Inside The University Of Pennsylvania's Precedent-Setting Effort To Revoke Tenure From Law Prof Amy Wax

Following up on my previous post, Facing Major Sanctions, Amy Wax Files Grievance Against Penn Law Dean Ted Ruger:  Washington Free Beacon, Inside the University of Pennsylvania's Precedent-Setting Effort To Revoke Tenure From Its Most Controversial Professor:

The school says it's protecting students. Critics say it's destroying academic freedom.

On September 16, 2019, students at the University of Pennsylvania Law School hosted a town hall with law school dean Theodore Ruger to discuss the "issues" surrounding Amy Wax.

A tenured professor at the law school, Wax had sparked outrage earlier that year when she argued, in a speech at the National Conservatism Conference, that the United States should favor immigrants from countries with similar values to its own. Since those nations "remain mostly white for now," Wax said, her approach implied that "our country will be better off with more whites and fewer non-whites"—even though, she stipulated, the policy "doesn't rely on race at all."

In audio of the town hall obtained by the Washington Free Beacon, Ruger told students that Wax's comments were "racist" and had caused "harm." He also suggested they could be grounds to fire her: It "sucks" that Wax "still works here," Ruger said, adding that the "only way to get rid of a tenured professor" is a "process" that is "gonna take months."

The town hall set the stage for a protracted battle over academic freedom. Since January 2022, Penn has been trying to sanction Wax—potentially by revoking her tenure and dismissing her—for statements the law school alleges violate its anti-discrimination policies. The case is testing the argument, aired by one of Wax's colleagues, that a professor's academic views can be so "offensive" that they "undercut" her ability to teach students and provide a "good case for termination."

Wax's views are undeniably controversial. She said in a 2017 interview that black law students "rarely" finish in the top half of their class. She has argued that black poverty is self-inflicted and, in the context of immigration policy, expressed a preference for "fewer Asians," citing their "indifference to liberty" and "overwhelming" support for Democrats. She even invited Jared Taylor, a self-described "white identity" advocate, to speak to her class on conservative thought, saying his views were "well within the subject matter of the course."

But tenure is intended to protect provocative speech. It came about in the 1920s after many professors were fired for endorsing then-controversial ideas like evolution, atheism, and free love. Robust job security meant academics could speak and teach freely about charged subjects, even if doing so was considered blasphemous.

That's why Wax's case has raised alarm about the future of academic freedom and the power of tenure to protect it. Unlike Princeton University's Joshua Katz, whom the school sacked ostensibly over his consensual relationship with a former student, Wax is under the microscope only for what she's said. Her dismissal would set a new precedent, signaling that tenured professors can be booted for airing views that students or administrators deem offensive.

"This is a game-changer, because it's a pure case of speech," Wax told the Free Beacon. "If they succeed in punishing me for that, it will eviscerate academic freedom as we know it."

Faculty across the political spectrum echo that warning. Wax's defenders include the conservative Princeton professor Robert George and the liberal Harvard Law professor Janet Halley, both of whom say Penn is playing with fire. "Statements on issues of law and public policy"—and the act of "inviting a controversial speaker" to class—are "unquestionably protected by academic freedom," Halley wrote in July on behalf of the Academic Freedom Alliance, a nonprofit that defends faculty speech rights. ...

In an effort to overcome the procedural hurdles, Wax's lawyers on January 16 filed their own grievance against Ruger, saying his charges constitute "a direct attack" on academic freedom. They are demanding that he be removed from the proceedings and that the case be reassigned—from the Senate-appointed hearing board to Penn's Committee on Academic Freedom and Responsibility, which investigates violations of academic freedom. The decision of whether to reassign the case now rests with Sarah Kagan, the chairwoman of the Faculty Grievance Commission, who declined to comment.

If Penn does sanction Wax, she has indicated that she will file a lawsuit. Though as a private school Penn is not bound by the First Amendment, its official policies do promise faculty academic freedom—and Wax could sue for breach of contract.

The stakes of that lawsuit would be high. If Wax won, the resulting precedent would make it harder for all universities, not just Penn, to fire tenured dissidents. If she lost, it would give schools legal cover to axe them.

National Review, Penn Law School Versus Academic Freedom and Amy Wax

Prior TaxProf Blog coverage:

• Wax & Alexander: Paying The Price For Breakdown Of The Country's Bourgeois Culture (Aug. 13, 2017)
• Reaction To Law Profs' Op-Ed On The Breakdown Of The 'Bourgeois Culture' (Aug. 25, 2017)
• Penn Law Students Try To Ban Amy Wax From Teaching Civil Procedure Due To Her Breakdown Of The Bourgeois Culture Op-Ed (Sept. 10, 2017)
• Controversy Over Law Profs' Op-Ed On The Breakdown Of The 'Bourgeois Culture' Shifts From Penn To San Diego (Sept. 21, 2017)
• More Law Prof Reactions To The Wax & Alexander Op-Ed On The Breakdown Of The 'Bourgeois Culture' (Sept. 22, 2017)
• Reynolds: It Is Time Academics Preach the Virtues They Practice (Sept. 26, 2017)
• Penn Alumni Speak Out Against Breakdown Of The 'Bourgeois Culture' Op-Ed (Sept. 26, 2017)
• Wax: The Closing Of The Academic Mind (Feb. 19, 2018)
• Penn Dean Denies Amy Wax's Claim That He Asked Her To Take Leave Due To Controversial Op-Ed (Feb. 21, 2018)
• Heather McDonald: The Penn Law School Mob Scores A Victory (Mar. 19, 2018)
• Amy Wax: The University Of Denial — Aggressive Suppression Of The Truth Is A Central Feature Of American Higher Education (Mar. 24, 2018)
• Amy Wax Controversy Drags Penn Law Into Free-Speech Dilemma (July 27, 2019)
• Penn Law Removes Statement On RBG’s Death After Inclusion Of Amy Wax Quote Sparked Outrage (Sept. 29, 2020)
• Penn Law Dean Ruger Responds To Comments Made By Professor Wax (Jan. 6, 2022)
• Debate Intensifies Over Potential Discipline For Penn Law Prof Amy Wax (Jan. 15, 2022)
• Penn Law Dean Starts Process That Could Lead To Sanctions On Professor Amy Wax (Jan. 19, 2022)
• More Commentary On The Amy Wax Controversy At Penn (Part 1) (Jan. 25, 2022)
• More Commentary On The Amy Wax Controversy At Penn (Part 2) (Jan. 31, 2022)
• Penn Law Dean Ted Ruger Requests Faculty Senate Impose ‘Major Sanction’ Against Tenured Professor Amy Wax (July 18, 2022)
• Amy Wax Raises Over $125,000 To Defend Against ‘Major Sanction’ By Penn; Academic Freedom Alliance Calls For 'Complete Exoneration' (July 25, 2022)
• A Response To Penn Dean Ruger’s Letter Calling For A Major Sanction Against Professor Amy Wax (Aug. 4, 2022)
• Are Contributions To Amy Wax's Legal Defense Fund Tax Deductible? (Sept. 5, 2022)
• Amy Wax Submits 59-Page Memo Seeking Postponement Of Penn Disciplinary Proceedings, Citing Cancer Treatment (Sept. 20, 2022)
• post, Facing Major Sanctions, Amy Wax Files Grievance Against Penn Law Dean Ted Ruger (Jan. 27, 2023)