Amy Wax’s Tenure

What we come away with from the Sun’s sit down with Amy Wax are the implications for the tenure system. Ms. Wax is not accused of any misbehavior or impropriety. It is purely about whether her beliefs and the words with which she articulates them are enough for the school to breach her tenure contract. Let every American who believes in tenure as a protection of free inquiry perk up to her predicament. Especially those who don’t agree with her.The University of Pennsylvania Law School is seeking to sack Ms. Wax — via what it calls a “major sanction” — because it does not like what she says. It’s not surprising. She tells our A.R. Hoffman that women are less knowledgeable than men and Glenn Loury — who both disagrees with what she has said and defends her right to say it — that she can’t recall a black student finishing at the top of her class. She has spoken roughly of fellow Americans. It is no coincidence that this moment of testing for tenure arises at a law school. The tenure contract itself is one of the peaks in the Himalayas of American law, yet has not been tested — on first principles — in quite the way Professor Wax is prepared to try. Tenure took its modern form in 1940, in response to Nazi meddling in the academies. Its charter ordained that the “common good depends upon the free search for truth and its free exposition.” Courts have generally deferred to universities when it comes to tenure. A case from the Court of Appeals for the Second Circuit, Bickerstaff v. Vassar, held that when a college or university denies tenure for a valid, non-discriminatory reason, and there is no evidence of discriminatory intent, courts do not second guess. Another case, Weinstock v. Columbia, declined the “task of reviewing the wisdom of university administrators’ fiscal decisions.”The point of tenure is to empower those to whom it has been awarded — persons whose profession centers on teaching and writing — to be brave enough to speak their minds because they are insulated enough from the consequences of that speech. Too few seem to seize this protection. It is often those who have the most to lose who take a chance on their convictions. Ms. Wax tells the Sun that she is in a “good position.” Other heretics are not so fortunate.To our mind, though, the protection of dissenters from campus mob rule is, to use the argot of the diversity, equity, and inclusion dean at Stanford Law School, “worth the squeeze.” If faculty face pressure to conform, it will be unidirectional; from the left. Penn’s move against Ms. Wax is powered by an understanding of “harm” that equates words with violence, a notion that she is prepared to challenge in court. It is possible that the tenure system is flawed. Of the many crises universities face, tenure appears a contributing cause to several of them. Campuses have become ideologically monochromatic, and tenure locks in radicals, the vast majority of whom will be foot soldiers of the left. It creates a two-tier system, nearly feudal, with lowly adjuncts teaching for peanuts and those with tenure enjoying their positions to the end of their days. All the more important is Professor Wax, seen by her supporters as a testament to the need for tenure. Penn is trying to bounce her not for what she has done but for what she has said. It puts the school on the wrong side of the free speech battle, at odds with those who cherish the First Amendment. Schools, Ms. Wax says, “need to have room for people like me to explain the opposition and, above all, to explain to students that there is another point of view.”

Amy Wax’s Tenure

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