Penn U May Fire Professor For Possibly True Claims; Factual-Type Statements Should Be Refuted, Not Punished
Penn University May Fire Professor
WASHINGTON, D.C. (June 19, 2022) – Pennsylvania University [Penn] is about to discipline and possibly fire a tenured law professor for making statements of facts which may even be true without attempting to refute them, much less show that they are so clearly false and outrageous that merely uttering them, especially in off-campus settings, would warrant punishment, says public interest law professor John Banzhaf, who has won many such battles.
The action is even more questionable here because Penn has published a legally binding promise that all professors, and especially those who have earned the guarantees of tenure, will enjoy freedom of speech and academic freedom, and has publicly reiterated several times that Professor of Law Amy Wax's controversial assertions are fully protected by those published promises.
Thus her statements, because they are factual in nature and based upon easily ascertainable and indisputable data, are ones which should be subject to objective discussion and refutation in the spirit of academic freedom and open debate. Penn should not simply label them "racist" and then use them as a basis for severe punishment. he suggests.
In other words, labeling something as "racist," even if it is in fact racist according to most law students, doesn't necessarily mean that it is incorrect, argues Banzhaf.
For example, in one statement which has been cited, Wax said in a podcast about affirmative action that "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 of my required first-year course." If even plausible, this would seem to be relevant to that academic debate or discussion because it would suggest a problem with utilizing affirmative action in admission to law schools.
Indeed, since following that statement, Wax questioned "What are we supposed to do about that,” it might suggest that she was concerned about the apparently poor showing among Black students and what can be done to improve it; and not seeking to denigrate, insult, or scare them, suggests Banzhaf.
Penn could easily refute this statement if it's factually incorrect, and especially if it is so clearly wrong (rather than simply being a small misstatement or slight exaggeration) as to warrant punishment, since it has in its computer the grades Wax has assigned during her time there.
Moreover, it knows - or should be able to easily ascertain - which of those students are African American, and therefore the percentage of Black law students which received grades in the top quarter and top half of classes.
Yet Penn apparently has refused - although it clearly has the ability - to refute Wax's factual statement, and thereby at least begin to justify some punishment. Indeed, this strange silence suggests that she might have been correct in pointing out a possible problem, says Prof Banzhaf.
Moreover, Penn can also easily refute Wax's statement without naming or otherwise embarrassing any students, much less violating their privacy or breaking any laws.
For example, Penn could simply authoritatively assert that "at least # African American students have been in the top quarter of Wax's classes, and in the top half in at least X percentage of her classes, according to our records."
Truth Is A Defense
Most fair minded people would probably agree that, as the old legal maxim says, "truth is a defense," and no professor should be punished for making a true statement which is relevant to a valid academic debate or discussion - such at the one involved here - even if some students might find it offensive and thus term it "racist."
For example, although many African Americans might find it embarrassing or insulting, it is hardly racist to say that Blacks make up a disproportionately large percentage of our prison population, or that their scores on many standardized tests tend to be lower than the scores of comparable Whites or Asians - any more than it it sexist to point out that females typically have less upper body strength than males, homophobic to note that the AIDS epidemic disproportionately affected males who were homosexual as compared with males who were heterosexual, or transphobic to express concern that the suicide rate among transgender young people is higher than among young people who are not transgender.
Even if Wax's claim was a significant exaggeration and/or even downright misleading, it should be met with refutation, argument, and perhaps even some criticism, but not serious punishment, argues Banzhaf.
Indeed, as Supreme Court Justice Louis Brandeis famously wrote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
Thus, before seeking to punish her, those seeking this drastic remedy should have to show not only that many or even most scholars would disagree with the alleged conclusion because it is so clearly factually incorrect, but that it is so far from the truth that it can and must be rejected out of hand with no debate or examination or any proof, and sufficient to subject her to severe academic discipline based solely upon Penn labeling it “racist.”
But labeling is not a valid or meaningful argument.
Wax may also be subject to serious punishment for saying, in a discussion about whether America's immigration policy should ever consider race, "that our country will be better off with more whites and fewer nonwhites.”
But whether or not our country would "be better off" if our immigration policy favored Caucasians over other races or ethnic groups - as an empirical- or at least empirical-sounding assertion - should be capable of rational analysis based upon statistical and other reliable evidence, not name calling ("racist") or isolated anecdotal examples of non-Caucasian immigrants who have been successful.
For example, the "big data" type of analysis, popularized by Professor Raj Chetty of Harvard, has identified factors which have contributed to economic success and advancement; including some factors which were not previously recognized, and debunking some which were thought by many to be good indicators.
Using these same types of "long" data such as census information, tax returns, etc., it should be possible to determine if there are any significant differences in certain metrics generally recognized as markers of individual success (e.g., salary, social status, family structure, low arrest rates, books published, offices held, etc.) between lawful immigrants (which is what Wax was discussing) based upon their race and/or ethnicity.
Moreover, because of the types of statistical analysis he uses, it is probably possible to infer if not prove not only correlation but - more importantly - causation.
If there are no statistically significant differences between how well Caucasian and non-Caucasian groups of lawful immigrants do, especially collectively in terms of our country being “better off” (e.g., amount of taxes paid, number of workers hired or employed, number of patented inventions, etc.), Wax's hypothesis would be weakened if not disproved.
However, if tax records, crime statistics, businesses started, workers hired, patents issued, etc, seem to show that Caucasian legal immigrants do perform somewhat better (making the U.S. "better off"), it would tend to support her empirical suggestion, although it would obviously not address related issues such as whether providing some preferences for Caucasian immigrants would be fair, politically acceptable, workable, etc.
Thus, it would seem that, if it wishes to punish Wax, the burden should be on Penn to prove, using these or other techniques, that Wax's statement is so clearly incorrect that it could possibly justify dismissal.
In dealing with statements which at the time are controversial and possibly insulting, history shows that some views which were once regarded as unassailable have subsequently been proven to be clearly untrue.
For example, the U.S. Supreme Court once said that “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it” for the practice of law, without the need for any citation.
Similarly, it was once widely believed, by both males and females, that it would be dangerous if not impossible for women to run a full-length marathon, or even play full-court basketball, as they clearly do today.
Moreover, an empirical prediction ("our country will be better off"), as compared to an assertion of already established facts (about Black students in the top half of her classes), is especially difficult to disprove, so those like Wax who advance such ideas and make such predictions should be given additional leeway, argues Banzhaf.
Even if, as her law school claimed, her theory is “repugnant” to the “core values . . . of Penn,” that doesn’t mean that it’s necessarily so incorrect that it should never be uttered, even away from Penn. This is especially true since the so-called core values of many universities for years permitted them to discriminate in admission and hiring against Jews, Blacks, and women, notes Banzhaf.
If Penn disagrees with a professor, they should first have to prove her wrong, not simply label what she said as “racist,” and assume that this labeling must end all argument and provide a legally valid basis for punishment, he says.