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In the Evidence class I’m teaching, we’ve just finished discussing “impeachment” — how to challenge a witness’s credibility. Sometimes a trial lawyer may ask a witness about past conduct, because reasonable jurors may doubt a witness’s truthfulness today if they determine the witness has behaved deceitfully in the past.

That came to mind Tuesday when The Daily Pennsylvanian asked me to write a guest column about Professor Amy Wax’s recent Wall Street Journal op-ed. Back in August, Professor Wax published a co-authored op-ed in the Philadelphia Inquirer and soon after did an interview with the DP. I assume most people around Penn are familiar with the controversy that ensued, including the open letter published in response by 33 of Professor Wax’s colleagues, which I organized.

Professor Wax’s WSJ op-ed characterizes conversations with several colleagues — and the Dean, who she claims caved to “pressure” to “banish” her by asking her “to take a leave of absence.” A news article in the DP quotes the law school’s spokesperson stating the Dean discussed Professor Wax’s regular sabbatical leave, which is one form of leave of absence under Penn’s policies

Jonah B. Gelbach

I wasn’t involved in whatever communications occurred between Professor Wax and either Dean Theodore Ruger or our other colleagues. But her record of selective editing and behavior that contradicts her claimed principles have led me to distrust whatever Professor Wax won’t document in full.

First, in the initial version of her WSJ op-ed, Professor Wax neglected to tell readers about two detailed substantive rebuttals of her Philadelphia Inquirer claims — each published by an open letter signer. Here’s Professor Jon Klick’s, at the Heterodox Academy website. And here’s mine, at the same place. 

Professor Wax’s omission was a serious one. It induced the WSJ to tweet the falsehood that Professor Wax’s “colleagues were eager to banish her but not to discuss the issues.” Only after I pointed out the falseness of this promotional tweet did the WSJ update the online version of her op-ed, inserting links to the critiques Professor Wax failed to acknowledge.

Second, Professor Wax has not responded in substance to either Professor Klick’s critique or mine. That’s inconsistent with her claim that she believes in reasoned debate. 

Third, when she did acknowledge my critique’s existence in an October speech at Penn Law, Professor Wax falsely claimed I called her Inquirer piece “a hateful diatribe” (go to 12:55 of this video). That is false. I did call her piece “a diatribe”, and though the distinction might seem small, it was quite significant in context. (I don’t have space here to explain why, but anyone interested can go here, type Control-F, and then “diatribe,” to see what was at issue). 

Fourth, in the WSJ, Professor Wax claims that the open letter rejects “all of [her] views.” A paragraph down she suggests we condemned her personally for those views. I teach my law students to read fairly and in context. When one reads the open letter that way, one sees that Professor Wax’s description is one part tendentious and one part false. The open letter quoted a particular set of statements in order to reject them in particular; on no reasonable reading did it condemn “all of [her] views.” And not even an unreasonable reading backs up her claim that it condemned her personally.

Fifth, Professor Wax claims the open letter invited students to monitor and report on her. That’s misleading, too, because this part of the letter was addressed “To our students” — which means all of them — and suggested they should let faculty know if their experience at Penn Law isn’t characterized by “academic freedom, open debate and a commitment by all participants to respect one another without bias or stereotype.” Tellingly, Professor Wax’s WSJ op-ed references the “without bias or stereotype” part but fails to mention our endorsements of “academic freedom” and “open debate.”

Sixth and seventh are two instances in which Professor Wax took aim at my own ability to speak publicly. The day my response was published at the Heterodox Academy blog, Professor Wax emailed its editor, Jon Haidt — New York University’s Thomas Cooley Professor of Ethical Leadership — and asked him to censor it. To his discredit, Professor Haidt acceded, refusing to re-publish unless I edited in accord with Professor Wax’s demand; readers interested in the details can read more here. Finally, a few hours after I sent Professor Wax my draft, she emailed Dean Ruger and both his deputies, asking them to “encourage” me to “retract” the open letter. These acts are inconsistent with the “free and open debate in a civil manner” Professor Wax says she favors.

I don’t know why Professor Wax has engaged in so much misleading conduct. Maybe it’s a clear-eyed scheme to con people who gullibly swallow any horror story about universities, maybe her feelings are hurt because so many colleagues rejected her statements so publicly, and maybe she has some other motivation.

Whatever her motivations, Professor Wax’s record of key omissions, misleading editing, and false quoting have led me to the opinion that her claims warrant no independent credence. Others in our community — the jurors of this situation — may decide for themselves whether to trust her word.

JONAH B. GELBACH is a professor at Penn Law School.

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