The Amy Wax Affair
A tenured scholar has paid a high price for bluntly expressing uncomfortable truths.
Last week, Amy Wax, the Robert Mundheim Professor of Law at the University of Pennsylvania (“Penn”) and three-time recipient of awards for excellence in teaching, was stripped her of her chaired professorship, suspended for a year at half pay, and denied summer pay in perpetuity. Why? As far as I can tell, for telling her students the truth in the classroom and exercising her constitutional right to express her private opinions outside the classroom.
Penn’s administration doesn’t see it that way. In the words of the official letter sent to Wax, these punishments were justified by her “flagrant unprofessional conduct”:
That conduct included a history of making sweeping and derogatory generalisations about groups by race, ethnicity, gender, sexual orientation, and immigration status; breaching the requirement that student grades be kept private by publicly speaking about the grades of law students by race and continuing to do so even after cautioned by the dean that it was a violation of university policy; and, on numerous occasions, in and out of the classroom and in public, making discriminatory and disparaging statements targeting specific racial, ethnic, and other groups with which many students identify.
The specifics of the allegations against Wax can be found in a twelve-page letter written by the Dean of the law school, Theodore Ruger, in June 2022. I am suspicious of some of them, but most of the things she is alleged to have said sound like the Amy Wax I know. In each of our occasional encounters over the years, I have always had the same reactions. She is brilliant, entertaining, disconcertingly frank, and sometimes abrasive. Her style is not my style, but I have never known Wax to use invective or slurs when she is expressing her opinion. She is just really, really, blunt.
The nontrivial allegations in Dean Ruger’s letter boil down to three:
- Minority law students reported that Wax was insensitive, intimidating, or (in their opinion) incapable of being fair to them if they took her course.
- She invited a white nationalist, Jared Taylor, to give a presentation and attend a lunch.
- She made unacceptable assertions about where black law students stand academically.
The first of these allegations speaks to the infantilisation of American higher education. The complainants quoted in Dean Ruger’s letter were not thirteen-year-olds struggling with puberty, but college-educated people in their early-to-mid-twenties who aspired to join the high-stress world of fiercely competitive law firms. Such adults are not expected to be fragile flowers. And here’s what the complainants conspicuously failed to say: that Amy Wax actually treated any black student unfairly in class discussions, grading of papers, or grading of examinations. It is unlikely that the complainants knew of prejudicial behaviour but failed to mention it.
As to Amy Wax’s invitation to a white nationalist, Jared Taylor, to give a lecture and attend a lunch with her students, what’s the problem? The university is stockpiled with progressive professors who regularly preach far-left ideology. Jared Taylor is a mild-mannered man who deals in facts and nuanced positions that he expresses in well-crafted English sentences, as you can see for yourself in this hour-long interview. It would be instructive to know how many Penn professors gave lectures on the same day that Jared Taylor spoke at the law school in which they attacked white privilege with far less civility than Taylor expounded white rights. Amy Wax is probably the only Penn professor to give her students exposure to the other end of the ideological spectrum. That kind of exposure may rightly be called education.
What of the allegation that Amy Wax improperly discussed grade distributions by race? Exposing the grades of identifiable individuals would have been a serious breach of confidentiality, but she didn’t do that. Rather, she is accused of saying things like, “I don’t think I’ve ever seen a black student graduate in the top quarter of the class and rarely, rarely in the top half.” That doesn’t violate confidentiality that has any bearing on individuals.
Dean Ruger’s letter implies—but does not explicitly state—that Amy Wax was factually incorrect in her description of the academic performance of black students. Had he been explicit, he might have opened the door to a lawsuit that would have compelled Penn to disclose its test-score data, just as Harvard was forced to do when it was sued for discriminating against Asians. Penn can’t afford to attract such a lawsuit. Even though I cannot tell you specifically what the Penn scores were, I can describe why it is virtually certain that Wax was correct.
The mean score on the Law School Aptitude Test (LSAT) sat by students hoping to be admitted to Penn Law School is reported to be 172. We know the number of LSAT test-takers, mean scores, and standard deviations by race for the seven school years from 2011–12 to 2017–18 (all of which were years when Wax was observing Penn students), and we know that LSAT scores by race are normally distributed. Combining this information allows us to make accurate estimates of the number of black test-takers who had LSAT scores at or above the Penn mean of 172. The annual estimates ranged from two to four black test-takers nationwide. The corresponding estimated annual numbers of white test-takers with scores of 172 or higher ranged from 720 to 1,096.
Given the substantial correlation between LSAT scores and first-year grade point averages (usually found to be around +.7), Wax’s observation that almost all black Penn law students were in the bottom half of the class seems statistically close to certain. Published data cannot tell us what the mean LSAT of Penn students in the top quartile of the class was, but we may safely assume it was well above 172. If it was 177 or higher, the estimated number of black test-takers with a score that high was zero for all seven school years. Wax’s observation that there weren’t any blacks in the top quartile of her law school classes is also statistically close to certain. If she’s wrong, the law school could simply present proof that she’s wrong without compromising the privacy of any individual law student. Penn has not done so.
The penalties Penn imposed on Wax will add another layer of apprehension to faculty members, tenured as well as untenured, who hold views that progressives deem blasphemous. But most of them are already cowed. I think the more important point that emerges from the Amy Wax affair is that she told the truth to black Penn law students who asked her about the realities of affirmation action. I do not know of any other professor in any discipline in any elite university who does that. My takeaway from what’s happened at Penn is that it’s time we started telling the truth to all incoming minority students, explicitly and without apology.
Steven Grant
Let me frame it in terms of a gathering of incoming minority students, led by a senior professor with good people skills. My proposal applies to Latinos as well as blacks, and to other professional schools and to undergraduate schools as well as law schools, but I’ll give the imaginary opening statement for incoming black law students at Penn:
Welcome to Penn law school.
I hope you remember the next three years as some of the most rewarding of your life. I must begin by emphasising that, in the judgment of the admissions committee, all of you are capable of leaving here with your law degree and the training necessary to become a capable attorney. But I also want to acquaint you with some facts that are important for you to know as you start taking classes.
The law is a highly intellectual profession. It also requires non-intellectual skills, but the ability to assess and extrapolate from complex legal texts, precedents, and competing logical arguments is central. One of the best predictors of an incoming student’s ability to do these tasks is the LSAT that all of you took.
It is a statement of fact that the mean LSAT score of your group is lower than the score of any admitted white or Asian applicant. To put it technically, the difference between the mean score of your group and the mean of your white and Asian classmates is more than one standard deviation.
This difference is going to be reflected in the classroom. Sometimes you will have more difficulty understanding a technical issue than your white and Asian classmates. Not always, but sometimes. This does not mean that you can’t do the work. It’s simply going to be difficult and require many more hours of study than some of your classmates need.
Why am I telling you this? Because you deserve to be treated as adults, and this is the reality you face. When you encounter academic difficulties—and everybody except a few geniuses encounter such difficulties—you shouldn’t blame yourself or your instructors. That you are black gave you an edge that white and Asian applicants did not enjoy. The prize was that you were admitted while white and Asian applicants with higher test scores were rejected. The price is that most of you will face more challenges than your white and Asian classmates and will have to work harder to overcome them. I hope that all of you will emerge from your years here confident that the prize was worth the price.
The likelihood that any department in any school would countenance such an orientation-week statement is vanishingly small. But I wish I could at least get university administrators to ask themselves whether they could give such a statement in good conscience. Is it really true, as they are so fond of saying, that “everyone we admit can do the work”? I suppose the answer varies by discipline and by university. But the question needs to be asked, and universities need to do whatever is necessary to make sure that the answer is an unequivocal “yes.”
