Amy Wax, controversial Penn Law professor, loses her voice | Michael Smerconish

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Left: Columnist and radio/TV host Michael Smerconish; Right: Amy Wax, Robert Mundheim Professor of Law at the University of Pennsylvania Law School.

Amy Wax, who is being heralded as a free-speech martyr in some venues, suddenly lost her voice when I civilly posed a few direct questions about controversy she has brought to my alma mater.  Consider a recent Wall Street Journal headline: “Penn Law School Mob Scores a Victory.

I’d invited the law professor onto my SiriusXM radio program because I wanted to ask whether she’d violated policy with regard to grade disclosure when she claimed black students don’t finish in the upper portion of their class – an assertion vehemently denied by the law school.

The roots of this dispute lie in an opinion piece Wax coauthored in August for the Inquirer in which she blamed the “breakdown of the country’s bourgeois culture” for a host of the nation’s ills.  Writing with Larry Alexander, a professor at the University of San Diego School of Law, she said this:

“All cultures are not equal.  Or at least they are not equal to be productive in an advanced economy.  The culture of the Plains Indians was designed for nomadic hunters, but is not suited to a First World, 21st- century environment.  Nor are the single-parent, antisocial habits, prevalent among some working-class whites; the anti-`acting white’ rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants. …”

While those words drew an immediate, written rebuke from 33 Penn Law faculty members, the campaign against Wax gained real momentum only when a video from September surfaced of an interview she’d given to a Brown University professor named Glenn Loury in which Wax, discussing affirmative-action policies, said:

“Here’s a very inconvenient fact, Glenn: 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. I can think of one or two students who scored in the top half of my required first-year course.”

Wax similarly stated that Penn’s Law Review has a racial-diversity mandate.  Her claims were denied by Penn Law’s dean, Theodore Ruger, in a letter to the school community saying: “It is imperative for me as dean to state that these claims are false: black students have graduated in the top of the class at Penn Law, and the Law Review does not have a diversity mandate.”

Last Friday, about eight minutes into my civil discourse with Wax, I told her I intended to air the controversial portion of her discussion with Loury.  She said: “Well, this is a cliché, but my words have been taken out of context and distorted.” After which, I expressly invited her to provide any necessary “context” before I aired her words. She obliged. Then, after I played the clip, I asked: “Are you speaking in that cut of your class or of Penn Law classes generally?”

Wax said I’d not shared part of her answer.

“What you left out was my saying when we then went on to talk about who got on Law Review, my saying, but you know, I have to go on my own experience because the data for the entire Penn Law class is not disclosed.  I have no access to it and of course it is a closely guarded secret.  So at the end of the day, I am, you know, I didn’t say it in that particular way.  I’m going on my own observations,” she said.

I told her I was about to play the exact portion of the interview to which she was referring.  Before I could, she interjected:

“I remember very distinctly I was drawing on my own observations, however that information came to me. I was drawing on my own observations.  And I think you know, this is, this confidentiality thing has, is, is just a kind of makeweight because I disclosed no names, OK?  I didn’t reveal anybody’s identity and they have that information, they have that information.”

Now we’d arrived at the crux of the controversy.  I told Wax that while she might not have mentioned anyone by name, “everybody there knows who the students of color are.  So if I’m a student of color, you really have outed me in a way.  No?”

“Fine, if you want to view it that way….” was her reply.

She blamed confidentiality rules that preclude confirmation of her statements. “The bottom line is that they’re, the way they run the railroad is completely protected from scrutiny, immune from scrutiny, from oversight, and from criticism.  And that is a rigged game.  I, I don’t think that that is the proper way to run things.”

So then I asked: “What is the rule regarding grade disclosure and did you violate it?”

That’s when she took umbrage.

“Well, you’ll, I mean, you’ll have to ask the lawyers at the university about that.  I don’t know where that rule is or what the interpretation of it is.  I didn’t name any names, that’s all I’ll say about it because I was misled about this interview.  I thought this interview was going to be about how universities conduct themselves and their hostility to dissent.”

Misled about this interview?  When I challenged that assertion, Wax offered to read aloud the invitation she’d received for my program, but then failed to do so.  Plainly audible was that she was typing on a keyboard, but when I asked if she was searching for the invite, she said: “I am just hanging on to the line.”  So with Wax listening in, I then had my producer read aloud the invitation verbatim, including where it said the focus would be on “Penn and minorities.”

“You can stop there.  Is this being broadcast live?” she asked.  That question was a curiosity given that my invitation made clear that was the case, as did my producer, who called to commence our telephone connection.

“OK, good, thanks for letting me know,” she said.

And that is when Wax stopped talking, even after I said:

“Clear the air, you have the floor. If there is something you want to say, say it now.”

But she abandoned the interview without explanation.

And Wax’s radio silence left me wondering whether this is really a story about a tenured professor whose speech rights have been squelched.