) should be understood as a kind of organic ChatGPT “bot”. Because a bot must be given some kind of material form, I tend to picture either a cockatoo, or—even better—a classic, circa-1965 TV robot, the kind that looks like an industrial vacuum cleaner, complete with rotating antennae and flailing arms.
Professor Wolff’s example proves my point. Wax didn’t do the reading, but she didn’t need to, because she was only ever going to say the same thing anyway. Picture a cockatoo perched on the back of a lecture chair: “Rawwwwk! ... Von Mises! … Hayek! … Serfdom! … Culture of Poverty! … Rawwwwk! [etc.]”.
Or picture a TV Robot, front and center, occupying the space cleared for it, waving its arms and declaiming in a panicky monotone: “Danger! … Danger! … Socialism! … Does! … Not! … Compute! … Free! … Market! … Only! … Rational! … Solution! … [etc.]”.
As for getting rid of her, my thinking is, what’s the point? There is an endless supply of these replicants out there. Speaking as an employment lawyer, I imagine that Penn is in fact doing something just like what Professor Wolff has suggested, slow walking the whole thing without breaching her contract by actually terminating her. That’s what I would do.
" Alice could not help laughing at this, even in the midst of her tears. `Can YOU keep from crying by considering things?' she asked.
ReplyDelete`That's the way it's done,' the Queen said with great decision: `nobody can do two things at once, you know. Let's consider your age to begin with--how old are you?'
`I'm seven and a half exactly.'
`You needn't say "exactually,"' the Queen remarked: `I can believe it without that. Now I'll give YOU something to believe. I'm just one hundred and one, five months and a day.'
`I can't believe THAT!' said Alice.
`Can't you?' the Queen said in a pitying tone. `Try again: draw a long breath, and shut your eyes.'
Alice laughed. `There's no use trying,' she said: `one CAN'T believe impossible things.'
`I daresay you haven't had much practice,' said the Queen. `When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."
Or from Corey Robin quoting William F. Buckley:
"The trouble with the emphasis in conservatism on the market is that it becomes rather boring. You hear it once, you master the idea. The notion of devoting your life to it is horrifying if only because it's so repetitious. It's like sex."
Or from the NYT March 24, 1994:
"When he said Government had no business trying to outlaw abortion, some people told him to retire from politics.
When he spoke out in favor of a new Phoenix ordinance protecting homosexuals from discrimination, and said they should be able to serve in the military, that got him in more trouble.
And when former Senator Barry Goldwater, an Arizona institution who has been compared with the Grand Canyon among this state's icons, endorsed a Democratic woman for Congress over a self-proclaimed "Goldwater Republican" in 1992, he was called a traitor. The Democrat, Karan English, won. Iconoclasm in Arizona
Now, after Mr. Goldwater said last week that Republicans in Congress should get off President Clinton's back about the Whitewater affair, critics say that the author of "The Conscience of a Conservative," the man sometimes called the father of modern American conservatism, has become -- close your ears, Rush Limbaugh -- a liberal."
Why would one have to actually read a paper when merely incarnating holy names from the canon should be sufficient? Anyway, one thing I've noticed following conservatives over time is that attempting to keep up on the Right is a road to madness. Recently Jordan Peterson, Dennis Prager, and Rod Dreher, etc. have all done some shark jumping. Sanity involves marking ideas to market over time and ideologues can't do that.
Wax is 70. Rewarding hitting the wall with less work may be the least bad option.
Good to hear from you Marc.
Instead of prohibiting Wax from teaching, why not assign her a course at a disagreeable hour, say, 7 AM, which no one or very few are likely to take?
ReplyDeleteThere must be some optional courses in a possible law school curriculum that almost no one is interested in.
In that way, she'd have to get up very early and sit in front of an empty or almost empty classroom.
From her "controversial" statements, she seems to someone who likes to call attention to herself, to provoke others to get them to notice her and in that empty classroom she'd have to suffer the anguish of being unnoticed, of being insignificant.
Two things stand out to me about John Pillett's "In defense of Amy Wax."
ReplyDeleteThe first has to do with the fact that AI is actually a parrot and "only" reproduces and links together according to rules what humans leave behind on the garbage heap "Internet" when producing linguistic signs. It is thus a disinterested, emotionless, morally indifferent machine. But, with the reference to this circumstance, one can unfortunately not calm down about the question how people deal with this machine.
The second has to do with separating the person and his public actions from each other in order to create an artificial figure whose functional characteristics one only has to deal with. In my eyes, this was Hannah Arndt's big mistake in her attempt to describe the Nazi Eichmann, by describing him as such a functional machine, in which only the desire for recognition remained, as the last remnant of a human being.
I actually know Amy Wax fairly well. Not as well as Tobais Wolff, but pretty well. She was my civil procedure professor when I was a law student. (I think I would have had her class in 2003, so a good while ago.) She was, in my memory, smarmy and a bit obnoxious in that class, but not more than some other professors I've had. I don't recall her saying anything in the class that could be understood as racists, but it's possible I don't remember well. But, I also knew her through taking part in the legal theory workshops that Bob mentions above. (*) I was a regular participant in those for several years, while I was a JD/PhD student, and also while I was a fellow/post doc at the law school for a couple of years, and for some other years when I was teaching in other parts of Penn or nearby. For these, the participants are expected to read the papers before hand. It was actually really common for Wax to not read the paper, and yet to still be quite aggressive in her questions. This was really pretty annoying and bad behaviour, but was not at all unusual. It also wasn't that unusual for her to say, or strongly imply, racists things in these workshops when the opportunity presented itself. Finally, when I was a PhD student (and still a law student, I think) I was teaching a class in the philosophy department for undergraduates on "philosophy and individual rights" or something like that. We had a set of classes on same-sex marriage. (This was before the Supreme Court case legalizing it.) Wax had written a paper arguing against it, and I assigned it. She came to the class and discussed the paper with my students. Somewhat to my surprise she was actually pretty mild in that case. She certainly didn't convince anyone. (The argument was based on "Burkean conservative" principles.) But, since the time I've known her, she's become more and more explicit in her racism. I mostly agree w/ Bob here, but my worry in particular is about cases where she's said things about Penn students in particular (some of which were in fact not true, such as about African-american students on law review.) Those cases seem to me to be ones where the protections of academic freedom have arguably been stepped over.
ReplyDelete(*) I didn't attend the particular workshop mentioned in the post, though I did get the email and circulating paper for it, which I read with enjoyment. I'm now not 100% sure why I didn't attend, but most likely it took place during a year I wasn't around Penn, or maybe when I was working as a law clerk. Too bad.
Just a brief comment. I totally agree with Professor Wolff's solution to the problem, and am glad to see that something like it is actually being carried out at Penn. But the practicability of the solution depends upon the fact that Penn (if I am not mistaken) is a very well funded institution which can afford to to carry a few obnoxious dinosaurs who do not contribute to teaching the core curriculum. What would you do with an Amy Wax at a financially stretched university which only had just enough staff to cover the key areas? If she really was so rude and obnoxious to minority students that they could not attend her courses, then they would effectively be deprived of the chance to earn a law degree at the university in question.
ReplyDeleteHopefully this does not happen too often, most institutions being sufficiently prosperous to deploy variants of the Wolff solution when faced with an obnoxious Wax. But for those that are not there could be a real dilemma.
I just found and skimmed what amounts to the Complaint against Wax, filed by her Dean with the faculty senate last June, and I can only say … OMFG!
ReplyDeleteI was afraid that I might have to revise my earlier opinion of Wax as a “repellent asshole” but, no, I think that pretty much sums her up.
That said, this is the kind of client you want as an attorney. All you have to do is manage to keep her out of the electric chair (so to speak) and you’ll look like a miracle worker. And if she does get strapped into old sparky, nobody’ll blame you.
(Of course, you’ll want to get paid UP FRONT in these kinds of cases.)
It’s neither here nor there, but I wonder if her behavior is some kind of performance art, a role-playing stunt that’s gone horribly awry. We all remember our mothers telling us, “Don’t make faces, you’ll get stuck like that!”
Wax seems to have taken on the persona of the Thanksgiving-Day-Table-Fox-News-Watching-Drunk-Uncle and amped it up to 11. It’s so extreme, I feel like it has to be some kind of a put-on.
The weak part of the case, as I see it, is this. The Dean asserts that “[t]he harm Wax causes when she repeatedly attacks the inherent value of our community members is real” (p.4), but in following up on the first of Wax’s victims you can see that she wasn’t damaged in any material way. She did indeed graduate and become an associate in a white shoe law firm. (She’s now a senior civil servant in Philly, so she is in fact working for the common interest).
I’d argue that the real measurable harm done by Wax has been to Wax herself—everybody hates her, she’s a laughing stock, and so on--and that the peculiarities of law school pedagogy (socratic method y'know) protects the student body from this kind of "harm".
Amy, if you’re reading this, my rates are quite reasonable …
Alas, Amy Wax has yet to contact me, so I’ll just have to put this up and bill her later, if need be.
ReplyDelete[DISCLAIMER: all rights reserved, use of this material amounts to an agreement for compensation at market (matrix) rates for the California bay area.]
Ladies and gentlemen (and low-lifes!) of the faculty senate …
My client Amy Wax is accused of harm, but really, everyone should be thanking her!
You should thank her, the general public should thank her, and her students ESPECIALLY should thank her!
Why? BECAUSE … In a day and age where the tide of liberal opinion is everywhere swamping us … In a world where the blandishments of bien-pensant liberals are virtually sinking us … in a community where free-range tomatoes are $6 a POUND at Whole Foods … in a situation where we’re sinking … where this stuff is coming over the gunwales, my client has done her students the service of BEING DIFFERENT!
She’s guilty of nothing more than adding some spice to what would otherwise be more of the same-old, same-old!
Let’s be real here! Most of what these students see and hear is what we in West Philly like to call “weak-ass bull-shit” (here let’s make a kind of raised-fist gesture, but be careful to not overdo it)!
In place of the plain oatmeal of PC, the cream of wheat, the Lite Beer of Ivy League education, Professor Wax is giving them something to chew on, something to savor, something ADULT … something with flavor, with fiber, and with full alcohol content!
What is my client but a walking talking Korematsu opinion? Is she not an animatronic Roger Taney? Does she not spout that old-time religion? Is she not the Ayatollah of Rock-and-Roll-ah, the Lord Humungus of Sansome Street, the WOMAN you LOVE to HATE?!?
Because, ladies and germs, law school means having to come to terms with some ugly-ass shit!
My client has merely done her students the favor of bringing this shit to life, in full color, texture, and yes, odor …
So not only should the Dean’s charges against my client be dismissed, she should receive a raise and a teaching award!
[and so on …]
On the old radio program "Fibber McGee and Molly" (which I am just barely able to remember from the 1940s) the wife, Molly, would frequently react to one of Fibber's lame remarks with the acid observation: "T'ain't funny, McGee."
ReplyDeleteAnd so it is with J. Pillette's satiric defence of "Professor" Wax.
David Zimmerman,
ReplyDeleteI found the defence funny.
Pillette is not going to depose Groucho Marx as the king of comedy, but he's amusing.
D. Zimmerman
ReplyDeleteYou can still hear, if you want to, 'Fibber McGee and Molly' (and other programs from the Golden Age of radio) on WAMU's The Big Broadcast, which airs weekly and is streamable online (which, given where you live, is how you'd have to listen to it, unless you have some kind of fancy short-wave radio that can pick up a Wash. DC station).
Whether you find it funny or not, there’s an argument to be made … it’s not necessarily in favor of Amy Wax, but it may let Amy Wax off the hook. She’s not your cup of tea; she’s not the Dean’s cup of tea; (and she’s not my cup of tea, to be honest) but has she done any real “harm”, as the Dean asserts? Sticks and stones, etc.
ReplyDeleteLet’s note that the “harm” done by Wax’s words is exactly the same kind of “harm” that is regularly adduced as evidence against discussing any kind of uncomfortable idea. Forget about the use-mention distinction, even using plain language instead of the latest neologism can get you into trouble.
A certain DEI professional (and law professor!) at Rutgers, Stacy Hawkins, has argued—in print—that feelings need to be prioritized over academic freedom, that the avoidance of “harm” is the proper rubric to be employed. I would have thought that the danger from this would be obvious to everybody, but I guess not.
And by the way, I'm perfectly aware that lower-middle-class Irish Catholic (Aspiring Lace Curtain Division) women don't find this sort of thing to be funny. I'll take your critique as a compliment.
ReplyDeleteBrian Leiter corrects the NY Times on what constitutes academic freedom.
ReplyDeletehttps://leiterlawschool.typepad.com/leiter/2023/03/ny-times-catches-up-with-the-amy-wax-case-at-penn.html
Don't let her teach courses, what is that a punishment? Everybody will start spouting racist views to get out of teaching.
ReplyDeleteNo joke, if you ardently despise somebody's comments, maybe Wax's comments, but the issue with what is 'undeniably controversial' is binary, I think. Fire her or don't. I figured that tenure was just an extra bureaucratic hoop, tenured professors get fired all the time. I thought it was just, like, 'a right to a hearing'. It never protected anybody when it came to sexual harassment, but that's not like a unique exception. Academic tenure is a contract, is how I imagined it. I figure that ultimately, the understanding that tenured professors can't be fired is a misconception. In reality, tenured professors can and do get fired.