U Penn Law Prof. Amy Wax Seeks Dismissal Of University Disciplinary Proceedings: “Premature, Unwarranted, and Prejudicial”

U Penn Law Prof. Amy Wax Seeks Dismissal Of University Disciplinary Proceedings: “Premature, Unwarranted, and Prejudicial”

Embattled University of Pennsylvania Law School Professor Amy Wax and her lawyer, David Shapiro, have filed a major submission, the most comprehensive and substantive to date, in the University’s proceedings seeking her termination.

Their legal memorandum, submitted at the end of last month, asks for the charges against her to be dismissed and replaced with new ones submitted by a new “Charging Party” to replace Penn Law Dean Ted Ruger because of his bias against her. From the memorandum’s introduction:

The substantive and procedural problems with the proceedings instituted by Dean Ruger are immense and require immediate rectification before any more harm is done to the University, the Law School, Professor Wax, and other University stakeholders. As Chair of the Faculty Senate, you are “the principal executive officer” of the Senate, and you have “such powers as are appropriate to the office.” Faculty Senate Rules, Rule 4 (“Duties of the Chair”). I therefore respectfully submit this memorandum in support of Prof. Wax’s request that you, as Chair:

1. Postpone further proceedings until Prof. Wax’s cancer treatment concludes; 1F2 2. Order the University to produce information regarding the proposed Hearing Board Members pursuant to Section II.E.16.4.D of the Handbook for Faculty and Academic Administrators (the “Handbook”);
3. Dismiss the March 2, 2022 Written Charges;
4. Disqualify Dean Ruger as the Charging Party;
5. Retain, on behalf of the University and Prof. Wax, a neutral third-party to determine pre-hearing issues;
6. Order the University to produce information, pursuant to Section II.E.16.4.D of the Handbook, relevant to Prof. Wax’s affirmative defense that her comments on Black law student performance was truthful and accurate; and
7. Provide additional information requested below on the various charges against Professor Wax.

Wax’s Legal Strategy

I spoke to them recently and was hardly surprised when they described an uphill battle against the University and a process that stacks all the cards in the school’s favor. That’s how it’s been from the start.

We’ve been covering Wax’s conflict with PennLaw from the very beginning, when she triggered the woke campus mob by  unapologetically expressing conservative views in a 2017 op-ed.

Rather than engage her in discussion and debate, students and faculty demanded from an all-too-willing Dean Ruger that she be fired for being a “racist.”

And that, says Shapiro, is what makes Wax’s case “sui generis”: The University is trying to fire a tenured professor for her speech.

It was not long before the dean caved to the students’ demands and took up their cause in the conflict that escalated as Wax continued to voice her unorthodox views over the years. Finally, as we wrote here, this past June he submitted a letter to the Faculty Senate calling for a review of Wax’s conduct for violation of University policy under the Faculty Handbook and a “major sanction” including possible termination.

Meanwhile, in a process Shapiro is aggressively challenging for lack of transparency, the Faculty Senate is putting together a Hearing Board to conduct hearings in the case.

How that board’s hearings will proceed is hard to predict. As Wax and Shapiro explained to me, there is virtually no precedent for stripping a professor of tenure at UPenn:

Although documentation is murky, one professor apparently lost his position after being convicted of murdering his wife.  Another is rumored to involve gross dereliction of academic duties. And there is no written record of past proceedings as you would find for judicial decisions.

With no prior history to turn to for guidance, I asked Shapiro how they will approach the hearings. He explained that the Faculty Handbook requires that Wax be treated “fairly” and that her substantive and procedural rights are guaranteed:

This means that generally accepted maxims of the common law must be respected. For example, the Charges cannot be based on new rules … and the Charging Party  [i.e., Dean Ruger] cannot be biased.

…

The school … should be setting up a process that resembles as much as possible a court of law. That means rules of evidence, the production of documents and information which are exculpatory, and a neutral third-party to resolve pre-Hearing issues.

It is hard to see how Wax will get fair treatment before the Hearing Board, though. Unlike a traditional court of law, they say, the University holds all the cards:

The galling part of the process, of course, is that the University, which is a party to the proceeding, is the entity making all the procedural decisions. That does not a fair and rights-protecting procedure make. Penn cannot be both an interested party and the decisionmaker on both substantive and procedural questions that are crucial to an impartial resolution of the Charges.

To stack the deck even higher, the University also holds all the information—including information that could vindicate her.

Wax Wants The Data On Grading Distribution

Wax’s memorandum asks for that information, including data in control of the Law School that could clear her of their charge that she’s a “racist.” They’ve been trying to fire her for that ever since she commented on black students’ performance relative to their white classmates back in 2017 when she said on the Glenn Loury podcast: “I don’t think I’ve ever seen a black student graduate in the top quarter of the [Penn Law School] class and rarely, rarely in the top half.” She was talking about the negative consequences of affirmative action that result when black students are admitted to schools, especially top-tier schools, where they don’t qualify on the merits.

It was hardly a novel observation. As Wax pointed out recently, “there are a number of datasets that show that in other schools what I said is true and valid. And everybody I’ve spoken to who teaches in an elite law school has experienced the same thing that I’ve experienced, although they won’t speak up about it.”

They’re laying low because they don’t want to be the next Amy Wax. The dean seized on her statements,  labeling them “false” or “inaccurate,” and used them to justify terminating her.

And yet, after all these years, the dean still refuses to produce any data to prove her wrong.

Wax says “that just violates every rule of fairness.”

Dean Ruger wants to have it both ways, they argue in the memorandum: On the one hand, he accuses Wax of speaking falsely or inaccurately. On the other, he has claimed the law school doesn’t keep a record of student performance by race. If so, then how can he accuse her of false representations? Or is it he who is lying?

To settle the question, Shapiro has asked for a forensic examination of the grades of the law students by race.

Wax: Law School and University Making it Up As They Go Along

As a matter of fundamental fairness and due process, Shapiro argues, Wax is entitled to adequate notice of the charges against her. She can’t defend herself against those charges if she doesn’t know what they are.

And yet, they say, what she is being charged with is a “fuzzy moving target.”

The list of offenses is never-ending because the dean keeps adding new ones. They pile on top of the vague, incoherent, and incomplete ones taken out of factual context and already there in the charging document.

What’s more, they include a completely made-up one by the dean, who accuses Wax of “crossing a line” when she invited Jared Taylor to speak to her class on Conservative and Political Legal Thought. What “crossing a line” means is anyone’s guess—the dean doesn’t define it and the term is nowhere to be found in any UPenn code of conduct.

All told:

The charges “have created confusion and uncertainty as to what exactly Prof. Wax is being charged with.”  They are part of “a war of attrition designed to impose a maximally vexatious burden on Prof. Wax with the ultimate purpose of wearing her down and driving her from Penn.”

That’s not happening so fast, though. If you’ve seen any of her many interviews on YouTube, Wax shows no signs whatsoever of wearing down—or backing down.

 Wax Has Cancer, Seeks “A Basic Humanitarian Accommodation”

Watching her hold forth for hours on those podcasts, you would never suspect that Wax is fighting two battles: one against UPenn, the other against life-threatening cancer. Even at half-strength, Amy Wax is a force of nature.

She shouldn’t be punished for that.

Her doctors have made clear that while she’s being treated, she won’t be able to “meet deadlines, participate in proceedings or respond adequately to charges against her.” And yet, Shapiro says that the dean denied her repeated requests for an extension of time during the pre-hearing process.[*] Wax and her lawyer have again asked the University to postpone the proceedings until the end of the year to give her time to recover.

Ramming through the “major sanctions” hearings under these circumstances would be cruel, says Shapiro. And it violates her right to fundamental fairness guaranteed by the Handbook.

Wax Warns Of The Demise of Tenure

But what is the point of fighting for “fundamental fairness” in a proceeding that is per se unfair? As a tenured professor, Shapiro argues, Wax is contractually guaranteed academic freedom, including the freedom to express her unorthodox views. The school now threatens her with the loss of tenure for expressing the very viewpoints that tenure is meant to protect.

Seen this way, the proceedings against Wax reveal a sinister agenda: to destroy the last bastion of academic freedom, tenure. Before long, the loss of tenure could become a routine threat to force conformity on campus.

Wax says there are still some “cuckoos in the nest”—dissident professors like her who believe tenure safeguards their freedom to express their traditional viewpoints. But once the University takes tenure away from Wax in a sham proceeding, there is nothing to stop it from driving out other dissidents the same way.

And so, in this woke twist on the classic conflict between the institution and the individual who won’t back down, the real question isn’t whether the process will be “fair.”  The question is who’s next?

[* This sentence was updated after publication for clarity.]

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