John Pillette, Google tells me that there have over the years been 44,569 comments on this blog. I think yours is one of my all-time favorites. Thank you for making my day.
I have heard from several people the comment that "punishing" Prof. Wax by banning her from teaching courses in the department will simply have the effect of encouraging others to take this way of freeloading. I must confess I was stunned and totally blindsided by this observation. The notion that someone would brand himself or herself as a homophobic racist, gain the contempt and detestation of his or her entire cadre of professional associates, make himself or herself a laughingstock in the world, all in order to get out of teaching some courses suggests to me that I am more out of touch with the present generation's attitude toward work than I realized.
Let me say, by the way, that the concern with Prof. Wax at the University of Pennsylvania does not arise out of faculty uneasiness being around someone espousing such views, but rather as a response to the extreme distress experienced by students at the law school, primarily but by no means exclusively students of color.
But I think I shall stop blogging about the subject, because quite clearly I am totally out of touch.
57 comments:
No, Prof. Wolff, you are not out of touch. You are standing up for decency and mutual respect in education, values which are well worth standing up for.
Here is what the N.Y. Times article states that Prof. Wax has engaged in during her classes. In one course, while taking roll call of a series of “foreign-sounding names,” she finally stated of one student, “Finally, an American.”
In another class, a student reported that she used the word “Negro” in a “snide and smug” manner, and in another class reportedly said, “He was a Black man” with a “distasteful” tone. Now, these descriptions may be highly subjective, but if accurate, Prof. Wax has no business being a professor of any subject at any institution of higher education, Ivy League or otherwise. These are not the expressions of an artificial chatbot. They are the real and offensive statements of a human being who purports to be an educator.
She may have every right to espouse her right-wing, racist ideology outside the classroom, but she absolutely has no right to do so inside a classroom, and if these reports are accurate, she should be terminated immediately, and let her seek redress in the grievance procedure, or before the EEOC/courts. She has no business teaching. And this is not, should not be, regarded as out of touch – it is entirely justified if we want to have decency and mutual respect in education. And why wouldn’t we?
The problem is that her CV makes her a perfect poster child for the Right's "woke" nonsense and the MSM has proved itself incapable of accurately reporting cases like this. Note the skewed takes on the recent Duncan incident at Stanford Law:
https://slate.com/news-and-politics/2023/03/trump-judge-kyle-duncan-stanford-law-scotus-audition.html
She definitely shouldn't be teaching but as just as firing would be, it may not be the best move - rain falls on the just and unjust etc.
One need not believe that many, or even any, people will fake racist views to get out of teaching; one need only believe that an appreciable number of racists will take a get-out-of-teaching-free card as an incentive to stop moderating/camouflaging their views in the classroom. That is enough to make the teaching ban as sole sanction undesirable.
"...one need only believe that an appreciable number..."
I believe that for academics the professional, psychological, and social costs of breaking bad just to get a paycheck create a de minimis situation.
Leiter has had several posts on the subject of Amy Wax in his philosophy and his law blog.
Here's the latest I found in a Google search. His position is quite nuanced.
https://leiterreports.typepad.com/blog/2022/07/penn-dean-calls-for-major-sanctions-which-could-include-termination-against-tenured-law-professor.html
aaall,
Well then, fire the unjust, and let the just open their umbrellas!
Fiat justicia ruat caelum!
Marc, we are in a war. Strategy and tactics matter. To attack or retreat in a given battle will be driven by larger considerations. Meanwhile, chops are being licked on the other side:
https://www.theamericanconservative.com/the-right-should-celebrate-the-end-of-academic-freedom/
We know what is happening in Florida. Prof. Leiter has a post on current attempts to end tenure in Texas. Prof Wolff's suggestion would neutralize her ability to do harm. That may be enough.
aalll,
Those of us who are committed to protecting academic freedom do it no service by blurring the lines between genuine expressions of creative thought which deserve its protection, and insults and racial or ethnic slurs in a classroom, which do not deserve its protection. Prof. Wax engages in the latter, and she is not entitled to the mantle of the protection of academic freedom. She should be fired.
And academic freedom is being attacked on the left, as well as the right. For the last three years I have been engaged in a legal battle in federal court in New Jersey in two cases, one of which is currently on appeal in the Third Circuit Court of Appeals. Both cases involve the application of a New Jersey policy titled the Employment Policy Opposing Discrimination In The Workplace, which is actually a speech policy being passed off as an anti-discrimination policy. I have been contending, as an attorney admitted pro hac vice, that the policy is violates the First Amendment because it is not content and viewpoint neutral, i.e., it is selective in punishing speech which is deemed not politically correct. In the first case, a professor at a public university in New Jersey was chastised and disciplined because she respectfully used the word “Negro” when reading from a literary work. She was harassed by the university in question until she was forced to resign in order to protect her mental health. In the second case, which is pending in the Third Circuit (in which oral argument was held on March 22, 2022, and we are still waiting for a decision by the three-judge panel almost a year later), a licensed New Jersey attorney who was hired to teach business law at the same university was terminated because, in the course of teaching immigration law in the class, she had the temerity to state that under current immigration law an undocumented worker is prohibited from working in the U.S. Hispanic students who were offended by this accurate statement of the law complained to the dean that the associate professor was racist; the dean decided that her comment violated the N.J. policy, and she was fired.
Academic freedom should protect those, like the terminated attorney in N.J., who deserve it, not racist professors who use the classroom to air their bigotry, like Prof. Wax, who do not.
Marc,
I believe what aaall and others are concerned about is that if Wax is fired, she will be
publicized as a "martyr to free speech", cancelled by the woke left, by rightwing media.
The rightwing media, like it or not, seems to be very able at promoting this kind of cause or pseudo-cause and lots of middle of the road non-political people fall for their propaganda.
The left seems less able at self-promotion, probably because first of all, it tends to believe its own bull-shit and second, because of its own internal contradictions such as
the two utterly stupid cases that you mention above.
S.W., Marc understandably approaches this as an individual case to be handled and on to the next one. We haven't lived in that world for sure since 1995 and probably since the 1970s neoliberal heel turn. This is what we currently face:
https://www.google.com/search?client=firefox-b-1-d&q=INDEPENDENCE+DAY+WE+WANT+YOU+TO+DIE#fpstate=ive&vld=cid:b5082441,vid:ZlawibQ_QKI
The question is whether Wax has done real damage to either the school or the students. As to the first, I think any damage is limited by the context here. I’d say that Penn’s law school is only nominally part of the real “academy” that we need to worry about (Penn qua research university and Penn qua college of liberal arts). I don’t think that Wax’s repellent opinionating can really do that much damage to either of these. Let me illustrate what I mean.
On the evening of my very first day of law school (U. of Maryland, class of ’98) we all gathered in Westminster Hall (where Edgar Allen Poe is buried in the basement!) to hear the Law School Dean’s *Solemn Peroration* on this *Momentous Occasion* … I can only remember the first eleven words he spoke, which were, verbatim: “In the words of the great English poet, William Butler Yeats …”
To paraphrase that great Israeli statesman, Yasser Arafat, “what the actual fuck?” I’d been at law school for less than 2 hours and Dean Donald G. Gifford had revealed himself as a philistine who, in pretending to know literature, had instead only revealed himself as an utter poseur. I’ve never seen, before or since, a more perfect example of *stepping on one’s own dick*, as the vulgar yet appropriate expression goes.
I swiveled my head, first one way and then the other, expecting to catch someone’s eye, but no luck. Everyone seemed to be earnestly taking in this new information, just in case it showed up on an exam: “Yeats, poet, English (deep thoughts) … got it.” It could have been worse, I suppose. Gifford could have also mispronounced it as “yeets”.
My point is that Wax is a law professor and a C-list talking head. She’s not part of any really substantive humanistic discipline. She’s not Martha Nussbaum. Does anybody (apart from the morons who watch Tucker Carlson) really care what she has to say? Does anybody who’s anybody take her seriously? I don’t think so. She’s just a tiny portion of the sulfurous tide of right-wing opinion, lapping the shore.
The damage that her noxious sociologist-manque opinions could conceivably do is also limited by law. She’s so clearly a non-expert (under FRE 702), that her opinions are worth no more than Joe the Plumber’s. Wax’s expertise is in neurology, not sociology, so—as a matter of law—what she has to say about ethnic achievement is not worth consideration … unless and until she completely loses her mind, goes full-Julius-Streicher, and asserts that her various personal uber- and unter-menschen have identifiably distinct brain tissues.
As for her law students, I seem to recall that most all law school grading is carefully anonymized. I could be wrong on this, but I don’t think she could actually manage to discriminate against “the Blacks” and “the Asians” (as she likes to say) even if she tried. But Wax is repellent to everybody, including (maybe even especially) the Jews and 1950s-style goyim she appears to think comprise a moral elite. She is an embarrassment all around.
But so what? The world is full of Wax mannequins. Only a 12-year-old should be allowed to be astonished to discover a repellent asshole in a position of authority, and then only once.
John Pillette,
Well, you are probably correct that nobody who is anybody takes her seriously, but the students in her classes whom she has verbally abused and insulted are not yet somebodies and they have no choice, being her captive audience, but to take her seriously. Judging from the comments of students included in the N.Y. Times article, her degrading comments have caused some students emotional pain, which, they will no doubt get over with time, but it is still unacceptable at any institution of higher education, let alone an Ivy League university, to allow a professor to run rough shod over the sensitivities of her students. She should be fired, and let the legal and zeitgeist chips fall where they may.
aalll,
The scene you selected from Independence Day supports my position. If we are in a war to the death with alien forces which seek our demise, then, as Bill Pullman declares, we should nuke them – i.e., in Prof. Wax’s case, this means professional termination.
We're in the presence of cancel culture, right?
Marc, "nuking" didn't work. Without a PTSD'd out vet/ abduction survivor lucking out with a surgical strike, Earth was on the way out. As I've pointed out, wingnuts tend to flame out - sometimes spectacularly (CPAC used to be taken seriously). A little more rope can't hurt.
Anon, reducing how to deal with an abusive racist in an environment in which important issues like tenure and academic freedom are under siege in some states to "cancel culture" is special.
On a happier note I see that Michigan is likely to repeal their right to work law. The Right has beavered away for decades inserting poison pills. Good to see some rollback.
Anonymous II, whoever you are, thank you for your comment.
I have to re-watch Independence Day. I did not even remember the scene which aalll posted.
Regarding Michigan, yes, it is thankfully set to undo the right-to-work law which the Republicans enacted. For the first time in decades, the Democrats control both the governorship and both houses of the legislature. Reversing right-to-work is just the beginning. Gov. Whitmer and the legislature are preparing a slew of other legislative enactments to reverse years of Republican domination. I am hopeful that they revoke a number of tort reform enactments which have made it almost impossible for plaintiffs to prevail in medical malpractice lawsuits, for example.
John Pillette,
You are of course correct to point out that William Butler Yeats, strictly speaking, was Irish. Out of curiosity, I checked the list of Nobel Laureates for Literature to see how they listed Yeats. In the Wikipedia article, https://en.wikipedia.org/wiki/List_of_Nobel_laureates_in_Literature, they do list Yeats as Irish. But there is this curiosity. Yeats won the Nobel in 1923. George Bernard Shaw won two years later, in 1925. Yet for country of origin, they list both Ireland and the United Kingdom for Shaw. I wonder why the difference.
M.S.,
Shaw moved to London as a young man of 20 and spent the rest of his long life in the UK, not Ireland. On Shaw's relation to Ireland, see Michael Holroyd, Bernard Shaw vol. 1 (Random House, 1988), pp. 4-5.
(I'm breaking my earlier promise not to comment further here. But my future comments, if any, will be very rare.)
LFC,
Thank you for breaking your promise and responding to my question. We are both, by the way promise-breakers. Not a good thing, I imagine, on a blog whose administrator is a Kantian expert and devotee.
I’m afraid I can’t see the students at an Ivy League law school as hapless victims. I’ll submit instead that they are all, to a man and woman, ambitious young toads who will soon go to work as white shoe lawyers and in that capacity will bill 2200 hours a year working for the interests of people like Jeff Bezos.
One or two may go into what passes for politics, one or two may go into the NGO industrial complex, one or two may go into what passes for journalism, but none of them (I predict) is going to be working to promote anything like the common interest. As a practical matter, how could they possibly do that, with $500,000 in student loan debt? Their paychecks will quickly bring them into ideological alignment with the people they work for.
Of course, should one or all of them decide to hire me, pro hac vice (my schedule is pretty open), then this matter becomes an injustice of world-historical proportion, my clients will have suffered extreme injury, no amount of money could possibly ever make them whole again, etc., etc.
Marc and LFC,
It seems to me (I have no idea about Kant nor do I much care) that there are two kinds of promises.
One kind are the promises one makes to others, for example, I'll pay you on Monday or I'll be there on the corner waiting for you at 3PM. It's shitty to break those promises because it affects other people.
Another kind are the promises one makes to oneself: I'm going to walk 10,000 steps a day.
Those promises only affect oneself and no one cares much.
I'd say that your promises not to comment here are of the second sort. No one is harmed by your commenting or not commenting. Even though you both made public promises, keeping or not keeping them has more to do with your self image than with how others are affected.
Speaking of student loan debt and high salaries: Tuition for my three years of law school at the University of Chicago (1960-1963) totaled $3,750. With that degree, I was hired by the Justice Department at grade GS 11, which paid $9,221 per year, a salary that was 245% of my tuition costs. At current rates, three years at UofC law school is $219,955. A GS 11 in DC starts at $78,592, a salary that is 35.7% of tuition costs.
John Pillette,
As cynical as I am about the legal system – and believe me, I am extremely cynical, particularly given my experiences in two lawsuits this past February – I categorically reject your cynicism regarding the law students at Yale, and their prospects of earning mucho money upon graduation. This issue has nothing to do with the financial prospects of Yale Law School graduates. It has to do with whether Prof. Was is qualified to be a professor of law at Yale, or at any other respectable law school for that matter. You trivialize the emotional pain which she has inflicted on some students who have had the misfortune to be in her classes. You do not know the degree of emotional distress several students were caused by Prof. Wax’s insensitive and ignorant comment that based on their surnames, they did not quality as “true Americans.” As a Jew, I am particularly incensed that a professor who purports to be an Orthodox Jew would make such a comment about anyone whose parents emigrated here from another country. I dare say that “Wax” is not the original surname that her ancestors came to the Untied States bearing. And neither you nor I can know the degree of emotional pain Prof. Wax caused Black students attending Yale Law School by being told that she does not expect many of them to attain the 50 percentile grade in her class. Although my dance card is quite full, I would be more than happy to represent one or more of these students if I were admitted pro hac vice to the Pennsylvania bar in a lawsuit against Prof. Wax for the intentional infliction of emotional distress on a captive audience of students. And I would include Yale University as a co-defendant for vicarious liability for continuing to employ her as a professor, and continuing to allow her to express her biased and racist views to students. Qualified immunity would not protect the University for its gross negligence for continuing to subject its laws students to her intentional abuse.
That said, in light of some of the comments above regarding free speech and its scope, I believe that a short seminar on freedom of speech and its constitutional context under the U.S. Constitution may be in order. As I pointed out above, since Yale University is a private educational institution, and therefore the Bill of Rights does not apply to it, Prof. Wax has absolutely no free speech rights which are protected by the 1st Amendment. Yale could fire her in a heart beat if it wished – even for comments she has made outside the classroom, on the internet, for example – and she would have no recourse under the Constitution. Most people do not know, or understand this, about the Constitution and free speech. I am often reminded of an incident I experienced while filling my gas tank at a gas station and a teenager pulled up with his radio loudly blaring rap music. I politely asked him to lower the sound of his radio, and he indignantly responded that he had a free speech right to play his radio as loudly as he wished. I, uncharacteristically, not knowing if the kid was armed, bit my tongue and did not retort, “No, you do not have a free speech right to afflict my eardrums with your lousy music. I am not the government.”
(Continued)
What most people do not know is that the free speech rights of public employees is also strictly circumscribed, and they do not have quite the same free speech rights under the 1st Amendment as the rest of us do. I am writing this to dispel any preconceptions that if Yale were in fact a public university, Prof. Wax could not be disciplined for her reported comments because she would enjoy 1st Amendment protection. In point of fact, even if Yale were a public university, Prof. Wax could be disciplined for much of the speech she has engaged in, both at Yale and outside Yale, without compromising her freedom of speech as it has been interpreted by the U.S. Supreme Court. This is due to the fact that the S. Ct. has recognized that in public employment there are duties and obligations which arise out of an employee’s public employment which restrict what the employee may say, both at the site of employment, and outside the site of employment, which impact the right of the public employer to manage the employment site. (Since my comment yesterday, I have researched Pennsylvania law to determine if Prof. Wax enjoys greater free speech protection under the Pennsylvania Constitution than under the U.S. Constitution, and indeed she does. Article 1, § 7, of the Pa. Constitution states: “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” The Penn. S. Ct. has interpreted this provision to provide greater free speech protection than does the 1st Amendment of the U.S. Constitution. See Pap’s A.M. v. City of Erie, 371 Pa. 375 (Pa. 2002). Regarding the effect of this provision on Prof. Wax’s rights, more later.)
In the first case to address this tension between a public employee’s right of free speech, and the public employer’s right to manage and administer the work site, Pickering v. Bd. of Ed., 391 U.S. 563 (1968), a public-school teacher was terminated for having written a letter to the local newspaper criticizing the School Board allocation of funds between its athletic and scholastic endeavors, and for claiming that the Board was failing to inform the public accurately of how taxpayer monies were being dispensed. The S. Ct. reversed the termination, holding that with respect to a public employee’s 1st Amendment free speech rights, a court must balance the employee’s right to speak as a citizen addressing matters of public concern, versus the employer’s right to manage the employee speaking as an employee. Here, the Court held that when the teacher submitted the letter, he was speaking as a citizen, not as an employee, and that his termination violated his 1st Amendment right. This analysis has become known (in legal circles, of course) as “the Pickering balancing test.”
(Continued)
Application of the Pickering balancing test has yielded varied results, sometimes which are counter-intuitive. In Connick v. Myers, 461 U.S. 138 (1983), an Assistant District Attorney in New Orleans responsible for trying criminal cases was faced with being transferred to a different section by her boss, District Attorney Harry Connick (the father of singer Harry Connick, Jr.). She opposed the transfer and circulated a questionnaire among her co-workers concerning the department’s transfer policy, office morale and the need for a grievance procedure. Harry Connick terminated her for insubordination. She sued in federal court, claiming that her conduct constituted free speech protected by the 1st Amendment. The S. Ct. disagreed, holding that she was acting as an employee addressing a matter of personal concern, not as a citizen addressing a matter of public concern. With regard to the former, the courts had no business intervening and telling a public employer how to run its office.
In Rankin v. McPherson, 483 U.S. 378 (1987), the Court swung in the opposite direction. The plaintiff, a county constable officer whose functions were purely clerical, and had no involvement with the public, in a private conversation while having lunch with a co-worker on the day that the assassination attempt on President Reagan occurred, she stated to the co-worker, “[I]f they go for him again, I hope they get him.” The conversation was overheard and reported to the Constable, who fired her. In a decision written by Justice Thurgood Marshall (an opinion which definitely would not be written today by his successor, J. Thomas), the Court held that the employee’s statement in a private conversation was protected by the 1st Amendment and her termination was therefore unlawful. Justices Scalia, Rehnquist, White and O’Connor dissented. (To his credit, J. Powell surprisingly concurred with Marshall.) What distinguishes Rankin from Connick? Two things – the employee’s conversation in Rankin was private, and her statement was not about a personal employment issue.
(Continued)
Since the Pickering, Connick and Rankin decisions, the Court has proceeded to narrow the scope of the Pickering test, with some rather astounding results. In Waters v. Churchill, 511 U.S. 661 (1994), a nurse at a public hospital made some allegedly critical remarks about her department to another nurse who was considering transferring to that department. Word got back to first nurse’s supervisor and she was ultimately fired. There was a dispute, however, regarding what she had actually said to the co-worker. The co-worker claimed that she had made critical remarks both about her department and about the department’s supervisor. The nurse, and two other nurses who overheard the conversation, however, denied this. The nurse claimed that she had in fact complimented the supervisor and that under Connick, her speech was protected, since it was not about a personal concern. The S. Ct. held that since what precisely was said could not be determined for certain, the termination could be sustained on the basis of how the employer reasonably perceived what was said, regardless whether the perception was contrary to the actual, but indeterminate, facts. (Yes, a rather astounding outcome for those who think that the purpose of the courts is to determine the truth. One would think that the indeterminacy of the facts should weigh in favor of the free speech right of the employee, not in favor of the management rights of the employer. The decision is perhaps explicable by the fact that the opinion was written by Justice O’Connor, who four years later would be the decisive vote in Bush v. Gore, a vote which she later sought to disown as being an error in judgment.)
In Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1994), the Supreme Court vacated a prior decision which had been in favor of Prof. Leonard Jeffries, who was the chairman of the Black Studies Dept. at the City University of New York. The CUNY administration had demoted him based on a speech he can given in Albany which contained what some regarded as anti-Semitic comments. Prof. Jeffries sued in federal court, arguing that the demotion for something he allegedly said off-campus violated his free speech rights under the 1st Amendment. The case went to a jury, which ruled in favor of Jeffries. The Second Circuit affirmed. The Supreme Court granted certiorari, vacated the Second Circuit decision, and instructed the Court to reconsider its decision in light of its decision in Waters. On remand, the Second Circuit reversed its prior decision in favor of Jeffries, and held that his removal as chairperson of the Black Studies Dept., based on the administration’s perception of what he had said in his Albany speech, did not violate his 1st Amendment rights.
(Continued)
Then came the gobsmacking decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the plaintiff, Ceballos, was a supervising district attorney who was asked by a criminal defense attorney to review an affidavit which the police had used to obtain a search warrant against his client. The defense attorney thought that the warrant contained inaccurate factual assertions, invalidating the warrant. After reviewing the file and the affidavit, Ceballos agreed. Ceballos prepared a memorandum for his supervisors recommending that the prosecution be dismissed because it relied on evidence which was obtained using an invalid search warrant. His position was opposed by his supervisors and colleagues. Ceballos then voluntarily testified at a court hearing to address a motion to suppress brought by the defense attorney. Ceballos testified that in his opinion the warrant was invalid. The trial court denied the motion to suppress. Ceballos’s supervisors proceeded to change his work assignments to a different court and denied him a promotion. Ceballos sued claiming that the actions were retaliatory for is testimony in favor of the defense motion to suppress, and therefore violated his right to free speech under the 1st Amendment. The federal District Court granted the department summary judgment and dismissed the lawsuit. The Ninth Circuit Court of Appeals reversed. The S. Ct. granted certiorari and, astoundingly, reversed. In a majority opinion written by Justice Kennedy, concurred in by J.’s Roberts, Scalia, Thomas and Alito, the Court held that the 1st Amendment does not protect a public employee who engages in conduct in the context of his employment as a public employee, his conduct is not protected by the 1st Amendment. “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Thus, a public employee who takes action which the public employee believes is dictated by his/her job duties as a public employee, it is not protected by the 1st Amendment, and if a supervisor takes issue with that conduct, the employee can be legitimately disciplined for having taking action which his/her supervisor(s) disagree with, regardless whether the employee acted in good faith. We have now entered Alice In Wonderland territory.
Justices Stevens, Souter, Ginsburg and Breyer dissented. J. Souter (a former student of Prof. Wolff and a Harvard Law School alumnus) in particular expressed concern regarding the consequences the decision would have on academic freedom at public universities, stating, id. at 438: “This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to … official duties.’” To date, the S. Ct. has not decided any case which addresses J. Souter’s concerns of the ramifications of Cebellos in the public university sector.
(Continued)
It is clear, then, that even if Yale were a public, rather than private, university, Prof. Wax would not enjoy any 1st Amendment protection for her abusive and degrading comments to students who fail to meet her narrow-minded standard for what qualifies as a “true American,” or whose skin color condemns them automatically to the lower 50 percentile in her law courses. And we would not even have to enter the Alice In Wonderland of Ceballos to reach this conclusion. She would lose just on the Pickerging balancing test. Since Yale is not a public university, her 1st Amendment protections are non-existent.
Does the more expansive protection of free speech under the Pennsylvania Constitution offer her any safe harbor from disciplinary action by Yale. I do not believe so. The question comes down to whether by expressing her bigoted and racist views in class she has abused her right to free speech under the Pennsylvania Constitution. I am quite confident that a Pennsylvania court would readily conclude that she has abused that right, and even a jury would not protect her, particularly if any of the jurors were African-American.
So, I stand by my previously expressed position: Yale should fire Prof. Wax, and the sooner the better.
Wax teaches at The University of Pennsylvania Law School, not Yale.
I want to apologize, sincerely, for my last comment.
In speaking about the law students at Penn (or Yale, or Stanford, or Chicago, or Boalt, or UCLA, or Columbia, or NYU, or Michigan, or Harvard, or Georgetown) I said that “[t]heir paychecks will quickly bring them into ideological alignment with the people they work for”.
This was incorrect. What I should have said was “[t]heir paychecks will quickly bring them into ideological alignment with the people *for whom they work*".
Yikes, now Yale can sue me for defamation. My apologies to Yalw Chalk it up to senility. I correctly identified University of Pennsylvania in my previous comments. And the Pennsylvania Constitution would not apply to a professor at Yale, which (I know this one), is located in Connecticut.
Well, both Yale and U. of Pennsylvania are private universities, so all the same arguments apply.
John Pillette,
Some apology.
Which reminds me of a Groucho Marx joke: The answer to success in the business world is sincerity – if you can fake that, you’ve got it made.
Academic freedom and tenure are used effectively as a cover for all sorts of outrageous speech by professors. The Wax case is nothing new. She hurts the feelings of some people and is generally a jerk. So what? The students are studying to be lawyers, so they may as well get used to being hated. But I think it’s better to leave her alone (preferably really alone) than to make a right-wing free speech martyr out of her. Lots of free publicity that will be put to bad use. My younger son graduated from Northwestern in 2006. During his senior year there was a big blow-up on campus about one of the professors (Arthur Butz) in the electrical engineering department, who was a notorious holocaust denier. (He published an infamous book on the holocaust in 1977, seven years before my son was born.) His views on the holocaust weren’t news to the senior NU faculty or administrators—it was a recurrent thing that every several years the students would newly find out about it and demand that Butz be fired, etc. And it was always academic freedom and tenure to the rescue. Anyway, as I said, this was in 2006—but the guy had been on the faculty since maybe the ‘60s and had had tenure since 1974. There were calls for faculty censure of him, and the president of the university issued a letter condemning him and asking him (I use the word asking here on purpose) to leave the school. Not much happened. He’s still there, and seems to still be teaching courses. Maybe his punishment, such as it is, is that after maybe half a century he’s still an associate professor.
After a brief, pleasant interlude, some people are not only back, they're back to their old commenting habits. Too bad. RPW please take note.
Fritz Poebel,
That's a very good point. If future lawyers can't take some hostile comments, they better
look into another business.
Law School isn't a creative writing class designed to build resilience in people suffering from post traumatic syndrome.
For the record, I studied literature, not law, by the way.
Sigh. Anon, I know, I know, what can I do?
Last year I was hired to straighten out the aftermath of an academic tenure case that had been completely mishandled by a professor’s attorney at the administrative level, at a private university in California. These are fact-intensive inquiries, not courtroom melodramas.
The questions are narrow and boil down to whether or not the professor violated the terms of employment as expressed in the contract between the parties. “Contract” here is quite broad and includes the University’s constitution and any relevant federal contracts.
Long story short, it’s difficult to fire a tenured professor. He or she needs to have done a number of quite specific things, e.g., “(1) on [date x], professor so-and-so did [this thing]; (2) on [date y], professor so-and-so did [this thing]; (3) on [date z], professor so-and-so did [this thing]; these things violate provisions a, b, and c, respectively”, and so on.
It goes without saying that if your fellow academics hate you, they’re going to slit your throat. If they like you, they may let you slide. I’ll wager that Wax’s behavior—which has been consistent over the years--does not meet this threshold, because she would have already had her throat slit.
There are of course political calculations (is Bill Koch going to yank funding for the new snack bar as a result of his pet professor getting canned?) but those typically do not make it into the record.
Professor Wolff,
No one has strayed off topic. Some people are more vocal and more vociferous than others (and that occurs in a graduate seminar as well), but so far even the most insistent participants have kept to the subject introducted by your original post above.
I agree with SW that the comments have been right on the topic of Wax's comments and the free speech issues they do or do not raise.
anon. @1:46 p.m.
Please take note that In this entire thread I have made one -- exactly one -- extremely brief comment. So you can take your snide innuendo about "some people" and go jump in the lake.
John Pillette,
While I agree that, generally, it is difficult to enforce disciplinary action against a tenured professor, particularly termination, it is not without precedent, even at a public university where the professor enjoys the protection of the 1st Amendment, per the case I referred to above which occurred at a public college in New Jersey, as well as the demotion of Prof. Jeffries at CUNY. See also Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) (although some of suspended professor’s classroom speech, which he laced with profanity, was not protected as addressing matters of public concern, other speech he engaged in was protected; however, applying the Pickering balancing test, the Community College’s interests prevailed over his 1st Amendment rights, and the trial court wrongly issued a preliminary injunction reinstating the professor to his teaching duties); Edwards v. California University of Pennsylvania, 156 F.3d 488 (3d Cir. 1998) ( tenured professor’s 1st Amendment rights were not violated when he was suspended for a semester because he introduced into his course on the use of educational media, materials advancing his personal religious views; university retained final decision making authority on contents of course curriculum). Since Prof. Wax is teaching at a private university, her free speech rights are considerably less than those professors who were disciplined at public colleges/universities in the above cases, and the more expansive free speech right she enjoys under the Pennsylvania Constitution do not give her license to verbally harass and degrade students in her classes.
Marc, I was the anon north of here. Besides what they may face as lawyers, everyone who matriculates at a law school has had 15 - 17 years of prior schooling. Some will also have had a few years in the military or in private employment. None will have escaped having to deal with teachers, administrators, and others with authority as well as classmates who are jerks (Ted Cruz as a classmate?). Better not to die on this hill.
aalll,
I do not know which “anon.” your are referring to. There have been several north of here.
This has nothing to do with students, particularly law students, developing a thicker epidermis against insults. This has to do with the Prof. Wax’s qualification to be a law professor where it has been reported that she has engaged in speech in her classroom in which she has engaged in ethnic and racial belittling insults of some of her students. It is well known that verbal chiding and razzing is part of the toughening which law school professors are supposed to use, as anyone would know who has seen the movie The Paper Chase. I was chided by my Civil Procedure professor for (this is hard to believe) being too loquacious in my responses. But mocking a student for the ethnicity of his/her surname or the predictive function of a student’s skin color is beyond the pale and not part of the toughening which law school is supposed to prepare future lawyers for. Any judge who made a snide remark about an attorney’s ethnicity or race would be subject to discipline under the state/federal Judicial Code of Conduct, and a law school should not be willing to accept such harassment perpetrated by a law professor, anymore than it would be acceptable if committed by a judge.
I frankly find it disappointing that commenters are willing to give Prof. Wax a pass for her deplorable conduct as part and parcel of academic freedom. Is this what the age of Trump has inured us too? It is not protected by any concept of academic freedom, nor should it be. She is a disgrace to both law professors and to the legal profession, and should be terminated. I am willing to fight on this hill, and have no concerns that it will somehow become lethal.
Sorry, RPW, I have no advice as to how you might remedy the evident problems that have returned.
As to jumping in the lake, LFC, I wasn't actually referring to you or to any others whose responses are not ego driven, whose responses are in fact welcome for being brief and informative. thanks.
I hope that I am not being presumptuous in urging Professor Wolff to take some pride in the fact that many of us find his excellent blog an occasion for engaging in interesting conversations, even if they sometimes depart from the topic of his OP.
At this moment when academic freedom is under attack by the right in states like Florida and Texas and by certain sectors of the woke left (in the cases Marc mentions above), I for one
will take a stance of defending academic freedom as broadly as possible and if that includes letting someone as disagreeable as Amy Wax keep her job, well, that's the price to pay for an extremely valuable principle.
Marc, I used the Independence Day cut and then replied to your reply but hit the wrong reply function. Perhaps the diference is that there are matters, including court cases, in which there are larger issues then the individual case. Then there are cases like 303 in which the motives of the plaintiffs lead to bogus filings.
s.w., when you adopt the language of those who would oppress you...
https://twitter.com/vanguard_pod/status/1635749284355211264?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1635749284355211264%7Ctwgr%5Ec11278f57480e014619e5f5962e581f1a018dd04%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.lawyersgunsmoneyblog.com%2F2023%2F03%2Fin-which-briahna-joy-gray-inadvertently-does-a-service-to-mankind
Wax is a real gem.
Proudly antisemitic too.
https://www.youtube.com/watch?v=h1vQFMxPk54&t=851s
https://www.youtube.com/watch?v=h1vQFMxPk54&t=1333s
s. wallerstein said... March 15, 2023 at 6:50 PM
“At this moment when academic freedom is under attack by the right in states like Florida and Texas and by certain sectors of the woke left (in the cases Marc mentions above), I for one
will take a stance of defending academic freedom as broadly as possible and if that includes letting someone as disagreeable as Amy Wax keep her job, well, that's the price to pay for an extremely valuable principle.“
@s.w.
that may be politically expedient. And it may also be practicable in individual cases. And as long as individual cases remain, the system can very likely endure it. But, isn't science also committed to the truth? Where are the boundaries? Especially when someone, by virtue of his profession, can signal that he is entitled to claim the seal of quality of scientificity. I think she also stands in front of the students in the lecture hall with this claim. There, at the latest, this claim should be able to turn into credibility so that teaching can get off the ground at all. But then someone stands there who makes a sweeping judgment about 1.2 billion "South Asians?".
In the interest of full disclosure, below is a link to an opinion piece, dated 2018, in support of Amy Wax.
https://www.washingtontimes.com/news/2018/feb/20/professor-amy-wax-and-the-brownshirts-on-campus/
Marc, I assume your referencing that piece was intended as humor. Wax defended by R. Emmett Tyrrell! Anyway, it kicked my way back machine into gear. I found Tyrrell sometimes entertaining back in the 1960s and 70s but he has always been a Movement apparatchik and was a key actor in initiating our current woes (Brock, Scaife, the whole filthy business) back in the 1980/90s. I didn't realize he was still alive - hardly surprising to find him glibly opining in a Moonie journal apparently based on a piece in the WSJ. While a paywall will eventually be triggered, one might want to read a few more of his recent pieces.
aalll,
Glad you liked it. I thought it was a rather creative observation.
Holmes wrote,"if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."
Thought, without the freedom to articulate it, is meaningless. Still, I don’t see how this freedom requires a university to avoid dismissing a tenured professor who makes disparaging remarks in the classroom about ethnic or religious or racial groups any more than it prohibits a person from TRUTHFULLY shouting Fire! in a crowded theater. (In Holmes’ famous quote, he refers to “falsely” shouting fire.)
That said, would it be wise? I’m inclined to think that it would. Perhaps the smart thing to do would be to replace her with a conservative who deals in ideas and not ridicule.
I found the two following scholarly studies of hate speech informative, not least because they take a comparative view of the matter—not all countries engage with the same sort of hate speech and not all countries deal with it in the same way. Perhaps they may encourage thinking about how it might be more comprehensively engaged with in the US, i.e., shift the focus away from one person to a focus on a societal/political problem?
https://www.annualreviews.org/doi/full/10.1146/annurev-polisci-051517-012343
https://journals.sagepub.com/doi/pdf/10.1177/2158244020973022
To R McD and others:
Regarding hate speech, should the right to free speech under the 1st Amendment protect the right of members of the Ku Klux Klan picketing a predominantly African-American church on a Sunday morning, on a public street in front of the church, using signs which state such things as: “N…g.. mothers give birth to crack babies”; and “N…g...s do not deserve the right to vote”?
For a constitutional argument that the 1st Amendment does not, and should not, protect ethnic or religious hate speech, see Lasson, “To Stimulate, Provoke, Or Incite? Hate Speech and the First Amendment,” 8 St. Thomas Law Forum 49 (1991). You can find an abstract here: https://scholarworks.law.ubalt.edu/all_fac/832/
Here is the latest of several dialogues available in Youtube between black conservative and contrarian Glenn Loury and Amy Wax.
https://www.youtube.com/watch?v=4gJv2BRW7mc
Wax defends herself very well, but I'd say that she is clearly a racist. She denies some of the accusations against her, but in general they seem to present an accurate picture of her views.
I wouldn't say that she engages in hate speech, although she is a racist, but I suppose that for some all racist discourse is hate speech.
Since she does represent the view of almost half of the U.S. public (she identifies herself as a Republican), I'd say that there's a place for her in a university. She is obviously very well read and highly intelligent.
At the end of the dialogue Glenn Loury makes it clear that he does not agree with all of what Wax says, but he does not believe she should be fired. He refers those who are interested in the specifics of his disagreements with Wax to previous episodes of the Glenn Show where they argue and discuss their differences.
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