THE GREATER THE TRUTH THE GREATER THE INJURY AND THE GREATER THE ANGER: An emailed press release from John Banzhaf, law professor at GWU, on the Amy Wax affair:
It has been reported that the University of Pennsylvania Carey Law School has received a recommendation from its hearing board that it impose, on a law professor protected by tenure, severe sanctions – including a one-year suspension at half pay, and the removal of her named chair and summer pay – for statements she made which may have been true and apparently were never refuted.
In other words, although Professor Amy Wax’s right to express even the most controversial opinions is supposedly protected by both the guarantees of tenure and by legally binding commitments by her university, she may nevertheless be deprived of any income for an entire year, and lose other valuable benefits, for making factual-type statements which may even be true.
It appears that the university has not attempted to refute them, much less show that they are so clearly false and outrageous that merely uttering them, especially in off-campus settings, would warrant severe punishment, says public interest law professor John Banzhaf, who has won many such free speech battles.
The action is even more questionable here because Penn has published a legally binding promise that all professors, and especially those who have earned the guarantees of tenure, will enjoy freedom of speech and academic freedom, and has publicly reiterated several times that Wax’s controversial assertions are fully protected by those published promises.
Thus her statements, because they are more in the nature of facts than pure speculation or opinion, and rest upon easily ascertainable and indisputable data, are ones which should be subject to objective discussion and refutation in the spirit of academic freedom and open debate.
Penn should not simply label them “racist,” and then try to use them as a basis for severe punishment, he suggests.
In other words, simply labeling something as “racist,” even if it is racist according to most law students, doesn’t necessarily mean that it is incorrect and/or should never be uttered, especially beyond the confines of the campus, argues Banzhaf.
For example, in one statement which has been cited, Wax said in a podcast about affirmative action that “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 of my required first-year course.”
If even plausible, this observation would seem to be relevant to legitimate academic concerns and discussions about possible problems with utilizing affirmative action in admission to law schools, with how African American students are treated and/or graded at the law school, etc.
Indeed, following that statement, Wax asked “What are we supposed to do about that?”
This second statement suggests that she was legitimately concerned about the apparently poor showing among Black students (at least from her own perspective) and what can be done to improve it; and not seeking to denigrate, insult, frighten, or belittle them, suggests Banzhaf.
Penn could easily refute this statement if it’s factually incorrect, and especially if it is so clearly wrong (rather than simply being a small misstatement or slight exaggeration) as to warrant punishment, since it has in its own computer the grades Wax and other law professors assigned during her time there.
Moreover, it knows – or should be able to easily ascertain – which of those students are African American, and therefore the percentage of Black law students which received grades in the top quarter of classes and the top half of Wax’s classes.
Yet Penn apparently has refused – although it clearly has the ability – to refute Wax’s fact-type statement, and thereby at least begin to possibly justify imposing some punishment.
Indeed, this strange silence suggests that Wax might even have been correct in pointing out a possible problem at the law school with its African American students, says Prof Banzhaf.
I think it’s pretty obvious that what she said was true, and that that’s why they’re angry. Note, meanwhile, that Penn tolerates all sorts of racist and antisemitic speech on its campus even as it seeks unprecedented revenge against Amy Wax.
Penn believes that its views can’t withstand contradiction or discussion. What does that tell us?