Penn Law Embraces the Heckler's Veto

with Amy Wax

Amy Wax is a controversial figure. Her views about race, nationalism, and identity politics—and the direct manner in which she often states them—have made her a pariah at Penn Law, where she’s taught for decades. Now the university is attempting, in effect, to punish Amy for views that make students feel “unsafe.” I disagree with her on many matters, but when it comes to her right to speak her mind without fear of retribution from her university, I am 100 percent behind her. She’s not threatening anyone, she’s not bullying anyone, she’s simply proffering facts and opinions the mere existence of which make some people uncomfortable. As far as I see it, that’s part of a professor’s job.

But I think the issue extends beyond confronting students with hypothetical scenarios and abstract arguments from “the other side.” Amy doesn’t just present conservative ideas for students to consider. She’s actually a conservative, a fact that anyone taking her classes is surely aware of. She likely doesn’t subscribe to every idea she proffers in class (no one could without risking wild inconsistency), but she surely subscribes to some of them. I imagine that fact, rather than the ideas themselves, imparts a “threatening” edge to Amy’s classes. Learning the other side’s argument in order to rebut it is all well and good, but heaven forbid students actually have contact with someone who believes that argument. Unless the professor is a liberal, of course, in which case, true belief is a feature not a bug.

This double standard is totally incompatible with free inquiry and freedom of expression. Amy Wax isn’t being persecuted by Penn for articulating “unacceptable” ideas, she’s being persecuted for believing them. Her physical presence at Penn is the problem, as has been tacitly made clear by the various steps the administration has already taken to try to keep her off campus. The term “witch hunt” gets overused, but in this case I think it’s apt.

In this clip from this week’s episode, Amy walks me through Penn Law’s case against her. In the full conversation, she discusses the startling sanctions she’s facing and that she has appealed. It’s clear they’re trying to force her to retire by cutting her pay and taking various other demeaning measures. So, I ask, who’s really doing the threatening here?

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This is a clip from the episode that went out to paying subscribers on Monday. To get access to the full episode, as well as an ad-free podcast feed, Q&As, and other exclusive content and benefits, click below.

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GLENN LOURY: We're talking about Amy's ordeal at the University of Pennsylvania, where she's been, as it were, brought up on charges before the faculty senate at the impetus of her dean at the law school at the University of Pennsylvania for conduct unbecoming, so to speak, of a professor. And the sanctions are very significant, Amy. It's as if they are hoping that you'll retire. I don't want to get ahead of us. Do you want to just tell us what's going on with you at Penn and what the resolution is and how you're feeling about it?

AMY WAX: Just very briefly, these charges were brought. They kept adding different charges, I think, because they knew that most of the allegations related to my so-called extramural speech outside the school. So they combed the record and trolled me and found some students who made allegations—which are completely false and distorted—of something I said 13 years ago at a reception. There were all sorts of charges. I won't go into the details. And they had a hearing for three days in May.

It was really a kangaroo court. You wouldn't believe. I could give you some of the anecdotes from the hearing. The Faculty Senate Hearing Board issued a decision, which I sent to you, which is an absolute shambles, of course as we've agreed. And then I appealed it to Liz McGill, now the deposed president, who gave it just a very superficial rubber stamp, even though it violated every known principle of academic free expression and free speech. Didn't matter. And now it's on the final stage of appeal at Penn before a committee, the Committee on Academic Freedom and Responsibility. It's been sitting there for almost five months now.

The appeal happened to be filed a week before October 7th. So October 7th, it was a little bit of a blow-up, obviously, because it brought all these pro-Palestinian protesters to campus and all these allegations of antisemitism. So nothing has happened.

Excuse me for interrupting, Amy, but I just want to read just a little bit from the summary of the committee's letter of finding in your case.

The decision was supposed to be confidential until there was a final decision by Penn, on appeal. That's what they asked. I was complying with that. And then someone, I don't know who, leaked the hearing board decision to the press, to the school newspaper. So that's how it got out.

Okay, so it's out. So we're not violating any privacy by just reading, briefly.

We find that Professor Wax repeatedly violated professional norms by presenting topics in reckless disregard of scholarly standards and presenting misleading and partial information, which is often not scholarly or peer reviewed, in order to draw sweeping conclusions, with the predictable impact of negatively and inequitably harming the learning environment at the University of Pennsylvania.

That's quite a sentence.

And secondly, violating widely held standards of privacy and confidentiality by discussing her perceptions of Penn Carey Law student grades by racial groups. And third, repeatedly and persistently making discriminatory and disrespectful statements to specific targeted racial, national, ethnic, sexual orientation, and gender groups with which our students and colleagues identify. Her behaviors created a hostile campus environment and a hostile learning atmosphere.

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Thank you for that. Just to get on the table what it is that they have found that you are guilty of having done. It seems to me that one driving force here is, “Our students feel unsafe in Wax's presence. We must protect them.” Hostile learning environment, hostile environment for the campus. Another thing here is she's talking out of school. So this business of privacy. If you have made the statement in our conversations here in the past, that, on your observation, black students didn't do as well academically in the law school classes as they might have done, they were clustering at the bottom.

You said something in words to that effect. They're saying, “You violated the student's privacy by making racial generalizations based on your experience,” irregardless of whether or not what you said was factually accurate, because it creates an environment in which the students fear that inferences will be made about them as individuals from the fact that they belong to a group that you characterized, on your experience, as not doing so well. So what do you say about that?

First of all, that privacy argument was made long ago. It is contestable based on the actual standards in the law. So let's get that on the table. I'm very clear, because I did not name individual students. I made generalizations about groups. So there's a very strong argument that that is no privacy violation at all. That's a technical legal argument. I've already been punished for that by having my course taken away from me. And it's a very small tail that's wagging a very large dog, Glenn, because there are multiple other allegations, and for them to just say, “At the very least, she violated privacy, even if that other stuff is bullshit, questionable nonsense,” that really does not allow this sanction to hold up, I'm sorry.

That is not what they said here. This is a very small part of what they are indicting me for. Let's be clear. They're indicting me for making all sorts of perfectly respectable statements of fact and opinion, which out there in the real world and even in other universities would pass muster. So this is, once again, another instance of sophistry, I would say, on the hostile environment making us uncomfortable, making us feel unsafe.

Glenn, that whole line of argument, that whole set of allegations about student discomfort, student upset, I'm sorry. You can have free expression and a free exchange of rigorous ideas or you can have students objecting based on unsafe environments and penalizing professors for unsafe environments, but you can't have both. The two are completely incompatible. You have to choose. And this whole shtick of every time a student says they're upset and they complain and they're offended, that shuts down what the professor says and results in a penalty to the professor.

You can't have any kind of rigorous truth-seeking function or activity with that threat constantly dangling over your head. We have to get rid of this idea that students can, by invoking their feeling of lack of safety, shut down the discourse. I'm sorry. And mostly it's fake anyway. And it's very selective. I don't want to bring up what happened October 7th, but it's a very big part of our landscape now. And when Jewish students are offended or upset, nobody cares. And I can tell you that when I open the New York Times every morning and feel offended and upset, nobody cares, right?

I would point out that you can't have it both ways, either. You can't have that “identity politics and DEI is BS” when the students of color invoke it and have it that identity politics is okay and the topic du jour when Jewish students invoke it.

I actually am very suspicious of these claims of antisemitic upset on campus. I am a free speech absolutist. Why? Because frankly, as they used to say, is it good for the Jews? Is it good for conservatives? Conservatives should be very wary of these claims of offense and lack of safety, because it will be turned against them. It will predictably be turned against them as it has been turned against me.

So if conservatives want to buy a space in the university or an intellectual discourse, they have to turn away those arguments. And the Supreme Court is very wise on these topics. They always get it right. They say that's a heckler's veto, and we cannot allow heckler's vetoes to determine what it is acceptable to say. They have been a hundred percent clear on this and we forget those lessons at our peril.

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