At the University of Pennsylvania Carey Law School, a rare academic event is taking place: The school is attempting to revoke tenure from an endowed professor. Rarer still is the reason. Cases of professors losing tenure are often due to sexual or financial misconduct, but Amy Wax is facing sanction for racist and sexist statements made publicly and privately.

Wax, a lawyer and neurologist who started her career at the solicitor general’s office under Presidents Reagan, H.W. Bush, and Clinton, has become something of a standard-bearer for the right’s war on wokeness — and a confounding case study in the pitched arguments over academic freedom, tenure, and higher education.

She started making national headlines in 2017, when, in a column that now seems mild by standards she would later set, she and a co-author bemoaned the breakdown of “bourgeois culture.” Their claim that “all cultures are not equal” in reference to “inner-city blacks” and “some Hispanic immigrants” along with “some working-class whites” sparked a flurry of open letters, responses, and condemnation. But the controversy died down fairly quickly.

Less so with the next case, when comments Wax also made in 2017 were resurfaced, in which she said, “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. I can think of one or two students who scored in the top half of my required first-year course.” This apparently violated Penn’s policies on the confidentiality of student grades, and Ted Ruger, the dean of Penn Law, stripped Wax of her mandatory first-year course. (Ruger also stated her claims were false.) Ruger pointedly endorsed Wax’s academic freedom and explicitly stated the punishment was for breach of student confidentiality.

In 2019, at the inaugural National Conservatism Conference, Wax argued for what she called “cultural distance nationalism” when it came to immigration policy. She argued that “embracing cultural distance, cultural distance nationalism, means in effect taking the position that our country will be better off with more whites and fewer non-whites.” There was again a furor, which again died down with no further punishment.

Finally, in late 2021 and early 2022, Wax made a series of comments about Asians, including that we ought to accept fewer as immigrants because they vote Democratic. She summed up her own views:

We can speculate (and, yes, generalize) about Asians’ desire to please the elite, single-minded focus on self-advancement, conformity and obsequiousness, lack of deep post-Enlightenment conviction, timidity toward centralized authority (however unreasoned), indifference to liberty, lack of thoughtful and audacious individualism, and excessive tolerance for bossy, mindless social engineering.

That final series of remarks seems to have been what pushed Ruger toward the extremely rare step of seeking major sanctions against a tenured professor, an onerous process that requires the faculty senate — a governing body made up of full-time faculty — to convene a five-member board to review charges against Wax that could end with suspension or termination.

The law school also hired a law firm, which investigated Wax and interviewed past students and co-workers. That process unearthed complaints about in-classroom and workplace conduct. Some of these include:

• Telling a Black student “that she had only become a double Ivy ‘because of affirmative action.’”
• “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.’”
• Telling a student “invited to her home, that ‘Hispanic people don’t seem to mind…liv[ing] somewhere where people are loud.’”
• “Stating in class that people of color needed to stop acting entitled to remedies, to stop getting pregnant, to get better jobs, and to be more focused on reciprocity.”
• “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American’ adding, ‘it’s a good thing, trust me.’”

Wax has broadly denied the allegations of students and co-workers, and specifically denied a handful, including the “double Ivy” remark. (When reached by phone, Wax declined to comment for this article.) At least five students made allegations on the record, and others gave their names in an earlier internal report. Wax, who has been receiving treatments for cancer, has sought a delay in her board hearing.

Her case has become a cause célèbre among conservatives, who view her as a victim of hypocritical “woke” administrators. A recent Washington Free Beacon story concedes Wax is an “intellectual bomb-thrower,” but warns that similar tactics, “if successful, are likely to be employed against other tenured dissidents.” Many outlets have similarly framed Wax’s case as a preview of an oncoming suppression of conservative dissidents at universities.

Wax is one professor at one law school, but her case is a bizarre and frustrating subplot in the larger story of higher education and free speech — a narrative where, on the one hand, broad protections for teachers and professors are gutted in conservative states, but where, on the other, those same free speech principles being targeted are invoked to shield one of the right’s more distinguished, and offensive, voices.

What tenure protects

Where it is still in full force, tenure grants extraordinarily wide latitude to professors for political views and extramural speech.

One tenured Georgetown professor who said Republican senators deserved “miserable deaths,” and suggested “we castrate their corpses and feed them to swine,” only received a temporary and mutually agreed-upon research leave.

A Portland State professor suggested re-instituting colonial rule, and said that Belgium should apologize to the Congo for “not colonizing the King’s estates sooner,” “ending colonial rule,” and “not arresting or killing Patrice Lumumba sooner.” He was investigated but faced no punishment.

Arthur Butz, a tenured professor at Northwestern University, has repeatedly denied the Holocaust took place. Tenured professors have made incendiary comments on rape and sex and faced no professional repercussions.

Wax’s case notwithstanding, a broad weakening of tenure protections would almost certainly harm more left-wing professors than right, given the political makeup of university faculty and the number of universities in Republican-led states.

As it happens, the assault on academic freedom in higher ed is proceeding apace, spearheaded by Republican governments in red states. Florida’s Stop WOKE Act, which is already limiting the speech of public school teachers, has a provision banning professors from teaching certain topics, which has only been blocked by court injunction. Texas’s lieutenant governor said ending tenure would be a top priority of the 2023 legislative session. Georgia’s Board of Regents substantially weakened tenure protections for every public university in 2021.

For all the talk on the right of Wax’s persecution by woke administrators, she’s in fact entering year six of bureaucratic due process. The tenure that right-wingers have been so eager to tear down is protecting one of their own.

That said, those protections may only last so long given the weight of the evidence. Even some of Wax’s supporters have wavered in the face of the new findings. Jonathan Zimmerman, a longtime and staunch academic freedom advocate who has written multiple columns defending Wax, wrote last July: “[She] has no right — none — to demean or abuse specific individuals in her professional orbit. Saying affirmative action leads to the admission of unqualified students is one thing; telling a specific student that she was unqualified is another.” (Wax has broadly denied the in-classroom charges, while not responding to each charge specifically.)

The distinction here is key, and may end up obviating the thornier questions of academic freedom, as insulting individual students or co-workers could be deemed an act of workplace misconduct closer to harassment. But some institutions like the Foundation for Individual Rights and Expression (FIRE) — a group dedicated to an expansive definition of free speech that has defended everyone from Mike Pompeo to student groups advocating for Palestinians — have stuck to defending Wax, arguing that because the dean has complained about so many public statements, the classroom conduct complaints are a pretext for her punishment.

This logic seems to lead to unappealing conclusions, though: If a professor who made sexist public statements later sexually harassed a student, would administrator criticism of the former mean he couldn’t be punished for the latter?

As Zimmerman notes, the 1915 Declaration of Principles of the American Association of University Professors specifically states that “in no sense” does “academic freedom impl[y] that individual teachers should be exempt from all restraints as to the matter or manner of their utterances, either within or without the university.” That declaration, considered a foundational document of the modern concept of academic freedom, argued sanctions should be for extraordinary cases and be decided through internal bodies of professors, which is exactly what Wax is facing.

Wax has had friendly appearances on a wide variety of right-wing media, from big names like Tucker Carlson and Charlie Kirk to higher-brow appearances with the Claremont Institute, and her case illustrates a few trends in the conservative movement.

First, the cancel culture script we’ve all become accustomed to has branched out to cover virtually anything. Concepts creep quickly, and now a still-employed professor being criticized for endorsing vast racial stereotypes and allegedly demeaning students in her class is a victim of “woke cancel mobs.”

Wax is also indicative of a widening Overton window on the right toward allowing explicit scientific racism. For however long dog whistles have existed, people like John Derbyshire and Jason Richwine used to be drummed out of National Review and the Heritage Foundation for explicitly bigoted writings. (Richwine, a frequent past co-author of Wax, is now a National Review writer and briefly held a post in the Trump administration. Derbyshire, who appeared with Wax at her recommendation in a university debate, has remained confined to openly racist websites like VDare and Taki Magazine.) This is perhaps the natural highbrow partner to Donald Trump’s lowbrow conservative expansion of acceptable slurs against immigrants.

What Wax has said

Wax frequently pits her opponents’ “hyper-emotional, contradictory, illogical” ideas against her supposed “rationality, evidence, reason, [and] logic.” Given this, it’s remarkable how flimsy and even self-contradicting her arguments are. As the years have gone on, she has deployed increasingly strange and microtargeted anecdotes supporting her thinly sliced racial stereotypes.

She tells us: “If you go into medical schools… these diversity, equity and inclusion initiatives which are poisoning the scientific establishment and the medical establishment, who are the people on the front lines? South Asian women doctors.”

After reading an article about failures in the investigation of the disappearance of Malaysia Airlines Flight 370, Wax said, “I don’t think you would want a team from Malaysia, their investigative team, coming over and taking charge of an accident in which a dear one, a loved one, died of yours.”

Her stereotypes are completely slapdash. While arguing that a propensity for low corruption was a “Northern European and Anglo phenomenon,” she backtracked and added it was also “kind of Teutonic.” She says her travels in the United States are enough evidence for her that immigrants litter more.

After years of assigning staggering importance to whites’ superiority on test scores, Wax recently unveiled the exact opposite complaint about Asians in an interview with Richard Hanania:

I can tell you one thing, a huge influx of Asians into a particular school changes the educational culture. It results in a laser focus on test scores. And I’m all for tests, and I think tests are significant, but a laser focus on test scores, and gaming tests, and doing well on tests, that does shift the culture of a school.

And she doesn’t stop there. She wonders about Asians: “Does the spirit of liberty beat in their breast?” She worries that they lack a “don’t tread on me attitude” and aren’t “non-conformist, in a good way.”

With every new complaint about this or that group, each with its own idiosyncratic justification, Wax seems less like someone with objective standards that might be problematic and closer to a self-appointed racial Goldilocks, deciding this group isn’t respectful enough to authority but that group is overly respectful to authority, that that group’s test scores are too high but this one’s are too low.

This will sound odd given the above quotes, but there’s also a strange cowardice in many of Wax’s appearances. In a recent podcast conversation, Wax and economist Glenn Loury got to talking about Jared Taylor, a prominent white nationalist whom Wax invited to speak to her class on conservative political and legal thought.

When Loury asked, “You do, don’t you, agree to a great extent with Jared Taylor — many of his concerns?” Wax responded, “I am still trying to figure out what Jared Taylor is actually saying. Jared Taylor is someone I know. I socialize with him, I talk with him, and I am trying to nail down what his belief system is.” She mused “whether we even know what Jared Taylor really thinks.” Jared Taylor is a 71-year-old man who has published a self-described “white advocacy” magazine for over 30 years.

Wax hems and haws to Isaac Chotiner in the New Yorker about whether differences are innate — but on a small YouTube channel says, “I would bet there is a genetic component to group differences in cognitive ability.”

Wax vehemently denies being racist, and takes umbrage at that word being used. What’s unclear is what beliefs or attitudes the word “racist” denotes to Wax that she doesn’t hold. If one believes, as she has said she does, that Black people are cognitively deficient to other groups for likely genetic reasons, that Northern European people have an objectively better culture than any other group, that America is better off with fewer Asians, what word ought we use?

She has since said, “I am a race realist.” Race realism is one of a few terms used by those who believe that the broad social categories of race are biologically grounded and can be used to explain differences in individual and even country-level outcome. That is, they are the intellectual descendants of race scientists who would use skull-measuring devices or other pseudoscience to justify policies or outcomes. The ostensible difference from racism is that race realists claim they hold no personal animus to those they view as beneath them.

Maybe the best description of the problems with Wax’s belief system inadvertently comes from her. Describing her problems with “wokeness,” she called it an “an all-encompassing, self-affirming, self-enclosed worldview that has an answer to absolutely everything.”

But listening to two dozen hours of interviews with Wax, this is exactly the mental architecture she has erected. She uses a shifting combination of race, gender, and nationality to explain every nook and cranny of human life, from the litter she sees on the sidewalk to the inadequacy of Malaysian plane crash investigations.

Where this might be headed

Christopher Rufo, the doyen of conservative academic reform and one of Republican Gov. Ron DeSantis’s appointees to the board of New College of Florida, recently published a Google doc of his proposals. They include “Consolidate and restructure the academic departments,” “Require board approval for any new faculty hiring or tenure decisions,” and “Conduct a mandatory board review of all course offerings and require board approval for existing and future courses.”

DeSantis himself is proposing legislation that would give “university Boards of Trustees and presidents the power to call a post-tenure review at any time.” These would all add up to a significant weakening of professors’ ability to teach without fear of being consolidated and restructured out of a job.

Wax, for all of her perceived victimhood, is still safely under those protections, and it’s unclear where her case with Penn Law is headed. She has raised $190,000 via a GoFundMe, and her team of lawyers submitted a memo outlining various objections and seeking a delay in the hearing to accommodate Wax’s ongoing cancer treatment. Dean Ruger has announced he’s stepping down in 2023. Meanwhile, Wax appeared at a private conference at Stanford in November with prominent academics like Tyler Cowen, Steven Pinker, and Jonathan Haidt. Recently, Penn’s student newspaper reported her classes had faced extremely low sign-up rates by students.

The formal process of potentially firing a tenured professor is a difficult and risky process for a university. Marquette University, in one of the only publicly known cases similar to Wax, attempted to revoke tenure from a professor for blog posts that it said violated university guidelines. That professor, John McAdams, sued for breach of contract and eventually won his position back with damages at the Wisconsin Supreme Court.

Wax recently stated on a podcast that if she faced any sanctions from the disciplinary process, she would pursue legal action against the university for breach of contract. She has already counter-filed a grievance against Ruger, which will likely add months to her case.

As her case waits for a resolution, Wax might perhaps use that time to reflect on how things got here. If you rewind to 2017, to that column advising “inner-city blacks” and “Hispanic immigrants” on bourgeois values, Wax told readers: “Go the extra mile for your employer,” “be neighborly,” and “avoid coarse language in public.”

Since then, she’s been in a five-year dispute with her employer, insulted group after group of Americans, and said about Indian immigrants on national television that “their country is a shithole.” Maybe other groups were never the problem.

Jack Meserve is the managing editor of Democracy: A Journal of Ideas.