David J. Shapiro | Amy Wax, Liz Magill, and Hypocrisy

I represent Professor Amy L. Wax, a tenured professor of law at the University of Pennsylvania Carey Law School. She is the target of charges brought by the former dean of the law school; he asked the school to strip her of tenure and fire her for remarks she made in the media and on campus.

Whatever you may have heard or read about the case, the events of the last few weeks concerning a “Palestine Writes Literature Festival” at Penn and the University’s response to it, and the rallies on campus and statements that have been made since, proves one thing: My client is the victim of a glaring double standard which can only be explained by Penn’s naked, left-leaning partisanship. If you are a Jew-hating and Israel-bashing propagandist, you can say anything and invite anyone you want to campus and you are protected by the school’s commitment to academic freedom. However, if you are a white Jewish conservative thinker who openly challenges the notion that “institutional” or “structural racism” explains life for many African Americans today and you assign books and invite speakers who support those views, then you need to go.

Here’s the background: Professor Wax teaches a conservative thought seminar, and she is vocal on social media in expressing conservative ideas. (She was also so admired for her teaching that she won a prestigious award that rarely goes to law professors.) She invited Jared Taylor to speak to her class. Mr. Taylor (Yale University ’73) is a controversial figure on the extreme right of American politics and the head of the organization, "American Renaissance". Taylor’s thinking combines conventional conservative ideas regarding family and community, classical liberal and libertarian ideas regarding freedom of association and basic property and economic rights, and ideas championing ethnoracial homogeneity within nations and a disdain for multiculturalism. His arguments are drawn from both historical experience and contemporary sociobiology.

The presence of Mr. Taylor in Professor Wax’s class led the dean to seek “major sanctions” against her. He also objected to my client assigning work by Charles Murray who writes about group differences in IQ, and the United Kingdom politician Enoch Powell who was critical of immigration from British Commonwealth nations to the United Kingdom during the 1960s. Among Professor Wax’s podcast statements for which the dean also seeks sanctions are that “Given the realities of different rates of crime, different average IQs, people have to accept, without apology, that Blacks are not going to be evenly distributed through all occupations” and that “there are a lot of things that Blacks themselves could reform to make their lives better, not have such a high out-of-wedlock birth rate, for example. Use drugs less [and] stop committing crimes.” Issues of race permeate the charges. To buttress his case against Professor Wax based on her media statements, the dean threw in a handful of isolated, years’ old allegations (which are highly contested) about claimed interactions between Professor Wax and a few minority students. But make no mistake: The charges were overwhelmingly based on what Professor Wax wrote and said outside the University about race as well as who she assigned and who was invited to speak to her class.

The dean concluded that by inviting Jared Taylor to campus, and by making comments about Black people on podcasts, Professor Wax had committed “a major infraction of the University’s behavioral standards.” You read that right: “Behavioral” standards. The charges were based on the theory that my client’s words, what she assigned, and whom she invited, “harmed” Black students and created “a demoralizing and demeaning environment for them.” That Professor Wax’s words were entirely protected by established principles of academic freedom the dean has never acknowledged.

I moved to dismiss the charges based on (among others) the legal concept of “selective prosecution” which is a fancy way of saying that it simply isn’t fair for a powerful institution (a government or a University) to single out one individual for expressing controversial or potentially offensive views when others who do the same get off scot-free. 

I pointed out, for example, that no one at the University of Pennsylvania Law Review was sanctioned for accepting an essay by William J. Aceves, a professor of law at California Western School of Law, who argued that “Ours is a racist Constitution.” Or consider that, in 1995, Penn Carey Law Professor Regina Austin suggested in a law review article that anti-Jewish conspiracy theories in the Black community can have positive effects because they promote Black community solidarity and cohesion by writing that “conspiracy theorizing by Blacks is a form of creative and imaginative speculation about concrete conditions that seem to defy conventional treatment.” I pointed out that no dean had ever sought to sanction Professor Austin based on the possibility that her comments would “harm” Jewish students or make them feel “unwelcome” (the words used by the dean in his complaint against Professor Wax). My arguments were ignored, and the charges against my client went forward. 

Professor Wax was then forced to fight these misguided charges for several years at great cost. After thousands of hours of expensive proceedings, submissions, and effort on both sides, including Penn’s retention of a high-priced private law firm to represent the dean, no final decision has yet been issued.

Which brings us to the Palestine Writes Literature Festival, which was sponsored by, among others at Penn, the Department of Near Eastern Languages and Civilizations and recent events on campus.

One of the speakers invited to the “festival” was Roger Waters, the frontman for the rock band Pink Floyd. Pages of nasty remarks by Mr. Waters about Jews and Israelis are available, but here is just one: The documentary "The Dark Side of Roger Waters" includes screenshots of a 2010 email from Waters that suggested emblazoning his famous inflatable pig with a Star of David and that used the term “dirty kikes.” Another invited speaker was Marc Lamont Hill, who has called for Israel’s eradication on CNN (he repeated the slogan “From the River to the Sea”) and has referred to mainstream media companies as “Zionist outlets.” The festival’s inaugural event was a screening of the film "Farha", which includes a modern retelling of the familiar antisemitic blood libel that casts Jews as vicious, bloodthirsty, and cruel.

And what was the administration’s response to those Penn academics who approved inviting Mr. Waters (and others like him) to the “festival” and endorsed its content? President Magill made it clear that, regardless of whether the festival’s content would violate the University’s “institutional values,” no one would be sanctioned no matter how much harm Jews would experience from having the festival on campus and no matter how unwelcome it would make Jewish students feel.

 Consider as well the University’s full-throated defense of the faculty members who attend “pro-Palestine” rallies; who openly and proudly support “resistance” and “revolution”; and who call for continued violence against Israeli civilians via intifada, and perversely refer to Israel as having committed “genocide.”  For example, Professor Ahmad Almallah spoke at an on-campus rally and said to the crowd that Israelis were responsible for the “slow murder” of Gazans. Professor Almallah, after 1,400 Jews were massacred by Hamas, also chanted at a rally on campus that where people are occupied “resistance” is “justified.”  He said that there is only “one solution” and that is “intifada revolution.”  Calling for an intifada is calling for violence which violates Penn’s speech code. By saying all of this, he also implies that the massacre of Jews was “justified.” No charges have been lodged against Prof. Almallah.  He will not, like Prof. Wax, have to hire a lawyer and fight to keep his job at a “just cause” hearing before a Hearing Board. 

The hypocrisy of the University’s position was driven home on October 19, 2023, when Professor Ben-Porath, who was the co-chair of the hearing board before whom the dean presented his case against Prof. Wax, issued a free speech statement, writing that the University “cannot legitimately punish [faculty] who profess bigoted and other hateful views,” and that “what our community members say in public spaces ... is only subject to discipline if the inflammatory speech intentionally and effectively provokes a crowd to immediately carry out violent and unlawful action.” Finally, Professor Ben-Porath states that “if someone voices hateful views, the only appropriate response that can come from the community takes the form of disagreement, rejection, or offering alternatives (or even ignoring the hateful statements, which may not deserve our attention).”

Penn’s relentless pursuit of my client, when juxtaposed with their “hands off” stance towards Palestinian activists, reveals gross inconsistencies, shameful hypocrisy, and an egregious double standard in the University’s treatment of speakers and their positions. My client must defend herself against scurrilous charges of “racism” and “white supremacy” because, as a white Jewish conservative, she dared to question the liberal orthodoxy about the lives of many African Americans. But the individuals who organized the Palestine Writes Literature Festival, who invited Mr. Waters, who approved the hateful content, and who have not condemned Hamas’ slaughter of Israeli Jews (but, instead, appear to applaud it) , can go about their day knowing that the President will not bring any charges against them. Alumni and donors should take note: These inconsistencies are motivated by a naked partisanship that favors some speakers and causes over others. This hypocrisy is now an official part of the University’s “institutional values.”

DAVID J. SHAPIRO is an attorney in New York City. He represents Professor Amy Wax in the University’s action against her seeking major sanctions. His email is dshapiro@shapirojuris.com. 

Editor’s Note: The wording of this op-ed does not completely address the different interpretations of statements made and media published in light of recent events. We encourage our readers to stay actively engaged with the news and read a diverse variety of perspectives.