Inside the University of Pennsylvania's Precedent-Setting Effort To Revoke Tenure From Its Most Controversial Professor

The school says it's protecting students. Critics say it's destroying academic freedom.

UPenn professor Amy Wax / C-SPAN
February 13, 2023

On September 16, 2019, students at the University of Pennsylvania Law School hosted a town hall with law school dean Theodore Ruger to discuss the "issues" surrounding Amy Wax.

A tenured professor at the law school, Wax had sparked outrage earlier that year when she argued, in a speech at the National Conservatism Conference, that the United States should favor immigrants from countries with similar values to its own. Since those nations "remain mostly white for now," Wax said, her approach implied that "our country will be better off with more whites and fewer non-whites"—even though, she stipulated, the policy "doesn't rely on race at all."

In audio of the town hall obtained by the Washington Free Beacon, Ruger told students that Wax's comments were "racist" and had caused "harm." He also suggested they could be grounds to fire her: It "sucks" that Wax "still works here," Ruger said, adding that the "only way to get rid of a tenured professor" is a "process" that is "gonna take months."

The town hall set the stage for a protracted battle over academic freedom. Since January 2022, Penn has been trying to sanction Wax—potentially by revoking her tenure and dismissing her—for statements the law school alleges violate its anti-discrimination policies. The case is testing the argument, aired by one of Wax's colleagues, that a professor's academic views can be so "offensive" that they "undercut" her ability to teach students and provide a "good case for termination."

Wax's views are undeniably controversial. She said in a 2017 interview that black law students "rarely" finish in the top half of their class. She has argued that black poverty is self-inflicted and, in the context of immigration policy, expressed a preference for "fewer Asians," citing their "indifference to liberty" and "overwhelming" support for Democrats. She even invited Jared Taylor, a self-described "white identity" advocate, to speak to her class on conservative thought, saying his views were "well within the subject matter of the course."

But tenure is intended to protect provocative speech. It came about in the 1920s after many professors were fired for endorsing then-controversial ideas like evolution, atheism, and free love. Robust job security meant academics could speak and teach freely about charged subjects, even if doing so was considered blasphemous.

That's why Wax's case has raised alarm about the future of academic freedom and the power of tenure to protect it. Unlike Princeton University's Joshua Katz, whom the school sacked ostensibly over his consensual relationship with a former student, Wax is under the microscope only for what she's said. Her dismissal would set a new precedent, signaling that tenured professors can be booted for airing views that students or administrators deem offensive.

"This is a game-changer, because it's a pure case of speech," Wax told the Free Beacon. "If they succeed in punishing me for that, it will eviscerate academic freedom as we know it."

Faculty across the political spectrum echo that warning. Wax's defenders include the conservative Princeton professor Robert George and the liberal Harvard Law professor Janet Halley, both of whom say Penn is playing with fire. "Statements on issues of law and public policy"—and the act of "inviting a controversial speaker" to class—are "unquestionably protected by academic freedom," Halley wrote in July on behalf of the Academic Freedom Alliance, a nonprofit that defends faculty speech rights.

George, who cofounded the alliance, said that punishing Wax for either would have a chilling effect. "The message to faculty and students alike will be clear," he said. "You had better not defy the campus orthodoxies, because if you do, the consequences could be severe."

The law school has maintained the case is about fairness rather than free speech. Ruger told Penn's faculty Senate in June that Wax's comments had led "reasonable students" to conclude that she would grade them "based on their race"—despite the law school's blind grading policy—and implied she had sabotaged the job prospects of minority students. She therefore deserved "major sanctions," a term defined by Penn's faculty handbook to include suspension and termination.

With that statement, Ruger triggered a disciplinary process that has been used just a handful of times in the university's history: The last time Penn axed a tenured faculty member, it was because he killed his wife.

This report—based on emails, memos, and recorded meetings—provides a window into Penn's efforts to oust its most controversial professor. It sheds light on tactics that, if successful, are likely to be employed against other tenured dissidents, including the concealment of evidence and the use of surreptitious probes. Penn, for example, ignored the results of an outside investigation that found "no evidence" Wax had treated students unfairly—then launched a second investigation, without disclosing it to Wax, and kept the results of both probes secret for months.

The opacity has alarmed the Foundation for Individual Rights and Expression, another free speech watchdog defending Wax, which told the Free Beacon that it would compound the case's chilling effect. "Anything less than total transparency," said Alex Morey, the group's director of campus advocacy, "sends the message that administrators will find a way to punish controversial academics at any cost."

Ruger, the dean of the law school, did not respond to a request for comment.

Penn's crusade against Wax is something of an about-face for the university, which as recently as 2015 awarded her its top teaching prize. But Wax, who holds Ivy League degrees in law, biophysics, and neuroscience, has always been an intellectual bomb-thrower: Her most explosive position may be that racial disparities have more to do with group differences in IQ than with racism, a belief she has defended in books, law review articles, and popular essays,

That view set the stage for an official complaint against Wax, filed in April 2021 by eight law school alumni, alleging that her "derogatory remarks" had harmed students. The complaint seized on her 2017 statement that black students rarely finish in the top half of their class, which, it said, had caused minority students to "reasonably assume" she had violated the school's anonymous grading policy.

Rather than adjudicate the complaint internally, Penn asked Daniel Rodriguez, a professor and former dean at Northwestern University law school, to serve as an outside investigator and determine whether there was any merit to the complaint. In August 2021, Rodriguez presented Penn general counsel Wendy White with a 45-page summary of his findings, based on interviews with 26 alumni.

The report, a copy of which was obtained by the Free Beacon, found that the most serious charges against Wax were baseless. There was "no evidence" she had "breach[ed] the anonymity of exams," "graded minority students differently," "denied them access to professional opportunities," or "singled them out for special ridicule," Rodriguez wrote.

Rodriguez did find that Wax made a number of off-the-cuff remarks—such as telling a black student she was admitted "because of affirmative action" and saying "Hispanic people don't seem to mind" loud neighborhoods—that were "harmful" or "derogatory." (Wax denies having made the comment about affirmative action.) But he also found that students had omitted the context of other remarks, making them sound worse than they really were. It seemed to be "the content and shape of her very controversial views"—rather than any sort of discriminatory conduct—that had troubled alumni, he said.

Rodriguez declined to comment, saying he had not followed Wax's case since his report.

Penn on its own does not appear to have considered these findings actionable: For four months, the law school sat on the report, neither notifying Wax of its completion nor initiating any disciplinary process against her.

Then, in December 2021, Wax said on a podcast that the "United States is better off with fewer Asians and less Asian immigration," part of a broader argument about the political and cultural challenges of demographic change. Calls for her ouster began almost immediately. One petition, signed by over 1,000 students and alumni, demanded the university reform the tenure policies that had protected her, while both the Philadelphia City Council and Pennsylvania state lawmakers pressured Penn to take action.

Amid the hullabaloo, Ruger announced in January 2022 that he would begin the sanctions process against Wax. He also retained Quinn Emanuel—the most liberal white-shoe law firm in the United States, according to one academic paper—to interview students, faculty, and graduates who had complained about Wax, including those Rodriguez had already interviewed.

This second investigation was a closely guarded secret. Quinn Emanuel, which did not respond to a request for comment, never reached out to interview Wax, she said, and the law school did not tell her about the firm's probe until Ruger cited it as evidence that she should be sanctioned, according to emails reviewed by the Free Beacon.

The delayed disclosure was part of a pattern: As the disciplinary process got underway, the school repeatedly withheld or slow-walked information that could give Wax a view into the proceedings, shielding facts that undercut its own narrative.

On March 2, 2022, for example, Ruger sent Wax a preliminary list of charges that reiterated many of the claims in the 2021 complaint, including her alleged violation of the school's blind grading policy and comments Rodriguez had concluded had been taken out of context. But he didn't provide her with the report that had debunked those claims until more than a month later, on April 7, after Wax had repeatedly asked to see it, the emails show.

The debunked claims were nonetheless incorporated into the final list of charges that Ruger sent the university's faculty Senate in June when he asked administrators to impose "major sanctions" on Wax. He claimed that the Rodriguez report had "credited many of the allegations" against her and included new allegations based in part on Quinn Emanuel's interviews. That was the first time Wax heard about the firm's investigation, she said.

Ruger's list conflated off-color comments—which might not be considered academic—with arguments and assignments that fall squarely within the traditional ambit of academic freedom. He attacked Wax for allegedly telling a black colleague, Anita Allen, that it is "rational to be afraid of black men in elevators," for example. But he also attacked her for arguing in a law review article that high-achieving students are sometimes harmed by the presence of low-income ones; for assigning an interview with Enoch Powell, a well-known British conservative, in a class on conservative thought; and for inviting Jared Taylor, the "white identity" advocate, to have lunch with that class—in part, Wax told the Free Beacon, so that her students could challenge him.

He also accused Wax of lying about the racial distribution of law school grades, saying her statements were not just rude but also "inaccurate."

As all this transpired, Wax's colleagues were quietly lobbying the faculty Senate—the group now charged with deciding her fate—to weaken tenure protections for "racist" academics.

A month after Ruger announced he would pursue disciplinary action against Wax, the faculty Senate in February of 2022 hosted a presentation on when it might be appropriate to sanction a tenured faculty member. There, Anita Allen—the same professor to whom Wax allegedly made the comment about black men in elevators—argued that "dissenting views" could be grounds for firing. If a professor's views are so "offensive," "racist," and "demeaning" that they "undercut" his ability to teach students, she said—or if those views imperil "core values like diversity, equity, and inclusion"—there is a "good case for termination," according to audio of the talk reviewed by the Free Beacon.

Allen was speaking from a position of authority: As the former vice provost for faculty, she'd been responsible for managing all tenure cases. That gave her argument special weight and, though she didn't mention Wax by name, others at the presentation did, with the talk explicitly framed as a primer on the upcoming disciplinary process.

Wax says that this process—and Allen's framing of it—have put her at a disadvantage.

When charges are brought against a tenured professor, the chairperson of the faculty Senate appoints a board composed of five faculty members to review them. That panel acts as both a judge and a jury, reaching a verdict and recommending a sentence, according to Penn's faculty handbook, as well as ruling on any procedural issues raised by the accused—including requests for information and objections to its own composition.

The result is an accuser-friendly system with a minimum of due process. In many legal settings, the accused has the right to disqualify jurors who have been exposed to prejudicial information. On paper, Penn's policies give Wax a similar right, letting her move to disqualify for prejudice any member of the hearing board.

But it is the board that adjudicates those motions in the first place. And when Wax asked which of its members had attended Allen's talk—saying she would move to disqualify anyone who heard it—the board refused to answer, stating in an October email that it had "unanimously decided" to proceed in its current form.

Allen declined to comment.

The hearing board also decides how many witnesses can be called and what evidence can be introduced, which means it can arbitrarily limit the accused's ability to defend against the charges. Wax has requested an independent forensic analysis of law school grades by race, saying it's the only way to test whether her claims about black student performance were "inaccurate." Ruger in November urged the hearing board to reject that request, and Wax is not optimistic it will be granted.

"They will do everything they can to resist this," she said. "Because they are rightly afraid of what it will show."

In an effort to overcome the procedural hurdles, Wax's lawyers on January 16 filed their own grievance against Ruger, saying his charges constitute "a direct attack" on academic freedom. They are demanding that he be removed from the proceedings and that the case be reassigned—from the Senate-appointed hearing board to Penn's Committee on Academic Freedom and Responsibility, which investigates violations of academic freedom. The decision of whether to reassign the case now rests with Sarah Kagan, the chairwoman of the Faculty Grievance Commission, who declined to comment.

If Penn does sanction Wax, she has indicated that she will file a lawsuit. Though as a private school Penn is not bound by the First Amendment, its official policies do promise faculty academic freedom—and Wax could sue for breach of contract.

The stakes of that lawsuit would be high. If Wax won, the resulting precedent would make it harder for all universities, not just Penn, to fire tenured dissidents. If she lost, it would give schools legal cover to axe them.

"Universities are just spoiling to purge dissidents like me," Wax said, "the few of us left who are standing in the way of a complete woke takeover. That's why this case is so important."