Dissident UPenn Law Professor Amy Wax and her lawyer, David Shapiro, have taken the offensive in the University’s battle to terminate her by filing a Grievance against law school Dean Ted Ruger with the Faculty Grievance Commission.
The Grievance, submitted simultaneously with a major reply memorandum, is a potentially game-changing development in the proceedings instituted by Dean Ruger over six months ago.
As Shapiro put it when we spoke this week, “Amy Wax has gone from being defendant to charging party in her own case.”
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:
As we reported in September, rather than engage her in discussion and debate, students and faculty demanded that an all-too-willing Dean Ruger fire her 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, 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 loss of tenure and termination.
There is virtually no precedent for stripping a professor of tenure at UPenn. And what little exists arises out of egregious conduct, as we wrote here: One professor apparently lost his position after being convicted of murdering his wife. Another is rumored to have involved gross dereliction of academic duties.
But the sanctions on Prof. Wax threatened by the dean are not based on her conduct; they’re based on her opinions, as Shapiro argues in the Grievance:
The charges are all based on statements Prof. Wax is alleged to have made inside and outside the classroom related to her academic role; materials she assigned in her class; her invitation to a guest speaker for that class; statements in her various writings; and opinions she has expressed in her academic capacity and in media appearances.…Here’s what Dean Ruger’s charges are not about: they do not allege that Prof. Wax had an inappropriate relationship with a student. They do not allege financial improprieties. They do not allege a physical attack. They do not allege that she ever uttered epithets, used racial slurs, or engaged in personal, ad hominem attacks. They do not accuse her of plagiarism, dereliction of any academic duties, or any actions that would constitute a major sanction under the Handbook.…In sum, the allegations in the charges do not concern behavior or actions but only expression. The only thing that the charges allege is that her speech and expressions of unpopular or controversial opinions require a major sanction, including possible loss of tenure and termination.
By recasting Wax’s free expression as “conduct,” the dean hopes to haul the once-esteemed professor before the Hearing Board and threaten her—and anyone else who dares challenge the woke campus ideology—with termination.
But no matter how Dean Ruger repackages them, Shapiro says the charges are attacks on Wax’s academic freedoms and freedom of expression—freedoms guaranteed by the University’s own standards and policies, especially for tenured professors like Wax.
And under the University’s own rules, charges that concern academic freedoms are outside the jurisdiction of the Faculty Senate. The proper venue for the Dean’s charges is the Commission and the Senate Committee on Academic Freedom & Responsibility (“SCAFR”), they say. Once those charges are before the Commission, it will be a whole new ball game.
Charges related to academic freedom, speech, and expression must be adjudicated by the Commission and SCAFR pursuant to their rules, Shapiro says. That means the dean will have to actually prove his case against Wax—or drop it.
As we wrote here last September, the dean accused Wax of “racism” after she claimed that she had rarely seen a black student graduate in the top half of the class. He labeled these statements “false” or “inaccurate,” and used them to justify terminating her.
To defend herself against Dean Ruger’s charges that she made false statements, Wax and Shapiro have argued that Prof. Wax must be permitted access to documentary information on, among other things, the grades and class standing of Black Law School students.
And yet, after all this time, and despite repeated requests for data on grading distribution at UPenn Law, the dean still refuses to produce any concrete evidence to prove her wrong.
The Grievance Commission, however, would require the dean to come forward with that evidence, Wax and Shapiro explained. According to the Commission’s own procedures, as explained in the University Handbook:
If documentary evidence is needed by the grievant . . . in the preparation of . . . her case . . . application will be made to the Presiding Officer. . . . The Presiding Officer will then obtain all relevant evidence. All such evidence will be available to the panel, the respondent, the colleagues, and … to the grievant.
Most importantly, Shapiro argues, as per the SCAFR procedures, the Commission will insist on complete transparency:
[N]o evidence will be considered without disclosure to both sides. If a witness does not wish such disclosure, he or she will not be permitted to testify and the proffered testimony will not be considered[.]
So the stonewalling will have to stop once the parties are before the Commission, as the Grievance demands. If Wax succeeds in moving the proceedings there, and Dean Ruger still refuses to make the records on grades and class standing by race available to Professor Wax, he will not be permitted to testify at the Grievance hearing. “Specifically,” they say, “he cannot be heard to claim that Prof. Wax made inaccurate statements about law student performance by race”—the basis for his charge that she be fired.
Meanwhile, Dean Ruger has found other ways to make life miserable for Wax while her tenure and livelihood hang in the balance.
What he has not been able to accomplish through due process—firing her—he has sought to achieve by waging a war of attrition against her.
Ruger had already stripped her of first-year teaching responsibilities in March 2018, taking away her mandatory first-year Civil Procedure course. Wax says that she was also removed from all committee assignments within the Law School, “without valid justification based on unfounded allegations of ‘bias.’”
By December of last year, the school newspaper gloated over the decline in enrollment in her remaining classes. The dean was behind that, too, Wax and Shapiro say: He deliberately created courses on the same topics as the ones she teaches to discourage students from enrolling in her classes.
These actions are “an attempt to stifle her expression and undermine her standing as a Penn professor and academic” and would be reason alone to justify a grievance.
The Grievance asks for the Faculty Senate proceedings to be terminated and for the harm caused by the Dean’s many attacks on Wax to be redressed and corrected by the Grievance Commission.
From the conclusion and relief requested:
Wax and Shapiro point out that UPenn is expending substantial resources, engaging the services of premier law firm Quinn Emanuel, on a case which never should have been brought and in which they have no proof. But if the Commission follows UPenn policies on academic freedom and tenure, and if they conduct themselves professionally and rationally, the charges should be dropped.
Those are big ifs.
If, however, the University goes forward with a hearing and sanctions Prof. Wax without releasing exculpatory evidence like information on grades by race, she will have a breach of contract claim. That is because, as a tenured professor, school policy guarantees her a proceeding which is fundamentally fair.
And that much seems certain.
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