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Tuesday, July 10, 2018

Wax Does Not Wane

A colleague of mine here at Tech Law, Dwight McDonald, only recently found out about the Amy Wax controversy at U. Penn. when he read this editorial by Walter Williams, a professor at George Mason Law School. It was published in our local paper on July 4th.  Dwight was inspired to write a response in a letter to our paper.

In his editorial, Mr. Williams supports Ms. Wax’s claims and says: “The fact that black students have low class rankings at such high-powered law schools as Penn doesn't mean that they are stupid or uneducable. It means that they've been admitted to schools where they are in over their heads."

In Dwight's pithy response, he points out some weaknesses in Williams' claims, and also a curious contradiction among some of those who take Mr. William’s position.  You can read it below the fold.

Here is what Dwight wrote:

"Mr. Williams and Prof. Amy Wax from the Penn School of Law surmise that 'racial preferences hinder the ability of blacks to succeed academically by admitting them into schools at which they are in over their heads academically.'

"Mr. Williams then uses the information provided by Ms. Wax to attack the public school systems in several cities without any information that suggests any black students attending Penn came from those school systems. Nor did Mr. Williams address the fact that there are 75 percent of the Caucasians attending Penn and other Ivy League law schools who are not in the to 25 percent of the class either, and yet they are not being told to go to less prestigious schools.

"I did a five minute Google search, and found an interview Ms. Wax did where she made her claim that there has never been any black students graduate in the top quarter of their class. When pressed for the basis of her statement, she admitted it was not scientific. It was based on her teaching a section of 90-95 students in her Civil Procedure class each year at Penn. Each class has 260-270 students, of which she teaches one-third of them, and used that as her basis for her comments.


"I find it ironic that in an editorial by Lubbock Avalanche-Journal (Editorial: The right direction for the Supremes, July 5,, the editorial opinion extols the virtues of Clarence Thomas. *** [B]ased on Mr. Williams and Ms. Wax opinion, Justice Thomas should never have been admitted to Yale School of Law, and yet he has managed to rise to the highest level in his profession despite not finishing in the top 25 percent of his class at Yale."

Prior TaxProf Blog coverage:

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Wax is wrong, but the way she has been treated is unacceptable

Posted by: mike livingston | Jul 10, 2018 4:42:37 AM


What? She became part of the lucrative right-wing cable news and op-eds whine-o-sphere and no longer has to teach Civ Pro, which as most law profs would admit after a few drinks, is a gift, not a punishment.

Posted by: Unemployed Northeastern | Jul 10, 2018 8:32:57 AM

I find Mike Livingston's response surprising. She's been treated remarkably well. No faculty member has a right to denigrate an identifiable segment of the student population, which is what she did. Removing her from a required 1L course is hardly a punishment, as already noted, though it does mean no one will be forced to take her classes. The school would have been well within rights to impose a more serious penalty. Academic freedom is not a license for faculty to damage the reputation and professional prospects of a whole group of students at the school.

Posted by: Brian L. | Jul 10, 2018 1:05:57 PM

What about all the black students who are placed into schools above their qualifications, and then fail the bar at rates far beyond white and Asian law students? (see Prof. Sanders' research) They aren't all Clarence Thomas...

Mismatch is real, AA discriminates against white and Asian students, and it harms a high percentage of its intended beneficiaries.

Posted by: Todd | Jul 10, 2018 1:17:00 PM

I'm not sure whether Todd (and Professor Wax) is right or wrong. I do think that the notion that the claim may not be asserted because it "denigrates an identifiable segment of the student population" to be absurd.

Posted by: Mike Petrik | Jul 11, 2018 3:39:54 AM

I think the denigration thing is nonsense. She was punished for having politically incorrect views, nothing more. I doubt she is right--I assume Penn has good students of all colors--but the denigration thing is baloney.

Posted by: mike livingston | Jul 11, 2018 5:03:33 AM

Why are we acting if this is an open question. We know for a fact racial preferences allow students several standard deviations from the lsat median to attend a certain law school. So unless law school performance is completely random and totally uncorrelated with lsat/Iq, the preferences clearly play a part in what everyone knows in the outsized underperformance. I have sat in faculty meetings where this was revealed at a different law school. Everyone knows it.

Although to be fair, the author seems to deny professor waxs contentions with nonsequitars and items that seem to suggest he doesn't understand how distributions work (address the fact there are 75 percent of Caucasians who are not in the top 25 percent). That is, bluntly, mediocre sixth grader level of math understanding.

The distributions, on average underperformance arent matters of opinion. You can argue they are justified in allowing opportunities based on educational signalling. For example, so long as they pass the bar, the prestige conferred by the degree will outweigh lower than average grades, etc. I even suspect that is the case in the top 20, less so the case outside it. That's all subjective. But Professor Wax's starting point is a fact and should be openly discussed within everyone's moral frameworks. I suspect instead we will just post emotional demogaguery like above followed by attempts to rid ourselves of every objective iq test that might be used as a comparison metric.

Posted by: Let them eat cake | Jul 11, 2018 6:46:47 AM

Ha ha - "Let them eat cake" chides others for *sixth grade understanding of math* while conflating the LSAT with an IQ test. That's your daily supply of irony, right there.

Also ProPublica has a major piece up today on how elite college admissions take in vastly more underqualified white applicants (via legacy, recruited athletes, development cases, quid quo pros, children of faculty and administrators, the Z List, etc. et. al.) than they have under-represented minorities.

Posted by: Unemployed Northeastern | Jul 11, 2018 8:19:34 AM

I never suggested it was an r=1 situation, but obviously they are correlated similar to the sat and act. There is significant literature on each. Im guessing based on your school you didn't so well on
the lsat, which is fine by the way. Many successful people don't. I'm guessing the unemployed part is a inside joke about the schools employment situation. Which actually seems pretty decent now. Anyway httpss://

Again it has nothing to do with my math, and obiviously nothing to do with some left wing outlets whining about something completely irrelevant to law school admissions.

Posted by: Let them eat cake | Jul 11, 2018 8:54:37 AM

1. Yes, your conflation of the LSAT with an IQ test is objectively wrong. The American eugenicist who created the SAT used to claim that it was an IQ test, too, but Stanley Kaplan gave the lie to it >70 years ago now.

2. If you are so petty and narrow-minded to bother with d*ck, I mean score, measuring, I was in the top 10% of LSAT test-takers.

3. The U3 unemployment rate is below 4% and the ten-months-after-graduation unemployment rate for law school grads is still in the 8-9% range. The U6 equivalent number for law school grads is over 33%.

4. The underlying issue here, of course, is that a law prof at Penn made completely unsubstantiated and prejudicial statements about Penn law students, including her own, and like all in the modern right, has retreated into the "Why am I being oppressed?" whinge when called out on it.

Posted by: Unemployed Northeastern | Jul 11, 2018 12:14:57 PM

Shame on the administrators of this blog for allowing “Let them eat cake” to make personal attacks against other commenters that contribute nothing to the topic under discussion. I hope “Let them eat cake” is not a law professor. Someone that childish and immature should not be teaching future lawyers.

Posted by: anonlawprof | Jul 11, 2018 8:43:44 PM

Wax may not have had hard statistics to back up her empirical observations (though they were anything but unsubstantiated), but McDonald's so-called rebuttal didn't either. Instead, his only concrete example was of Williams himself, a cohort of one, and far less representative of the class as a whole than the 1L classes taught by Wax. As William's pointed out, those administrators at Penn who had access to the actual statistics chose not to reveal them, which perhaps is revealing in it's own right.

Posted by: ruralcounsel | Jul 12, 2018 6:09:03 AM

"Also ProPublica has a major piece up today on how elite college admissions take in vastly more underqualified white applicants (via legacy, recruited athletes, development cases, quid quo pros, children of faculty and administrators, the Z List, etc. et. al.) than they have under-represented minorities."

Which, combined with McDonald's observation about color-blind grading practices, only makes Wax's and Williams points more germane.

Further, regarding McDonald's point about "it would violate privacy laws for the dean of Penn to respond with specific information regarding the class rank of black students" it would seem that aggregating statistics without naming individuals would be more than sufficient to ameliorate any privacy concerns. After all, Wax didn't name names, she just gave her general observations.

Posted by: ruralcounsel | Jul 12, 2018 6:14:49 AM

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