Professor Amy Wax was at it yet again with a problematic take.
And the Academy rallied! Why, there simply must be academic freedom to speak such thoughts. Even if they aren’t academic. If we don’t tolerate these completely unacademic ponderings, you’ll be next. Joe Patrice did a nice job of knocking down those pins. But I’m curious why the most vigorous defense of academic freedom always comes in the name of someone like Amy Wax. I don’t think it’s a coincidence.
I wonder if the problem is how we define academic freedom. The basis of academic freedom is intellectual pursuits. Flat-out racism and eugenics are not intellectual pursuits. And we forget often that academic freedom not only applies to the faculty but to the students as well. As the Supreme Court pointed out in Keyishian v. Board of Regents of the State Univ. of New York, 385 U.S. 589 (1967): “The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues [rather] than through any kind of authoritative selection.” Thus, not only are professors and students enriched via a free exchange of ideas, but society as a whole is better off.
Yet we cling to academic freedom to mean we can say any stupid anti-intellectual thing. Conservative law profs argue that we must preserve Amy Wax’s anti-intellectual position in the name of academic freedom. I’ve already written about Amy Wax and how her position is not academic. This column really isn’t about her.
It’s about the subtle and not-so-subtle racism that plays out because law professors are out defending the most flagrant examples. It provides shelter and cover for other less overt but still egregious forms of racism. And those, too, hamper academic freedom.
I expect the Amy Wax defense from the conservative side of academia. The Amy Wax fetishism is strong and takes up a LOT of their spare blogging time and space. My beef here is with the “liberal” law professors who are quick to condemn Amy Wax yet equally quick to adopt some of her same beliefs, however subtly.
I tweeted, “Let’s suppose a flagrant racist is on a law school faculty hiring committee. Let’s suppose further the prof in question is sufficiently smart in their racism to know not to just exclude minorities based upon minority status. What proxies would that racist use?” It was amusing that people were asking which law schools had racists on the faculty. Hint: All of them, to varying degrees.
But my point in crafting this tweet wasn’t to state that there’s racism in every law school (although there is). It was to state that one doesn’t have to be Amy Wax to engage in types of beliefs that are quite similar to Amy Wax.
For example, we could discuss whether using law school alma mater as a prime mover for a school’s hiring practices is problematic. We could discuss whether using Supreme Court clerkships would yield the same result. You see, you don’t have to be Amy Wax to promote outcomes that closely follow her belief system. All you have to do is continue to promote a system that already disadvantages some groups and celebrate it as a meritocracy.
And law schools are doing just that.
Schools LOVE to pretend they are doing their liberal best. As Professors Carliss Chatman and Najarian Peters brilliantly point out, it is quite easy to make it LOOK like you’re woke and liberal and caring about diversity. We’re not Amy Wax. Hey, we’re TRYING. We have a TRULY AMAZING minority candidate.
Really? Just one?
Amy Wax, as I stated in a tweet, is a sideshow. And treating her like an aberration ignores a larger problem in the legal academy and provides cover for a host of racial sins. As student bodies grow more diverse, law school faculty profiles are just so damn slow to catch up.
Again, Chatman and Peters: “Legal academic hiring follows a script that is steeped in racist practices, because the legal academy is one of the last safe spaces for white supremacist ideas to flow freely under the cover of academic freedom and distorted First Amendment arguments. Around and around the tables of faculty meetings, heads nod in agreement to the delivery of a homily of regret, confounded but nonetheless resigned to the poised self-reverence that gives the straight-faced and well-meaning faculty the spine to say unspeakable things about how much they tried. They tried.”
Maybe they did try. Maybe they didn’t.
Because if all these institutions are trying, why are so many failing? Incompetence may be an answer. But systemic incompetence suggests something far more nefarious. As Professor Meera Deo’s book points out, it doesn’t seem like an accident: “Recent AALS statistics show that 62% of law professors are men and at least 71% are white; though faculty diversity is low now, it was even lower in past decades.” And the bulk of those faculty hail from a few elite schools. So it seems that the fetishism of law schools is Ivy, not diversity.
Thus, the focus on the Amy Wax Sideshow hides more problematic points. Her notion of eugenics may receive full-throated contempt from a legal academy that uses hiring signals that promote outcomes that aren’t far off from the anti-intellectual crap Amy Wax is spouting. Whether you think Amy Wax ought to be fired or not, her views are merely spoken extremes of a much more unspoken problem in a not-so-liberal legal academia.
Maybe, just maybe, we should focus on those problems.
LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at email@example.com.