A Fireable Offense

You’ve probably heard of University of Pennsylvania Robert Mundheim Professor of Law Amy Wax (or “‘Racist’ Penn Law Prof,” according to a recent Daily Beast headline). If you haven't, she’s pretty easy to find—and she may have publicly disparaged your identity.

Down the Wax rabbit hole, you might peruse The Daily Pennsylvanian’s dozens of articles about her offenses, piecing together a matrix of questions of academic freedom and accountability. You might Google “Amy Wax” to 19 million results in 0.57 seconds (or “Amy Wax racism”: 6 million, 0.42 seconds). Or, you might follow Apratim Vidyarthi (L '22) on Instagram, where he chronicles the Wax Resistance to fewer than 500 followers through media commentary and screenshots of correspondence with law school administrators and hate comments from free speech enthusiasts. 

A few months away from graduating from Penn Law School, Apratim is the latest in a line of Penn Law student organizers advocating for Wax to be fired. He can’t remember the first time he caught wind of her inflammatory remarks, just that he heard whispers before he even arrived on campus in 2019. As a first–year law student, Apratim joined student government in the midst of a conflict between cultural organizations and law school administrators after Wax remarked that America is “better off with more whites and fewer nonwhites.” Some students met with administrators, including Penn Law Dean Theodore Ruger, to discuss repercussions and support for students of color, but three years later, Wax is still teaching and doubling down on her remarks. 

On paper, Wax is exactly what you’d expect of a lauded Penn Law professor. She attended an exhaustive list of elite institutions: Yale College, University of Oxford, Harvard Medical School, Harvard Law School, and Columbia Law School. Before coming to Penn Law in 2001, she worked in the Office of the Solicitor General in the Department of Justice and taught at the University of Virginia Law School, amid clerkships, residencies, and publications in prestigious law journals. 

However, Wax’s academic career is poisoned with “thoroughly anti–intellectual and racist comments,” according to a Jan. 3 statement from Ruger. She’s championed the 1950s “bourgeois cultural script” which excludes Black, Hispanic, and working–class Americans, argued against affirmative action, and remarked that she’s never “seen a Black student graduate in the top quarter of the class” at Penn Law—a statement Ruger said was false.

Most recently, Wax came under fire for statements from a Dec. 20 interview with Brown University professor Glenn Loury, where she contended that “the United States is better off with fewer Asians and less Asian immigration.” Wax is a tenured professor at Penn, alongside about 472 standing faculty of Asian descent, and her classes are available to the 103 Asian students enrolled at Penn Law.   

Street reached out multiple times to Dean Ruger, Vice President of University Communications Stephen MacCarthy, and professor Amy Wax for comment about the University sanctions process and received no response. Street also contacted the Office of University Life, which provided a statement in support of Ruger’s remarks and the statement put out by the Task Force on Support to Asian and Asian American Students and Scholars. Additionally, Street reached out to the Penn Law Office of Equity & Inclusion, which responded with background information about the Office, Penn Law demographic information, and diversity goals for the future.

Despite her inflammatory remarks, Wax seems “uncancellable,” according to Loury. Wax faces backlash from students and academics following each racist outburst, but rarely receives administrative consequences for her hateful comments. In 2018, Ruger barred Wax from teaching mandatory first–year classes at Penn Law, but she is permitted to instruct non–mandatory courses—she’s teaching two this semester. 

In the first few moments of her interview with Loury, Wax says, “I’ve been canceled so much that I feel like I’ve gone through the tunnel to the other side of cancellation.” She appears to view the students’ organizing as nothing more than a nuisance, the latest push in a campaign that has achieved little progress over the course of a decade. 

Apratim hopes this isn’t true. As a member of the South Asian Law Students Association (SALSA), he’s been working with Penn Law’s affinity organizations to demand action from the University. On Wednesday, Jan. 12, Apratim sent a letter to Dean Ruger and the Faculty Senate Executive Board, which noted that, “Wax’s racist comments have become a semi–annual ritual that receives temporary furor and temporary consequences,” and set forth four demands: that the University begin an investigation into Wax's employment at Penn Law, increase transparency of systems of accountability, create a committee to reform tenure with student input, and reaffirm the law school’s commitment to diversity. 

Attached to the letter were 59 pages of over 2,500 signatures from Penn Law affiliates and non–affiliates. Six days later, Ruger announced that he had initiated the formal process to consider academic sanctions against Wax.

While this is a step in the right direction, Apratim “hoped it would have happened a long time ago.” It’s also not clear what this potential action means. Ruger’s statement commits to compiling the complaints—notices of misconduct filed by students and staff over the years—against Wax to determine the level of punishment, which could be “major” or “minor.” According to Insider, the complaints against Wax allege “a pattern of discriminatory language and favoritism toward white students that put students of color at a disadvantage when they enter the legal industry.” Aside from descriptions of some complaints, which are hidden behind a paywall, the accountability process seems murky and the timeline unclear, even to Wax. 

She tells Loury on his show, “They’re still trying to fire me at my law school, but of course they have this … hideous [Diversity, Equity, and Inclusion] bureaucracy. I’m not terribly worried about it.”

Alexa Salas (C '17, L '23), a second–year law student, recognizes that communication and transparency are critical to the success of the movement to fire Wax. Alexa attended Penn as an undergrad as well—she returned to study at the law school because of the tight–knit relationships she formed with Philadelphia community members and organizations and her dream of pursuing public interest law. She hardly expected to be so involved in this fight, but it’s just her nature.

“I think one of our responsibilities as law students is not just to learn the law, but to also be able to scrutinize and critique legal institutions, how law and policy are made, who gets to make those choices, and who holds power,” Alexa says.  

As the co–president of the Latinx Law Students Association (LALSA) and a member of the Penn Law Office of Equity & Inclusion’s (OEI) Student Advisory Board, she’s been working to build a coalition of underrepresented voices at the law school and enter conversations directly with administrators. Both Apratim and Alexa are grateful for the supportive environment they’ve cultivated between law student organizations, the result of nearly a decade of advocacy. 

“We've really built on the labor of our predecessors, of former law students and alumni, who have allowed us to even get to this point,” Alexa says.

But is it actually working?

Apratim and Alexa have both met with Penn Law Administrators: Apratim as a member of SALSA, and Alexa in her role on the OEI’s Student Advisory Board, but the closed–door conversations haven’t provided a ton of clarity. When a statement from Ruger hits the Penn Law website, the organizers learn the news at the same time as everyone else. Many times throughout the process, Alexa wondered if she was even talking to the right people.

“We may be able to share our frustration, but how much weight do those statements actually carry in that context, if the people to which we are speaking are not in a position to directly take action, to mitigate or to repair the harm that has occurred?” Alexa says, of her communication with the Office of Equity & Inclusion. She now understands that the sanctions decision "lies with the University's Faculty Senate and the Dean of the law school."

Still grappling with the University’s “shroud of confidentiality” surrounding accountability measures, law students focus their efforts on two areas of reform: rooting out racism that permeates white–dominated spaces like Penn Law, and tenure, which has protected Wax and other controversial academics before her. 

In 2019, Penn Law established the Office of Equity & Inclusion with the goal of “expanding access, increasing diversity, broadening educational opportunities, and fostering inclusion and community engagement,” according to an email statement. A year later, U.S. News & World Report included Penn Law in a list of “46 Racially and Ethnically Diverse Law Schools” with 33.4% minority students, ranked below Stanford University, Yale University, and Cornell University. As of October 2021, the number has improved slightly to about 36% minority students, and around 23% faculty members are people of color. Penn Law publicizes the student racial breakdown, including a category for “Nonresident Alien,” but does not currently provide public statistics about the specific racial/ethnic membership of faculty. It's working on a platform to publish these numbers to be released later this year.

In January 2022, when Wax’s comments about Asian immigration sparked national outcry, members of the Philadelphia community denounced Wax, connecting her remarks to a larger trend of anti–Asian violence during the COVID–19 pandemic. In a Jan. 7 statement signed by 16 out of 17 Philadelphia City Council members, Councilmember David Oh wrote, “The sweeping, racially–biased assumptions espoused by Professor Wax are not only intellectually dishonest, but feed into dangerous trends of rising animosity and scapegoating of Asian Americans.”

Oh and Apratim consider Wax’s remarks harmful for two reasons: They’re blatantly racist, but they also come from someone employed by a prestigious university, a beacon of pioneering thought and correctness. In a Jan. 10 statement, the Penn Law Asian Pacific American Law Students Association (APALSA) and SALSA summarized, “[Wax]’s statements add to this anti–Asian sentiment and bring it home to Penn Carey Law.”

“[Penn is] one of the most prestigious law schools in this country, and [they] have espoused very high ideals,” Oh says. “You have to hold people to those standards, and we are challenging you to live up to what you say.”

Apratim explains that Wax’s commentary is especially damaging because of her position of power in the classroom. In a Medium article responding to comments from a fellow Penn Law student and prominent conservative academic, Apratim writes, “[the fact that] she finds immigrants and Asians (like myself) inferior, combined with her elevated platform as a named professor at a prestigious Ivy League law school, means that those of us who do debate her will do so without a platform and without her respect.”

Student organizers agree that Penn Law can be doing much more to support students of color financially and systematically. In the APALSA and SALSA statement, the groups advocate for “increased financial and institutional support for diverse and first–generation law students,” as well as diversity trainings and workshops, more diverse hiring practices, and transparency in systems that impact student and faculty diversity, like tenure.

Alexa adds that Penn Law needs an accessible system to report incidents of discrimination from faculty members and administrators or other Penn Law students. If one exists already, she’s not aware of it, and the Office of Equity & Inclusion did not respond to a request for comment about an incident reporting system. 

“Not every instance has to rise to the level of sanctions from the University, but there should be other mitigation, like resources and processes in place to effectively address these kinds of incidents,” Alexa says. 

The University’s response to Wax’s remarks is made more complicated by a long–standing tenet of academic freedom: tenure. According to Penn’s Faculty Handbook, tenure is “the preeminent means of fostering and protecting academic freedom of the faculty in teaching and in scholarly inquiry.” It’s a practice that protects scholars’ speech by granting a permanent position at their institution, as long as they remain fit to instruct. 

Alexa says that tenure is a huge privilege—it means that Wax is “institutionally insulated” and that she can’t face administrative repercussions, even for statements widely condemned as racist. She argues that a history of blatant discrimination is clear cause for Wax’s tenure to be revoked, but professor Anil Kalhan explains that “the line might not be that easy to draw.”

Kalhan is a tenured professor of Law at Drexel University and has been an affiliated faculty member at the University of Pennsylvania South Asia Center since 2008. He also serves on the American Association of University Professors Committee A on Academic Freedom and Tenure (Committee A), the body that established modern interpretations of tenure with the 1940 Statement of Principles on Academic Freedom and Tenure. 

The statement, a sort of scholarly First Amendment, breaks down academic freedom into three protected principles: freedom of research, freedom of relevant discussion in the classroom, and freedom of discussion outside of the classroom. Elaborating on the last point, Kalhan writes, "when faculty members speak or write as citizens, academic freedom provides that they should be free from institutional censorship or discipline." Wax's tenure will most likely not be revoked for extramural racist statements alone, but her words outside of the classroom can potentially serve as evidence to prove that she is unfit to teach. 

Kalhan remarks that procedurally, “it would be really difficult to take the statement by itself and say that [it] determines whether the person is an effective teacher or scholar.” It’s rare, he says, that the content of a statement, or even multiple statements, is enough to dismiss a tenured faculty member. However, according to the complaints obtained by Insider, Wax's statements in and out of the classroom make students feel uncomfortable or discriminated against, which may indicate that she is unable to instruct fairly and respectfully.

Kalhan recalls a 2017 situation at Drexel University, when tenured Political Science professor George Ciccariello–Maher was scrutinized for making multiple controversial remarks about whites in America. “All I want for Christmas is white genocide,” Ciccariello–Maher tweeted. While the university suspended Ciccariello–Maher for his statements, it did not fire him or revoke his tenure. Kalhan attributes this to testimony from Ciccariello–Maher’s students, who “only had positive things to say about him.” Despite this, Ciccariello-Maher resigned after receiving “death threats and threats of violence directed against me and my family.”

Tenure is not designed to be easily revoked. “The burden is not on the faculty member to prove that they have professional competence in order to protect academic freedom,” Kalhan says. Rather, the university must compile testimony that speaks to the faculty member’s teaching ability. “That sheds a light on why the Penn administration appears to be proceeding … very carefully.”

As the battle over Wax’s remarks draws on, students grow weary. The trials people of color already face studying at a prestigious law school are amplified by the labor of communicating with administrators, writing articles, poring over tenure research, and coalition–building. 

“A lot of people [not just Alexa and I] are basically taking on an entire class worth of work and aren't getting anything substantial out of [the movement],” Apratim says. 

Alexa adds that the process is definitely “labor intensive,” but she “feels like now we're finally at the cusp of real change.” 

The students are currently working on an agenda for a meeting with Penn Law administration on Wednesday, Feb. 9, where they plan to emphasize the demands of their petition, especially reforming tenure and reinforcing support for minority students harmed by Wax’s words. Apratim notes that while students have received some communication from Ruger throughout the movement, the sanctions process is still clouded with mystery—it’s in the University’s hands now, not the law school’s. 

Perhaps the only University affiliate who clearly communicates is Wax herself, to the disdain of Penn Law students. As she explains the students’ complaints to Loury, Wax smiles. “This is a fireable offense?” she says. “Does that not sound preposterous?”