Amy Wax, the tenured law professor who was sanctioned for her controversial remarks about racial issues, sued the University of Pennsylvania on Thursday for breach of contract and race discrimination, putting a dispute over tenure and academic freedom that has dragged on for almost three years into the hands of a federal court. The complaint comes after Wax was suspended for a year at half-pay and stripped of her named chair, penalties the lawsuit says are "illegal multiple times over."
"The imposition of academic discipline violates the University's contractual promise to Professor Wax to abide by the principles of the First Amendment," the lawsuit reads. And "the University's Speech Policy, which is the basis of that discipline, unlawfully discriminates based on the race … of both speakers and targets of speech."
The complaint advances a novel legal theory that could have major implications for universities as they brace for the incoming Trump administration. Wax argues that Penn engaged in race discrimination by punishing speech that offended racial minorities but not speech that offended Jews, citing a litany of cases in which the school declined to discipline professors who deployed anti-Semitic tropes and called for the destruction of Israel.
"Penn tolerated speech targeting Jews while punishing Professor Wax for speech about affirmative action and other racial topics," the lawsuit reads. "Race therefore was a but-for cause"—that is, a key motivation—"of the decision to discipline Plaintiff Wax."
If that argument is accepted by Pennsylvania's Eastern District court, it could become a roadmap for plaintiffs and government agencies seeking to challenge the double standards that emerged on campus after the October 7 attacks, when schools that had spent years policing microaggressions turned on a dime to defend the free speech rights of anti-Israel protesters, some of whom flew terrorist flags and used anti-Semitic rhetoric.
The hypocrisy was particularly glaring at Penn, whose former president Liz Magill resigned after she said at a congressional hearing that calls for the genocide of Jews do not necessarily constitute harassment. To illustrate the double standard, the complaint includes a table comparing Wax's speech with that of a fellow Penn faculty member, Dwayne Booth, who published a cartoon depicting Zionists drinking the blood of Gazans.
While the university took no action against Booth—claiming his speech was protected by Penn's "bedrock commitment to open expression"—it did sanction Wax over a series of remarks that the school said amounted to "inequitably targeted disrespect." Those remarks included criticisms of affirmative action, claims about the racial distribution of law school grades, and the statement that diversity officials "couldn't be scholars if their life depended on it," assertions the university said had "harmed" students.
"There is no rational way to conclude that Professor Wax's statements would cause more 'harm' than Mr. Booth's blood-libel cartoon," the lawsuit reads. "Yet the University has sought only to discipline Professor Wax, while hiding behind disingenuous paeans to free speech and a supposed commitment to academic free expression to justify its decision not to lift a finger against Mr. Booth."
Penn did not immediately respond to a request for comment.
The complaint, obtained exclusively by the Washington Free Beacon, comes days before the inauguration of a president-elect who has promised to "reclaim" universities from the "radical Left" and cut funding to schools engaged in race discrimination. The timing could put Penn in the crosshairs as the Trump administration hunts for early targets. And Wax's lawyers seem giddy at that prospect, telling the Free Beacon that the school's "racist double standards" justify a wholesale revocation of federal funding.
"Given Penn's multiple egregious violations of federal anti-discrimination law, including those detailed in our complaint, there is ample justification for cutting off Penn's federal funding across the board," said Wax's lead counsel, Jason Torchinsky, a former official in the Department of Justice's civil rights division. "Private universities like Penn have ample resources to fund their own discriminatory actions, which they continue to engage in unabated. They should not be relying on taxpayers to foot the bill."
The case might make it harder for universities to get away with a fair-weather approach to free expression, Torchinsky added, setting a precedent that they must either "abide by First Amendment principles" or, if they insist on censoring speech, "do so in a manner that is not racially discriminatory."
Penn initiated disciplinary proceedings against Wax in March 2022, after she said on a podcast that the United States should accept fewer immigrants from Asia given their tendency to vote for Democrats. But administrators were hinting that they planned to sanction her as early as 2019, when the dean of Penn Law School at the time, Theodore Ruger, told students at a town hall that "it sucks" that Wax "still works here."
The "only way to get rid of a tenured professor," he added, is a "process" that is "gonna take months."
The lawsuit cites those comments to argue that the school was acting in bad faith from the start, using a set of "kangaroo-court-like procedures" to reach a predetermined outcome. For example, the university charged Wax with a "major infraction" under Penn's faculty handbook, a category that covers criminal conduct like sexual assault and murder. The charge triggered a disciplinary process that was not designed for academic freedom issues, according to the lawsuit, and implied that "Wax's speech was equivalent in kind and degree to conduct like murder or sexual assault."
"Penn has never used the 'major infractions' procedures for any other speech," the complaint reads. "Indeed, it has not even invoked the minor infractions disciplinary procedures for any of the anti-Semitic speech or incitements to violence described in this Complaint."
It initially looked as though Penn's botched handling of anti-Semitism would resolve Wax's situation. Facing criticism for her decision to allow prominent anti-Semites to speak at a campus literary festival, Magill told trustees in September 2023 that the school voluntarily adheres to the First Amendment. She reiterated that policy a few months later when she was asked at a congressional hearing why Penn had not punished Ahmad Almallah, a university lecturer, for leading "Intifada" chants in the wake of the October 7 attacks.
Wax seized on Magill's statements to argue that she was the victim of selective prosecution and would have a strong legal case in the event that Penn sanctioned her. She used that threat to pressure Penn into settlement talks, nearly securing a deal that would have let her keep her base salary over the course of her suspension.
The negotiations broke down after Penn demanded that Wax waive her right to sue or criticize the university over the way it treated her. After all, she told the Free Beacon at the time, "this case is about free expression."
The lawsuit argues that Penn doesn't just discriminate based on the subject of speech, but on the identity of the speaker. "White speakers are far more likely to be disciplined for 'harmful' speech while minority speakers are rarely, if ever, subject to disciplinary procedures for the same," the complaint asserts. "The University's Speech Policy thus discriminates on the basis of race and other protected grounds—both in terms of the identity of speakers and the subject of speech."