Monday, December 16, 2024
Amy Wax threatens to sue Penn if the sanctions are not lifted
Here's the lawyer's letter. The breach of contract claim is straightforward, and she should prevail on it given the AAUP principles to which the university has committed itself: as I've noted before, the University has made clear they are punishing her for her lawful but offensive extramural speech. The letter's claim of race discrimination strikes me as bizarre, but perhaps someone can explain the theory and why Wax has standing to pursue it. Signed comments (full name, valid email address [which will not appear]) will be strongly preferred. Submit your comment only once, it may take awhile to appear.
https://leiterlawschool.typepad.com/leiter/2024/12/amy-wax-threatens-to-sue-penn-if-the-sanctions-are-not-lifted.html
Comments
As I read the letter, the discrimination claim is that the university takes no action on extramural speech if you are non-white, but if you are white you get punished, and that's discrimination. Seems like a classic reverse-discrimination claim - she would have standing for that, I would think, though winning it may be more difficult.
Posted by: Michael Risch | Dec 16, 2024 4:16:53 PM
Another strong argument in defense of Amy Wax is that some of her most criticized statement are factual in nature, and therefore capable of being proven true or false.
As with defamation, truth should be a defense, even if some find the true statement of facts to be objectionable, racist, sexist, etc.
In other words, calling a statement “racist” is not a valid argument refuting it, nor for imposing punishment, if it is nevertheless true.
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.”
Penn could easily refute this statement if it’s factually incorrect, and especially if it is so clearly wrong as to warrant punishment, since it has in its computer the grades Wax has assigned during her time there.
Yet Penn apparently has refused – although it clearly has the ability – to refute Wax’s factual statement, and thereby at least begin to justify some punishment.
Indeed, this strange silence suggests that she might have been correct in pointing out - as others have also - a possible problem.
Posted by: LawProf John Banzhaf | Dec 17, 2024 10:29:43 AM
IN reply to Prof. Banzhaf: the truth or falsity of statements disparating identifable classes of students at the school is irrelevant, and Prof. Wax was already sanctioned for that. Moreover, as far as I can see, she was correctly sanctioned for that, as I discussed earlier: https://leiterlawschool.typepad.com/leiter/2018/03/academic-freedom-and-the-obligations-of-university-administrators-especially-regarding-faculty-speec.html. But this is a side issue, since it is not the primary basis for the sanctions Professor Wax currently contests.
Posted by: Brian Leiter | Dec 17, 2024 12:46:55 PM
There is surely some measure of extramural speech punishment here, but the letter fails to address ALL the findings of the original hearing board, which focused in large part on in-classroom activities: 1. Presenting as uncontroverted things that are highly controverted (e.g. teaching too far outside the bounds of accepted limits in her field), 2. Violation of privacy policy, and 3. Failure to treat students equitably inside the classroom.
Maybe all of those findings are completely unsupported by evidence. If she wants to file a suit to test it, she should. But the letter doesn't assert any such thing, and thus is not terribly persuasive to me. Indeed, one of the sanctions was that she make clear that her views are her own when speaking. That implies that the university fully expects continued extramural speech, which is contrary to the thrust of the letter.
BL COMMENT: I assume they left those items out because the external review commissioned by the Dean could not confirm them.
Posted by: Michael Risch | Dec 16, 2024 2:37:31 PM