Trustees | Free Speech

Free Speech Is Under Threat at Top Law Schools 

NEWSWEEK   |  April 14, 2023 by Michael B. Poliakoff and Paul S. Levy

Even in a year of disgraceful coast-to-coast shout-downs, stretching from Yale Law School to Stanford Law School, the persecution of Professor Amy Wax stands out. It should summon the legal profession and American higher education to action. If we fail to reassert the core values of academic freedom and plain, simple fairness, the consequences—especially for the practice of law—are likely to be extreme. Freedom of speech is a meaningless abstraction without a commitment to protect the speaker.

One can only hope that the University of Pennsylvania’s (Penn) new president, Liz Magill, formerly the dean of Stanford Law, will bring with her some solid good sense and a commitment to free speech, and terminate the Star Chamber proceedings against Professor Amy Wax.

In 2018, one of us (Paul Levy) resigned from the Board of Overseers of the University of Pennsylvania’s Carey Law School in protest of Professor Wax’s mistreatment. Penn has utterly betrayed the principles that once made it a great institution, and we now see the great peril this case holds not only for Penn, but for legal education throughout the country.

For over five years, Amy Wax, the Robert Mundheim Professor of Law at Penn Law School, has been the object of unremitting and steadily increasing persecution from the school’s administration. She wrote of the advantages of the bourgeois values of hard work, education, and marriage. She questioned race-based admissions and the academic readiness for Penn Law of such admits. (The dean of the law school, Theodore Ruger, insisted that Professor Wax was wrong, but also that he could not produce the relevant data, since Penn does not collect it.)

Amy Wax asked the sociopolitical questions that liberals most fear, and even her statements that many find objectionable deserve data-based discussion, not punishment. In his resignation letter, Paul Levy wrote, “Preventing Wax from teaching first-year students doesn’t right academic or social wrongs. Rather, you are suppressing what is crucial to the liberal educational project: open, robust and critical debate over differing views of important social issues.”

Until the summer of 2017, Penn Law deemed Wax a superb teacher. Since her career at Penn began, she has won two teaching awards, including the 2015 Lindback Award, which only five Penn Law professors have received in the past 23 years. She has argued 15 cases before the Supreme Court. But Penn’s answer to her crime of forbidden speech was nonetheless swift and stern.

As early as 2019, Dean Ruger had announced his desire to see Wax gone, using language one ordinarily does not associate with a law school dean: “Her presence here…makes me angry, it makes me pissed off” and that “she still works here…sucks.” A year ago, Dean Ruger wrote, “That Wax’s speech may be protected does not permit this Law School to ignore the real harms such speech causes.” In other words, he recognizes the right to free speech in the abstract but intends to punish the reality of it. That is a long way down from Oliver Wendell Holmes’s 1929 dissent in United States v. Schwimmer, calling for “freedom for the thought that we hate.” A Penn tribunal is now considering possible sanctions up to and including termination, Wax’s tenure notwithstanding. That process is moving rapidly forward.

In the past several months, four of America’s most prestigious law schools have shown an inability to tolerate opinions that transgress campus orthodoxies on race and gender. At a Federalist Society event at Yale University in March 2022, Kristen Waggoner was barely able to conduct her panel discussion of civil liberties for all the stomping and shouting. That same month, at the University of California College of the Law–San Francisco (UC Law SF), Ilya Shapiro’s event was completely silenced by the protesters. In January 2022, Georgetown University placed Shapiro on leave and ground through weeks of investigation into his tweet suggesting that President Joe Biden‘s focus on appointing a black woman to the Supreme Court was myopic. In March 2021, Georgetown Law’s dean, William Treanor, had summarily fired adjunct professor Sandra Sellers for the “abhorrent” act of raising concern that her black students were not doing well. Now, one year after the Yale, Georgetown, and UC Law SF outrages, Stanford law students succeeded in shouting down federal judge Stuart Kyle Duncan. The signs of a cancer spreading through elite law schools are unmistakable.

Neither Yale nor UC Law SF nor Stanford punished any of their noisy social-justice-warrior law students. A growing list of judges is joining Elizabeth Branch and James Ho in their peremptory dismissal of applications for clerkships from such institutions. After all, an attorney who behaved in court as these students behaved in school would likely leave the courtroom in handcuffs.

But the problem of debased legal education remains. Expect more outrages and more young lawyers intellectually and emotionally unfit for the profession if we do not raise our voices to demand an end to the persecution of Amy Wax. It is a credit to Stanford’s President Marc Tessier-Lavigne that he spoke out forcefully against the law students’ outrageous behavior. Now it falls to Penn’s president, in the wake of the disgrace of the Stanford Law School she once led, to oppose Penn Law School’s mistreatment of Amy Wax and protect the freedom of expression that too many other institutions have miserably failed to guard.

This article originally appeared in Newsweek on April 14, 2023.


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