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Amy Wax, Liz Magill, and Hypocrisy

I represent Professor Amy L. Wax, a tenured professor of law at the University of Pennsylvania Carey Law School. She is the target of charges brought by the former dean of the law school; he asked the school to strip her of tenure and fire her for remarks she made in the media and on campus.

Whatever you may have heard or read about the case, the events of the last few weeks concerning a “Palestine Writes Literature Festival” at Penn and the University’s response to it, and the rallies on campus and statements that have been made since, proves one thing: My client is the victim of a glaring double standard which can only be explained by Penn’s naked, left-leaning partisanship. If you are a Jew-hating and Israel-bashing propagandist, you can say anything and invite anyone you want to campus and you are protected by the school’s commitment to academic freedom. However, if you are a white Jewish conservative thinker who openly challenges the notion that “institutional” or “structural racism” explains life for many African Americans today and you assign books and invite speakers who support those views, then you need to go.

Here’s the background: Professor Wax teaches a conservative thought seminar, and she is vocal on social media in expressing conservative ideas. (She was also so admired for her teaching that she won a prestigious award that rarely goes to law professors.) She invited Jared Taylor to speak to her class. Mr. Taylor (Yale University ’73) is a controversial figure on the extreme right of American politics and the head of the organization, “American Renaissance”. Taylor’s thinking combines conventional conservative ideas regarding family and community, classical liberal and libertarian ideas regarding freedom of association and basic property and economic rights, and ideas championing ethnoracial homogeneity within nations and a disdain for multiculturalism. His arguments are drawn from both historical experience and contemporary sociobiology.

The presence of Mr. Taylor in Professor Wax’s class led the dean to seek “major sanctions” against her. He also objected to my client assigning work by Charles Murray who writes about group differences in IQ, and the United Kingdom politician Enoch Powell who was critical of immigration from British Commonwealth nations to the United Kingdom during the 1960s. Among Professor Wax’s podcast statements for which the dean also seeks sanctions are that “Given the realities of different rates of crime, different average IQs, people have to accept, without apology, that Blacks are not going to be evenly distributed through all occupations” and that “there are a lot of things that Blacks themselves could reform to make their lives better, not have such a high out-of-wedlock birth rate, for example. Use drugs less [and] stop committing crimes.” Issues of race permeate the charges. To buttress his case against Professor Wax based on her media statements, the dean threw in a handful of isolated, years’ old allegations (which are highly contested) about claimed interactions between Professor Wax and a few minority students. But make no mistake: The charges were overwhelmingly based on what Professor Wax wrote and said outside the University about race as well as who she assigned and who was invited to speak to her class.

The dean concluded that by inviting Jared Taylor to campus, and by making comments about Black people on podcasts, Professor Wax had committed “a major infraction of the University’s behavioral standards.” You read that right: “Behavioral” standards. The charges were based on the theory that my client’s words, what she assigned, and whom she invited, “harmed” Black students and created “a demoralizing and demeaning environment for them.” That Professor Wax’s words were entirely protected by established principles of academic freedom the dean has never acknowledged.

I moved to dismiss the charges based on (among others) the legal concept of “selective prosecution” which is a fancy way of saying that it simply isn’t fair for a powerful institution (a government or a University) to single out one individual for expressing controversial or potentially offensive views when others who do the same get off scot-free.

I pointed out, for example, that no one at the University of Pennsylvania Law Review was sanctioned for accepting an essay by William J. Aceves, a professor of law at California Western School of Law, who argued that “Ours is a racist Constitution.” Or consider that, in 1995, Penn Carey Law Professor Regina Austin suggested in a law review article that anti-Jewish conspiracy theories in the Black community can have positive effects because they promote Black community solidarity and cohesion by writing that “conspiracy theorizing by Blacks is a form of creative and imaginative speculation about concrete conditions that seem to defy conventional treatment.” {snip}