Joe and Elie react to the news that UPenn Law School’s Amy Wax has stepped up her efforts to be noticed by right-wing media by appearing at a “nationalism” conference and explicitly stating, that America would be “better off with more whites and fewer nonwhites.” Who is this Amy Wax person, and why does she still have a job at this point? The answer is a toxic blend of tenure and cowardice.
Above the Law – Thinking Like a Lawyer
Academia Means Never Having To Say, ‘I Got Fired’
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. And with me, actually not physically with me, but with me in spirit, is Elie Mystal.
Elie Mystal: It’s so hot.
Joe Patrice: We are in the midst of something the heat wave, though we haven’t even hit the peak of it, I gather on Saturday is the peak of it for us.
Elie Mystal: I mean look, don’t get me wrong, I like summer, I don’t mind being hot. My people are from the islands, we can deal with this, but when you have to deal with it at work, see my way of handling the heat is just to remove clothing until I am comfortable, but especially in the MeToo era, you can’t do that at work.
Arguably, you couldn’t do that at work even before the MeToo era.
Joe Patrice: It’s not an argument.
Elie Mystal: So I’m all here in a shirt and like pants, it’s just Jesus.
Joe Patrice: Yeah, it’s hot. I mean there’s no getting around that. It’s going to get up to a heat index of like 110 in a few hours. So that’s a thing to look forward to, yeah.
Elie Mystal: So that’s not what I’m pissed off about today.
Joe Patrice: Oh yeah, what else?
Elie Mystal: I mean I am pissed off about the heat today, but that’s not directly what I’m pissed off about today.
Joe Patrice: Go for it.
Elie Mystal: So, can somebody explain to me why it’s a story now that Donald Trump is a racist, because I don’t know if you’ve been paying attention since 2011, when he started the birther crap against Barack Obama or 2015 when he came down an escalator and called Mexicans rapists.
But like this current explosion of racism just isn’t keeping with all of the other explosions of racism that Trump has committed over the course of his entire public life going all the way back to when he called for the murder of the Central Park Five who later, we now call the Exonerated Five, right.
So we’ve always known that Trump is a racist. Everybody’s been paying attention knows that Trump is racist, everybody who is willing to tell the truth has said that Trump is a racist. Why is it a story now, today, this week, this month that Trump is racist?
You’re white Joe, can you explain this to me? Can you explain why this is a thing all of a sudden?
Joe Patrice: No, I mean it’s not a thing all of a sudden. I think it’s a thing that the media can put on TV now. They have a hook and so they’ll do it. As they will, every time it happens. I mean they did say all these things the previous incidents and then they move on and then when there’s another opportunity to generate some attention and ratings by focusing on it, they’ll do that again.
Elie Mystal: So the media just keeps kind of rediscovering that Trump is racist.
Joe Patrice: Yeah, or repackaging it as a way of — I mean you ostensibly work in journalism. I mean you’re familiar with the concept of newsjacking, you find an event that allows you to make the point that you’ve made before. It’s an easy way to generate some attention as people are focused on the new event and then they can use that to look at your previous coverage and that’s just how it goes, and that’s certainly how this seems to be playing out.
Elie Mystal: I don’t feel like that’s what’s happening right now. I feel like there are a whole bunch of people who — it’s like a George Conway, Kellyanne Conway assessment, famous lawyer, architect of a lot of the racist policies that has allowed people like Donald Trump to flourish including especially voter suppression.
He does this whole, most read article in The Washington Post. Oh, I now realized that Trump is a racist. Really? Now George, today, you just figured that out? I mean like this —
Joe Patrice: That’s not true.
Elie Mystal: The sense of discovery people are having about this, I guess is what’s really bothering.
Joe Patrice: But like that’s actually a good example of how that’s not true, like he’s — if you’ve been following him on Twitter, he’s been saying these things for the last couple of years.
Elie Mystal: No.
Joe Patrice: He has just found a new opportunity to get a bigger splash in a bigger paper, but he’s been kind of viciously drawing these Trumps and awful inveterate racist lines for a couple of years now and maybe he just hasn’t gotten his opportunity to get as much play.
But they’re doing it now. Everybody’s just saying the same thing they always know.
Elie Mystal: No, his commentary in the Washington Post explicitly titled ‘George Conway: Trump is a racist President’.
And then the whole first 1, 2, 3, 4, 5 paragraphs are his personal journey to understanding that Trump was actually a racist that he only fully completed when he called for the squad to go back to where they came from. That was the inciting incident for George Conway finally being able to admit that Trump was racist.
Joe Patrice: Yeah I mean you can either believe that the five paragraphs that he wrote most recently to please an editor from the Washington Post or what he’s been saying all along.
Now, I’m with you that I don’t necessarily view the fact that he’s made these loud complaints over the last couple of years as some sort of exonerating moment that makes him like a great guy necessarily or even a bad like — it doesn’t change my sense of him one way or the other.
But I think it is fair to say, he’s been on this train whether people have been noticing it or not.
Elie Mystal: You know what I think Joe?
Joe Patrice: Yeah.
Elie Mystal: I think George Conway missed the call.
Joe Patrice: Okay. Well alright. See now this is so much less fun when we’re forcing the issue every time. But you raise a good point, which is missing calls is bad, and if you’re missing calls, if you’re spread too thin, interruptions kill your productivity, but clients demand a quick response, the US based professional receptionists at Smith.ai help law firms screen new clients and schedule appointments by phone and website chat. Plus, Smith.ai integrates with your software, including Clio and LawPay. Plans start at just $60 per month. Get a free trial at Smith.ai.
Elie Mystal: Okay, with that out of the way I want to talk this week Joe about something that I view as a personal failure of mine, a professional failure of this website, Above the Law, a professional failure of this entire company.
Joe Patrice: Okay.
Elie Mystal: And that is the fact that despite our existence, Amy Wax still has a job.
Joe Patrice: Tenure is a powerful thing.
Elie Mystal: Please explain to our listeners why Amy Wax has a job and why she absolutely should not.
Joe Patrice: Okay. So Amy Wax is a Law Professor at UPenn, which is a well-regarded law school and she –
Elie Mystal: We ranked UPenn number one, one year in our law school rankings.
Joe Patrice: In our rankings, that is absolutely true.
Elie Mystal: I am telling you, next year what we need is a whole, like we need an actual data point that just says does your law school employ Amy Wax? If so, minus 10 points on the rankings.
Joe Patrice: Right. So she is a law professor and for the last several years what she’s been really trying to do is — it’s — there are people who are enraged by her. I’m not necessarily one of them. I view her as more of a joke. She’s a this kind of desperate law professor who’s hoping to get attention and so she acts out in a temper tantrum sort of way by saying more and more outrageous commentary, mostly a jumbled together of racist stereotypes; whether she’s complaining that black students at law schools can’t do — have never – had gotten good grades or whether she’s going to say that Christine Blasey Ford should understand her place and hold her tongue or whether she’s saying that America was better off when white people had more power.
Like she’s been writing these things and it’s a snowball of increasingly outrageous statements and she does it.
Elie Mystal: Can I just emphasize for our listeners?
Joe Patrice: Yeah.
Elie Mystal: You didn’t make any of those statements up.
Joe Patrice: No, none of those are off top of my head, those are all things she said.
Elie Mystal: You kind of sensed that you were kind of making up — what would be an example of a ridiculous thing a racist would say? No, no, no listeners, Joe just quoted Amy Wax three times.
Joe Patrice: Yes, so she does these things in an effort to get attention. Usually — in many ways she gets her attention, she draws strengths from her critics who then say oh she’s so awful and then she turns that into there is PC culture run amok and they’re trying to silence me and thought police and blah, blah, blah.
Every time this happens, she gets a little bit more attention from the media. She then, the school gets some pushback, the school then caves because they – A, she has tenure and B, she’s kind of hitting the academic freedom hot-button that she suggests that people are trying to silence her, which is obviously something that in academia, they take very seriously not doing that.
So that’s kind of the story with Amy wax, so.
Elie Mystal: Well that’s the story of what she’s done. I don’t think that’s the story of why she’s still there, which is really what I want to focus on because you wrote an article that is available online and by the time you guys are listening and I thought it appropriately because we’ve written lots of articles, every time Amy Wax does something kind of crazy and racist and sexist, we report on it because as you were saying in our opening Joe, oh we like clicks, we like the money.
So we are going to write about it, whatever she says something. But I thought your article this week really appropriately returned the focus on to her employer, which kind of allows this to happen.
Joe Patrice: Right. And this is a good example going back to our opening segment, of a situation where I’ve been saying this for the last couple of years and every time a new incident comes up I have to, I’m forced to repeat it. And it seems like it’s new, but I really have been saying it for a while, which is well to quickly point out, the new thing that happened is she went to a conference that was called Nationalist Conservatives or something I don’t know.
She went to this conference and spoke on a panel.
Elie Mystal: Conservative Nationalist, that’s the official title that Tucker Carlson came up to avoid saying White Nationalist, which is what he was actually doing.
Joe Patrice: And she appeared on a panel where she said that what America needs to do is get more, encourage more White people to come to the country rather than non-Whites, because non-Whites are too loud and create garbage.
Elie Mystal: Literally, literally she said, she said, immigrants, non-white immigrants are too loud and litter too much.
Joe Patrice: Yes, so anyway. This is the new thing, and one, a point that I’ve made many times throughout this whole saga is that one of the places where I think a lot of her critics falter is given that she draws a lot of power from suggesting that there’s thought police out to get her and everything.
The answer is it’s not that she should be fired for holding the wrong views. She should be removed from her job, because she’s just a bad academic.
The issue is to my mind, that you can’t necessarily say a professor has to leave because they, their conclusions aren’t what you want. But what you can do is look at what she’s produced. Over the last several years, what she’s produced is entirely evidence free, statistics free, no backup or footnoting for anything she does.
She just goes on to the media and makes unsubstantiated claims about all sorts of sociological developments when then tries to cobble together in half coherent sentences, reasons why white people are better than everybody else. She is even — this is by the way, I’m going to say another one of those quotes, that you’re going to say that can’t really be a quote, and it’s a quote.
When asked about white supremacy, she once said, “Well, I’m one of those people who doesn’t shrink away from the word superior.” That’s the thing she said. So she goes on, and says these things. They’re evidence free and that’s really where I think the problem is, because she utilizes her reputation and the goodwill of the University of Pennsylvania Law School to give the imprimatur of authority to the things she’s saying, but the truth is she has no backing for what she’s saying. She is not doing any of the legwork, she is not engaging with any of the studies, she has not got any data that she’s working through.
She just says a bunch of anecdotes and random racist talking points and turns them into conclusions and that I think is where a school should, even though someone is tenured, be in a position to say, we think we need to part ways. Because when the school’s reputation is being utilized barring any connection to any actual academic work, then that’s damaging the school and that’s a reason why for cause somebody should leave, not because of what she believes but because of her methodology and how she tries to back it up.
It’s one of those things where I’m not a huge fan of say, what’s-his-name, Sander —
Elie Mystal: Richard Sander.
Joe Patrice: Yeah, out in UCLA.
Elie Mystal: I’m so glad you brought this out, yeah.
Joe Patrice: But that guy, to his credit, cobbles together charts. There are things that you can debunk and you can argue and say well this is bad data for this reason and that reason, but the guy is trying.
This is the problem with Amy Wax. She doesn’t do any of that, she just goes on TV and starts talking about how she’s pretty confident that no black students ever gotten a passing grade in law school. I don’t know where this comes from, it’s just a thing she says.
Elie Mystal: We have an industry for people who want to make unsubstantiated claims about race and show no evidence for their work, that’s called Fox News, it’s not called Law School. And I’m so glad that you brought up Richard Sander, because he was exactly, he was exactly the white jerk asshole counterpart to what Amy Wax is doing.
I disagree with Richard Sander’s scholarship with every bone of my body as I’m sure the president will, well I have a racist bottom but well I disagree with every bone in my body with what Richard Sander produces under the guise of scholarship. But it’s scholarship.
Joe Patrice: Yeah.
Elie Mystal: I can disagree to Richard Sander because he shows his work. There is substance there, awful disgusting trash substance, but substance nonetheless. And so I don’t and you can you go back through my answer, I do not say that Richard Sander should be fired from UCLA. I think he has no business teaching 1L.
Joe Patrice: Right.
Elie Mystal: I think he has absolutely no business teaching a class where people are forced to take him without elective choice, but being a part of law school and being part of that community, and peddling his trash views is entirely appropriate in that academic setting.
Amy Wax as you’re pointing out so correctly, does none of that. You can’t actually disagree with the substance of her argument, because there is no substance. It’s just — if she wants to go on out to the White Nationalist Conference and show her study that shows by decibel level, non-white people have louder vocal capacities, that would be interesting. I would still think that her conclusions were trash, but like that would be something to start with, but she doesn’t give you that.
She just makes this completely unsupported claim about how loud people are, how much people litter and of course, all to the general point, that somehow White culture is superior to all other cultures.
Joe Patrice: And I mean I should be in all fairness, it’s not as though she hasn’t produced scholarship in her past, obviously, whether it’s race-based or dealing with her actual legal career. I mean there’s a reason she got tenure in the first place. She understands how these things operate and is capable putting together things that can be argued perhaps, but she can do that.
But that was a while back and what she’s been up to of late has largely been grandstanding in an effort to draw attention to herself from the gatekeepers of people like Tucker Carlson, because she wants a five-minute hit on some cable show. And that’s the black tar heroin for her at this point, where she just, I need another five minute hit, come on, come on, come on, I’ll say something even more insane, yeah.
Elie Mystal: So we could outline the case for why she should be fired. Let’s talk about why she hasn’t. This is again where I think Penn is complicit in what Wax is allowed to do, because they did try to clip her wings a while back, a couple of years ago, like Richard Sander, they pulled her off of teaching 1Ls, and just – again, since we have a lot of pre-law students here I’ll just go through the rote of explaining this.
The key about teaching 1Ls is that when you are a new law student, when you are a first-year law student, you don’t have elective choice over your classes. You’re just put into whatever section you’re put into, and forced to take whatever professor is teaching constitutional law, torts, crim law, property, whatever professor is teaching that course for your section, you have to take that professor, you have no choice, right.
Joe Patrice: Yeah.
Elie Mystal: And so making, allowing people like Wax, Sander, these people with clearly, kind of racially biased views, teach 1Ls, some of whom might be non-white and might feel like they are not getting a fair shake in that person’s class, is just particularly wrong and law school shouldn’t do it.
At the 2L year and certainly by 3L year, yeah if you want to teach an elective, you can choose. You can, you get to know who Amy Wax is before you take her seminar on white supremacy and the law if that’s your thing, right.
So that’s why I kind of keep focusing on whether or not these people are teaching 1Ls. When Penn pulled Wax off of teaching 1Ls, there was a lot of blowback from Penn donors we’re led to understand. Is that right?
Joe Patrice: Yeah. There was a Board of Trustees member who decided to bail on the school saying, oh you know, you’re hurting her academic freedom yadi, yadi, yada.
Elie Mystal: Amy Wax is a star amongst these particular kinds of people, who believe that the most persecuted group in America right now are white people who want to be racist, right, like in that circle, in that circuit, on that speaking tour, she’s a goddamn star.
Joe Patrice: Yeah.
Elie Mystal: Because she’s willing to say these completely unhinged racist things. So one of the reasons why I feel Penn is afraid of doing what must be done, what needs to be done with Wax is because they’re afraid of the blowback from exactly the kind of racist people who support Amy Wax.
Joe Patrice: Yeah. And I mean look, it’s exactly. There’s some level of that. There’s also — I understand the squishy concern over academic freedom. I do think that there’s a value in an academic setting to protecting folks who may have unpopular views to continue doing their scholarship, but look she’s written extensively but of actual like Law Review articles, like quality non-opinion op-ed page quality articles.
She has written like two in the last five years maybe and with co-authors and you know, yeah, they do touch on these issues, in particular in immigration she has written about where she has some discussion of how low-skill immigration has like affected the job market.
And that’s an argument that you can actually get into and have some discussion about.
Joe Patrice: The dirty little secret is there is an argument to be made for certain immigration controls for the purposes of labor markets and people getting in with certain specialties that are already super-saturated et cetera. But that’s not the argument that’s being had when you write an op-ed with the picture of John Lane and saying, the problem is that the culture has stepped away from where it was when it was a distinctly European culture which are more words that she uses.
Elie Mystal: Yes. There’s something we can do. That’s what I am saying is I feel I can stand on top of William Penn’s frickin head and shout but there is nothing that we can do to get Penn to do the right thing and divest itself of this racist professor.
Joe Patrice: Look the people who can are students and I think they have the – well I guess I should say they’re the only people who have a hope of doing it and I do know that there are students who have been active throughout this process in pushing back and arguing that the school should do right by them, by rejecting kind of this hostile environment.
And this hostile environment that is — it’s not really a trade-off in that, you can have kind of a hostile environment if you’re getting some quality research out of it but when it’s a bunch of book reviews and op-eds, it’s not really helping out and it’s the sort of situation where you can say look, this is not what tenure is about, it’s not about protecting folks who just want to go on TV.
It’s about protecting people who are doing unpopular research and if you want to go back to concentrating on these posts about different sector engagement in the labor market, that’s — and the immigration with the labor market that’s fine, go do that, and keep the editorializing about white people out. But if you aren’t going to do that, then we really don’t think that the protections we afford for academic freedom are really applicable here.
Elie Mystal: Look whatever — I would go with that, that’s fine, whatever it takes.
Joe Patrice: Yeah I just — anyway, it’s a troubling situation and the ways in which I mean the one that I mean I — a particular outrage was when she was talking about how black students at Penn don’t get good grades, which is something that was either a lie in that she should be grading blind and therefore have no knowledge whether or not that’s true.
Elie Mystal: Or violation of privacy rights.
Joe Patrice: Or she did know that sort of thing and lied about it anyway. Like either way, it was a problem and she decided to go off on this and then double down on it and it just — that’s a point where you start getting into whether or not it’s a for-cause violation because that has nothing to do with academic freedom, that has everything to do with – now, you’re just besmirching the reputations of people who go to the school.
And this is where it gets back to the institution itself needs to protect its reputation from an assault because in a lot of ways, she’s just attacking the good name and reputation of the school by continuing to go down these roads.
Again, I don’t agree with her but she’s free to think whatever she thinks and come to the conclusion she can come to that doesn’t mean Penn has to accept her trading on their reputation to give these the kind of the imprimatur of authority.
Elie Mystal: I’m just reminded of the Chris Rock joke where they’re trying to figure out if Kramer from Seinfeld is a racist and Chris Rock quips, what the mother-fu** I have to do? Shoot Medgar Evers? What does Amy Wax has to do? She went to a white nationalism conference and argued that only white people should be allowed in the country. What else does she have to do to get on Penn’s radar?
Joe Patrice: Right and look in her argument, I think it’s key to point out her argument which I do think is an argument that she makes that she’s in a very technical way correct on. She argues that those statements at the conference were not racist because she was not suggesting that there is a biological reason why non-whites aren’t as good as white people in her mind but that there are cultural reasons and so it’s not racist.
The problem is whether you — and that could be technically correct. The problem is, it is still a white supremacist to take, right. We miss — we need to get over kind of the idea that white supremacy is a term that is — that is very narrowly cabinet adjust into clan members and people actively wearing Nazi uniforms because it’s not.
It’s a term that is very literally means if you think that white people are superior to other people or supreme over them, then that’s white supremacy and it can manifest itself in all sorts of ways from very aggressive ways like actual Nazis to more subdued ways like saying we need an immigration policy based around bringing in more white people and fewer non-white people whichever way it is.
If you’re operating under the logic that there is some reason why white people are superior; whether it’s cultural, racial or biological racial or whatever, then that’s white supremacy and we need to kind of both deconstruct and then reconstruct, take away some of the stigma of the term that lets us think that it’s only that far extremes and then reconstruct it to realize that it does cover a lot more ground than we typically ascribe to it when we suggest that white supremacy is this really ultra, very narrowly defined term because it shouldn’t be.
If you’re advocating supremacy, then you’re advocating supremacy and that’s I have — going to have to say from my opinion, looking at these quotes that’s what she’s saying and it’s also what she says when she says, she doesn’t shrink from the word superior.
Elie Mystal: I think that’s a great place to leave it. Joe explains white supremacy to white people, I love it.
Joe Patrice: I mean in fairness, this is an area where I do a good deal of research. So it’s an area that’s kind of fresh for me. So I can, I can be that translator. It’s kind of like a flip on the Luther, the anger translator. I don’t know where I come in, that’s the translator situation but yeah, so that’s what’s going on. It’s been an interesting day all the way around here at Above the Law.
Elie Mystal: Amy Wax will still have a job at the time you hear this podcast, don’t worry.
Joe Patrice: Could well and look, she’s going to be fine no matter what. I’m sure that she will get the coveted TV job she really seems to be hankering for if she were to lose her position at UPenn. But we’ll see.
So, thanks everybody to listening. You should subscribe, you should leave reviews, you should follow on Twitter. He’s @ElieNYC, I am @JosephPatrice. You should read Above the Law, you should follow the other legal podcast of the Legal Talk Network, you should follow The Jabot, which is Kathryn’s legal podcast. She is an occasional guest host for us over here and with all of that, I think we are done and we will come back next week and talk hopefully about something that is much more pleasant.
Elie Mystal: Peace.
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