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Penn Law professor Amy Wax Credit: Julia Schorr

“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,” said Penn Law professor Amy Wax in a discussion about the downsides of affirmative action with Brown University economics professor Glenn Loury for his video blog. “I can think of maybe one or two students who scored in the top half of my required first year course.” 

From this soundbite sprang a petition and a sweeping campaign to strip Wax of her teaching role of a mandatory first-year course. A statement issued last week by Penn Law Dean Theodore Ruger announced that Penn Law will comply with this demand. Rather than upholding free discourse and rigorous debate as core institutional values, Ruger has chosen instead to delegate the role of judge, jury, and executioner to those too incensed by Wax’s comments to bother contextualizing her statements or entertaining the faintest possibility of their validity. 

The petition alleges that Wax’s comments violate Penn Law’s policy of keeping grades anonymous and private and states, “We would like to know upon what data Professor Wax relies.” However, just one minute after the offending remarks, Wax said in the same interview, “I haven’t done a survey, I haven’t done a systematic study … I have a big class of 89, 95 students every year. I have a big chunk of students, so I’m going off that. Because a lot of it is of course closely guarded secret, as you can imagine.” 

Wax’s general and anecdotal observations may be distasteful and impolitic, but equating them with a breach of privacy to further “her scholarly ends,” as Ruger puts it, seems dishonest.

Penn Education professor Jonathan Zimmerman, author of “Campus Politics: What Everyone Needs to Know,” told me that though he does not know enough about Penn Law’s policies to dismiss the breach of privacy argument, he suspects that it’s “really a stalking horse for something else.” 

Credit: Julia Schorr

Law professor Amy Wax and dean Ted Ruger

Zimmerman pointed out that, had Wax instead made a functionally equivalent yet more positive observation by stating that her black students are always at the top of their class, the same objection ought to apply, yet “we almost certainly wouldn’t hear it.” Wax has long found herself in between crosshairs for her unpopular stances, of which her criticism of affirmative action is just one example. Her contentious and inflammatory track record may well be the “something else” Wax is truly being punished for.

Regardless of the credibility of the policy violation line of reasoning, the alleged inaccuracy of Wax’s statements is arguably a greater offense. Unfortunately, Dean Ruger provides absolutely no evidence backing this charge.

Wax’s statement is phrased as a subjective observation, not an absolute fact. This largely insulates it against falsifiability. Of course, it is still worthwhile to determine if Wax’s recollection of black students’ performance is unreliable. On this count, Ruger writes, “Penn Law does not permit the public disclosure of grades or class rankings, and we do not collect, sort, or publicize grade performance by racial group. The existence of these policies and practices, while constraining this response, is not an invitation to statements made with conscious indifference to their truth content.” 

If Penn Law indeed does not collect or sort grade performance by racial group, Dean Ruger cannot possibly prove that Wax’s observations are ill-founded. The only statement made with conscious indifference to its truth content might be Ruger’s.

“The discrediting of Wax is consciously ignorant of data and propped up purely on the emotional and moral outrage of an offended opposition more concerned with comfort than truth.”

Loury points out in an emailed statement to The Daily Pennsylvanian that, if the data would allow Ruger to expose to Wax and the world that those selected under preferential affirmative action policies perform every bit as well as their peers once they’re at Penn Law, “one suspects that Dean Ruger wouldn't be so circumspect about revealing it.” The more likely — and distressing — possibility is that gaps in performance between racial groups might prevail at Penn Law, just as they do for key admissions criteria like undergraduate GPA or LSAT performance. If this inference is credible, discussing things openly would be an uncomfortable yet far more productive step than maintaining willful ignorance.

The discrediting of Wax is consciously ignorant of data and propped up purely on the emotional and moral outrage of an offended opposition more concerned with comfort than truth. In contrast, as Wax pointed out to me in an email, her observations are in line with data published in a Stanford Law Review study by University of California at Los Angeles law professor Richard Sander in 2005 which advances the same “mismatch hypothesis” of affirmative action in law schools that Wax discusses in the Loury interview. Sander and other proponents of the mismatch hypothesis hold that affirmative action can do more harm than good by admitting students to schools that they are unprepared for, setting them up to perform badly. 

“The mismatch theory is part of our discourse; indeed, it was invoked by Justice Scalia!” Zimmerman tells me. “That doesn’t make it right, but it makes it something that any law student should have to address and critique.” While he’s sympathetic toward those who Wax has offended, Zimmerman noted that the degree of outrage does not constitute “a cogent reason to muzzle Amy Wax or her point of view.” 

Being uncomfortable or offended is unequivocally undesirable, and maybe Wax ought to be more sensitive to this reality. Still, when we “categorically reject” and condemn facts, viewpoints, and people that run against the leftward grain of campus orthodoxy, we permit the thought-policing of Wax and her increasingly rare conservative peers in higher education, starving academic discourse for all of us and moving us toward a world where censorship is a matter of a mob’s discretion.

MATEEN TABATABAEI is a College freshman from Newton, Mass. His email address is mateen@sas.upenn.edu.

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