Yes, We Should Still Fire Amy Wax
The United States is better off with fewer Asians and less Asian immigration, because Asians conform, are obsequious, are unenlightened, cannot stand up to authority, are indifferent to liberty, and are more susceptible to mindless social engineering. In fact, America is better off with more whites and fewer non-whites, because white European cultures are superior. A great example is that Black students rarely graduate in the top half of their class at the University of Pennsylvania Law School. In fact, Black people generally have lower IQs, are responsible for their high rates of crime, and low rates of success.
These are not my words. If they were, I would be shunned at Penn Law, and in the future unable to find a job. If you said that at your workplace, you’d be escorted off the premises before you could yell the words “free speech.” If you made such statements as a powerful NFL coach, you would be fired.
I recently penned an op-ed explaining why Wax should be fired, centering on two arguments: first, that this is a question of Wax’s ability to be a professor, and that her violations of workplace standards justify her firing. Second, that even if this were a free speech issue, we already have boundaries to free speech, and that speech that causes harm — such as Wax’s — is not protected.
I’m writing this to respond to Professor Keith Whittington’s points he made on the Volokh Conspiracy that note that her speech should be protected, and to my classmate Erich Makarov’s letter he penned in favor of Wax. I have two points: first, that both Whittington and Makarov fail to address Wax’s inability to fulfill her role as a professor. And second, that both miss the point regarding the genuine harm as opposed to offense that Wax’s speech is causing. In the process, I will highlight why both arguments are misguided, deceptive, and in some ways, ironic.
This is a Question of Wax’s Inability to Fulfill her Duties, not an Issue of Hate Speech
First, I would like to rebut Whittington’s points that this is an issue of hate speech. That’s a straw man argument, simply because that’s not the claim here. This is harmful speech indicating her inability to fulfill her duties as a professor. Her words, both on-campus and off-campus, lend doubt to her ability to objectively grade and teach students.
Among other things, she discriminated against non-white students by refusing to write letters of recommendation for them and made implicitly and explicitly racist remarks towards non-white students. Whittington concedes that Wax’s behavior with respect to students is an appropriate focus for the investigation, but that her “extramural speech” should be off-limits. But her off-campus words, including her most recent statements about Black people’s IQ being lower than others’, are also clearly discriminatory, though not towards “second generation Eurasian immigrants,” which may explain Mr. Makarov’s lack of outrage. Her “extramural speech” lends weight to accusations of in-classroom discrimination. In her case, it is impossible to separate her off-campus words from those in the classroom.
Both her in-classroom and extramural statements indicate that she does not, and cannot, abide by the University’s Behavioral Standards requiring being fair and principled and being nondiscriminatory. That Wax, in her extramural speech, lied about Black students’ success at Penn Law, violated Law School policy regarding grading to make such statements about Black students’ performance, and lied about Law Review’s “diversity mandate,” indicates that she cannot be fair. That she was stripped of her duty to teach a mandatory first-year course demonstrates just as much. But she hasn’t stopped to change her racist behavior, indicating that those consequences did not go far enough.
Both these issues are not “uncomfortable observations,” as Mr. Makarov whitewashes. They are dispositive of her inability to teach and fulfill her duties. And since the University of Pennsylvania is a private university, it is not constrained by the First Amendment when considering firing Wax, as Whittington misleadingly proposes. Instead, if anything, both he and Mr. Makarov should support this private entity’s ability to enforce its workplace standards by firing her.
Further, a brief investigation into her academic work also indicates that her scholarship is rife with mischaracterizations, citations that outright lie about what sources say, and unsupported statements. This is dispositive of scholastic dishonesty, which is punishable misconduct under the University’s policies. Her work serves not as furthering academic freedom, but as a platform to legitimize notions of white supremacy and far-right policy arguments (much like, in the past, eugenics was legitimized), without the underlying truth that is necessary to support scholarship. This is abjectly distinct from Whittington’s example of Holocaust-denying professors who only deny the Holocaust in their free time, rather than in their classroom. Wax portrays herself as an expert on immigration within the classroom, while propagating lies.
Given all of this, it is clear that Wax cannot be objective and fair towards her students or her work. Her small seminars, which she is permitted to teach, are implicitly off-limits to those worried that they will be treated as though they are obsequious, inferior, or incapable of succeeding in class because of their race. That students cannot take a class for fear that the color of their skin will determine their grade may even indicate that it is the students whose freedoms are being curtailed. This is the tangible harm that’s at stake, rather than the supposed danger of being unable to voice your ideas on campus.
As Mr. Makarov advocates, students should be able to engage with legitimate conservative ideas in the classroom, but they should not have to tolerate a racist professor to do so. Perhaps more students would take Wax’s Conservative Political and Legal Thought course and buy into Mr. Makarov’s ideology that Democrats are the reason for the downfall of this country, if it would not require being demeaned by a professor who uses a student’s race to determine their aptitude.
In addition to her inability to adhere to workplace standards, she has also disparaged her co-workers, calling other professors poor role-models, and generally contributing to a toxic work environment. In sum, this is not a free speech issue. This is an employment and workplace issue. Mr. Makarov wonders whether revoking her tenure will “truly help anyone.” For those harmed by the spread of her racist rhetoric, and for those who see the lack of diversity in the legal profession and wonder whether they belong, the answer is an unequivocal ‘yes.’
In sum, her in-classroom speech indicates that she is causing harm; her extramural speech substantiates that claim. Where extramural speech substantiates such in-classroom harm, both forms of speech should be considered evidence of that person’s inability to teach. Of course, such in-classroom harm probably won’t arise from singular acts, but from repeated statements, such as with Wax.
This Isn’t Uncomfortable Speech; It’s Harmful Speech
Second, both Whittington and Makarov talk about Wax’s words causing mere discomfort to students. Mr. Makarov says that what Wax says “make[s] us uncomfortable.” This is deceptive. There is a difference between speech that is discomforting and that which is harmful. As I’ve noted, the Supreme Court already finds limits to free speech when they cause tangible harm: you can’t shout “fire” in a crowded theater; you can’t defame non-public officials, and you can’t burn draft cards. Of course, finding a clear rule as to what speech is harmful depends on the circumstances. But Wax’s case is a patently easy example of harmful speech, and not a hill worth dying on to defend.
Contrast harmful speech with discomforting speech. Discomforting speech may be when a Stanford Law student satirizes the Federalist Society (of which Mr. Makarov is president at Penn Law) for not condemning the insurrection (ironically, leading to the speaker’s graduation being jeopardized). A harmful statement is one that has tangible effects, such as discouraging students from attending class because their professor was disrespectful or racist towards them, which is what happened when Wax taught a mandatory course. Her harm is visible in other ways as well, such as bringing prominent white supremacists like Jared Taylor to Penn Law, to indoctrinate students and “appeal to base tribal instincts,” as Mr. Makarov accuses Democratic politicians of doing.
This harm/offense distinction is of value, and undermines the claim that her firing will affect ideas and professors of all ideologies. I find it troubling that, for the most part, it is racists and white supremacists who hide behind the shield of “free speech” to propagate their racist views. It is hard to conceive of those advocating for the expansion of rights hiding behind the pretext of “free speech” (here, via “academic freedom”) to defend their ideas. Perhaps this is because there is a valuable distinction in speech that expands rights or advocates for others, and speech that denigrates others to the point where the speech is no longer valuable. International Human Rights Law, for example, finds that speech that causes such harm has no value,[4] and laws that prevent it are permissible.[5]
I understand that academics from varying ideologies (including Whittington) are concerned about the impact on academic freedom, and such worries are valid. But I think Wax’s statements are distinguishable from the overall goals of academic freedom. Academic freedom is the freedom to search for the truth;[6] not the freedom to propagate white supremacist views free from consequences. As I noted, Wax’s statements are the opposite of searching for the truth. They are either flat out lies (such as claiming her Black students are not in the top half of the class at Penn Law), or deceptive and discredited. And her propagating white supremacy has real harmful consequences, such as the harm she has caused to students in her class, and such as adding a compounding cause to the hate crimes against Asians after President Trump called COVID-19 the “Chinese virus.” These are real consequences, unlike feeling troubled being a Republican in Philadelphia.
Whittington also cites cited concern that firing Wax will lead to a snowball effect. He, and many progressives, worry that the next head on the chopping block will be a professor at a more conservative university accused of, for example, teaching critical race theory (CRT). Since citing CRT is a frequent refrain, I will try to dispel these unfounded worries. First, defining the “harms” arising from CRT is as elusive a task as obtaining President Trump’s tax returns, and pundits and politicians have made it their latest boogeyman. Proponents of CRT are not advocating that one race is superior to another. And second, CRT is the search for some truth about whether America’s institutions are systemically racist. That is exactly what academic freedom is intended to protect.
Mr. Makarov and others propose that a better way to approach this is to “talk[] it through” in a “respectful” fashion. I wish it were this easy. But it is difficult to have a debate with someone who has — given her history of racist statements — shown no indication that she is open to changing her mind. That she has lied about Black students and lies in her academia indicates that she’s not open to genuine debate, but instead wants to promote her agenda. And that she finds immigrants and Asians (like myself) inferior, combined with her elevated platform as a named professor at a prestigious Ivy League law school, means that those of us who do debate her will do so without a platform and without her respect. I find Mr. Makarov’s idea that this is nothing but some “uncomfortable” statements that challenge the “sanitize[d] public forum [that] exclude[s] non-progressive views” idealistic, hackneyed, and in itself a sanitization of Wax’s statements.
I’m glad that we’re having this debate. Professor Whittington and Mr. Makarov make interesting points. But I think their arguments miss the mark and are in some ways deceptive. Wax should be fired, and she should lose her library privileges, because her speech — on campus and off — is not free from the consequences of the harm it causes. I hope that the University’s investigation finds just as much. It’s about time.
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[1] Brandenburg v. Ohio, 395 U.S. 444, 456 (1969) (Douglas, J., concurring).
[2] Cantwell v. Connecticut, 310 U.S. 296, 309 (1940).
[3] United States v. O’Brien, 391 U.S. 367 (1968).
[4] International Covenant on Civil and Political Rights art. 25(b), Dec. 16, 1966, 999 U.N.T.C. 171.
[5] See, e.g., Pavel Ivanov v Russia, App no 35222/04, Judgment (ECtHR, Feb. 20, 2007), paras. 1, 3.
[6] David Horowitz, Indoctrination U: The Left’s War Against Academic Freedom (2007).
