January 18, 2022
Penn Law to move forward with faculty process for sanction of a tenured faculty member in Amy Wax case
Ted Ruger, the Penn Dean, sent out this letter today (and several readers shared it with me):
From: Dean's Office <firstname.lastname@example.org>
Sent: Tuesday, January 18, 2022 12:10 PM
Subject: A Message from Dean Ruger
Dear Law School students, faculty, and staff,
Since at least 2017, and most recently again two weeks ago, Professor Amy Wax has repeatedly made derogatory public statements about the characteristics, attitudes, and abilities of a majority of those who study, teach, and work here. In some of those instances, she has exploited her faculty access to confidential information about students in ostensible support of her inaccurate statements.
Her conduct has generated multiple complaints from members of our community citing the impact of pervasive and recurring vitriol and promotion of white supremacy as cumulative and increasing. The complaints assert that it is impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus. These complaints clearly call for a process that can fairly consider claims, for example, that her conduct is having an adverse and discernable impact on her teaching and classroom activities.
Taking her public behavior, prior complaints, and more recent complaints together, I have decided it is my responsibility as Dean to initiate the University procedure governing sanctions taken against a faculty member. As I have already discussed with Faculty Senate leadership, I am aggregating the complaints received to date, together with other information available to me, and will serve as the named complainant for these matters. This process is necessarily thorough and deliberate, but using it allows consideration of the range of minor and major sanctions permissible under the University’s rules.
As this process takes place, my colleagues and I will continue the daily work of the University of Pennsylvania Carey Law School in training and supporting brilliant attorneys from the broadest possible range of backgrounds, ensuring equitable treatment in the classroom and throughout our institution.
A few thoughts below the fold.
January 16, 2022
I loathe what Amy Wax has said....But academic freedom protects her right to say it and a revocation of her tenure would violate principles of academic freedom...A core aspect of academic freedom is that both faculty members and students can engage in intellectual debate without fear of censorship or retaliation. This includes the right to express hurtful views.
January 14, 2022
Under the AAUP definition of academic freedom, "extramural" speech by faculty is protected speech that cannot be sanctioned by a university employer. Yet even the First Amendment right of public sector employees to free speech can be outweighed by the employer's interest in running its workplace efficiently and without excessive disruption (the "Pickering test"). One can imagine a court being sympathetic to a private university's invocation of similar reasoning. Certainly Professor Wax is speaking on a matter of "public interest" (immigration policy), but does her speech impede Penn's ability to perform its educational mission? This will turn on information not in the public domain: Do students still take her classes? Do certain racial and ethnic groups avoid her classes? Is there any evidence of racial harassment or misconduct in the classroom? Student offense should not be a metric for the acceptability of faculty speech, for obvious reasons; but at some point, offensive and inflammatory speech by a faculty member could, in principle, impede the school's ability to perform its pedagogical functions.
Given the now extraordinary external political pressure being brought to bear, it will be hard for Penn to show that any rationale it offers for terminating Wax is anything other than pretextual.
This is yet another instance where, to quote another law professor (speaking, in that case, about the unhinged Richard Painter): "It is a shame that faculty do not have a 25th amendment to invoke against their colleagues in situations like this." Principles of tenure and academic freedom, however, rule that out.
We are disappointed by Penn Law’s statement that it is considering bringing disciplinary action against professor Amy Wax, and call on Penn to immediately abandon that effort. Neither Wax’s tenure nor the freedom of expression Penn promises to its faculty are subject to public approval. They exist to protect not only popular but also deeply unpopular speech. Weakening these principles because people find one professor’s speech objectionable will dilute them for all faculty across the ideological spectrum, including those facing efforts by lawmakers to restrict academic speech on race in America. Abandoning these commitments will most hurt those untenured faculty who can only rely on their institutions’ commitments to freedom of expression.
ANOTHER UPDATE (1/15): Predictably, the unhinged Richard Painter has been ranting and raving ever since he noticed the parenthetical reference to him, above. (Thanks for linking, Richard, you put money in my pocket every time you send visits my way!) He is sufficiently dense that he can't figure out what the point of the original post was, so let me try to make it clearer for simpletons: the AAUP definition of academic freedom, to which Penn is committed, protects faculty from sanction by their university for offensive extramural speech. (That's why you can't have a 25th Amendment for unhinged faculty.) Arguably, however, if extramural speech interferes with the ability of the faculty member or the institution to performs its functions (hence the analogy to Pickering), a university could sanction the faculty member. Unfortunately, the extraordinary political pressure being brought to bear to fire Wax would make any such move by Penn now seem merely pretextual: it would be clear she was being punished for her offensive speech.
Richard has been demanding Penn fire Wax, since, of course, he has consistent and unbridled contempt for the academic freedom rights of faculty in all cases, not just this one. (Recall his go-to lie about me, which also involved an academic freedom issue; this led one of his own Minnesota colleagues to write to me, "I am truly sorry that you've had to endure what, I agree, has been a terrible misrepresentation of your statements and attempt to twitter-harass you." That's quite an achievement, when your own colleagues have to apologize for your serial dishonesty!) Could Minnesota sanction Richard for his unhinged behavior under the Pickering standard? I doubt it. It is true that his endless vendettas of "twitter-harassment" against me and other academics--not to mention his sadistic and continuing persecution of a woman he has acknowledged has mental health problems--are not matters of "public concern"; and it is probable that this crazy behavior has damaged the reputation of Minnesota in the legal academic community; but I have seen no evidence it has interfered with the school's educational functions.
January 13, 2022
Koppelman on Emory Law Journal's rejection of an invited symposium piece as "hurtful" and "divisive"
Andrew Koppelman (Northwestern) writes about the incident at CHE:
The law journal had invited papers for a symposium honoring Michael Perry, one of the most important living constitutional theorists. An invitation of this sort normally includes a commitment to publish if basic scholarly standards are met. One invitee was the University of San Diego professor Larry Alexander, whose piece engaged with Perry’s work on racial discrimination. Alexander argued that the principal causes of Black poverty are not racism but the cultural factors that have produced family disintegration, which in turn have produced poor educational achievement and crime.
The Emory editors told Alexander that they would not publish his essay unless he deleted an entire section of his discussion. Their initial memo declared that “our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit.” It noted that “as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint.” But when it became clear that Alexander would stick to that thesis, the editors evidently changed their minds. The next email was an ultimatum. It conceded that “there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer.” But, they said, his piece was “hurtful and unnecessarily divisive"....
January 04, 2022
Professor Ramseyer responds to critics of his article on prostitution contracts and Japanese "comfort women"
We noted the controversy last year (e.g., here and here), and now Professor Ramseyer (Harvard) has prepared a vigorous defense, which he kindly gave permission to share: Download Ramseyer response to critics SSRN-id4000145.
UPDATE: One of the few responses published in an academic journal is this one, which Professor Ramseyer mentions in his reply.
That's the apt gloss by the funniest law professor on Twitter on the latest "wisdom" courtesy of Professor Wax. First she disparaged African-American students at Penn, now she's come for the "Asians" (with a jab at her least favorite racial group thrown in as well):
In the case of Asians in the U.S., the overwhelming majority vote Democratic. In my opinion, the Democratic Party is a pernicious influence and force in our country today. It advocates for “wokeness,” demands equal outcomes despite clear individual and group differences in talent, ability, and drive, mindlessly valorizes blacks (the group most responsible for anti-Asian violence) regardless of behavior or self-inflicted wounds, sneers at traditional family forms, undermines and disparages the advantages of personal responsibility, hard work, and accountability, and attacks the meritocracy.
I confess I find Asian support for these policies mystifying, as I fail to see how they are in Asians’ interest. We can speculate (and, yes, generalize) about Asians’ desire to please the elite, single-minded focus on self-advancement, conformity and obsequiousness, lack of deep post-Enlightenment conviction, timidity toward centralized authority (however unreasoned), indifference to liberty, lack of thoughtful and audacious individualism, and excessive tolerance for bossy, mindless social engineering, etc.
Soon the only students who can safely take her classes at Penn will be Jews and WASPs.
ADDENDUM: An opinion writer at a local Philadelphia magazine reviews the history of her remarks (as of 2019) and, predictably, called for Professor Wax to be fired. Penn Dean Ruger has issued an even stronger condemnation than before of her recent racist tirade (quoted above).
December 19, 2021
Last Friday, the university informed Professor Kilborn's lawyer that Professor Kilborn would be suspended from teaching this Spring at UIC's John Marshall Law School (although still paid, and still required to perform administrative duties) so that he can participate in rather time-intensive "re-education" programs: Download 21; 12.16 from Alsterda
Professor Kilborn will be subjected to an 8-week indoctrination course--20 hours of coursework, required "self-reflection" (self-criticism?) papers for each of 5 modules, plus weekly 90-minute sessions with a trainer followed by three more weeks of vaguely described supplemental meetings with this trainer. Since the trainer will provide "feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program," disagreement or skepticism about the content of the program is presumably not welcome.
This is simply chilling.
December 13, 2021
Lawprof Scott Dodson (Hastings) kindly shared a list of faculty under the age of 50 who have appeared on the "most-cited" lists for the period 2016-2020. Law schools with three or more faculty on the "under 50" list are: Chicago (7), Harvard (7), Yale (7), Georgetown (6), NYU (5), William & Mary (3). On a per capita basis (as a percentage of the tenured faculty at each school), the top five schools are:
1. University of Chicago (18%)
2. Yale University (14%)
3. College of William & Mary (11%)
4. Harvard University (8%)
5. Georgetown University (7%)
December 01, 2021
Academic Freedom Alliance weighs in on case of Professor Kilborn at Illinois/Chicago John Marshall Law School
UPDATE: Keith Whittington (Princeton) points out to me that the Administration has "stepped in," to defend the witch hunt! The statement simply repeats the allegations that were dispatched by Professor Koppelman in his CHE article. The chilling effect of all this at the University of Illinois at Chicago (not just the law school) will be immense, now that the Administration has put faculty on notice that any stray remarks that are plainly neither harasasing nor discriminatory can trigger official investigations and sanctions.
November 18, 2021
UIC's John Marshall Law School should lose its accreditation if it continues with this "witch hunt" against a faculty member
Professor Andy Koppelman (Northwestern) comments at CHE (do read the full account):
In January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn’t do.
The trouble started when, in a “Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test’s scenario, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test’s 50 questions.)