In a forthcoming article for Law.com, I was asked to speak on how Penn Law could handle a professor like Amy Wax, and more broadly what law schools can do about professors who repeatedly exercise poor judgment when expressing their right to free speech.
Let me elaborate a bit on the punitive measures schools have – which might be limited because of academic tenure. A tenured position is an indefinite academic appointment that can be terminated only for cause or under extraordinary circumstances, designed to establish academic freedom of inquiry, which holds that it is beneficial for society if scholars are free to hold and examine a wide cross-section of views.
The extraordinary circumstances generally would relate to financial exigency (an imminent financial crisis that threatens the institution as a whole) or program discontinuation. There have been, of course, numerous other times tenured faculty have been laid off due to cause, the most common being immoral or personal conduct such as engaging in abuse, sexual harassment, fraud, or criminal activity. In the Wax example, when she publicly writes or says that “Embracing… cultural distance nationalism, means in effect taking the position that our country will be better off with more whites and fewer non-whites” or that “the United States is better off with fewer Asians,” claiming Asians are ungrateful for the advantages of living in the United States, Penn Law has several possible punitive options for what many consider to be hateful or harmful speech. On the teaching side, they can give her undesirable classes and teaching hours, although this might also have her claim discrimination against Penn Law. I suspect, in fact, she would do this (see below): drama tends to seek more drama. They could also investigate her public statements and, if found liable for either discrimination or harassment, they could terminate her position. It would seem to me from my experience in higher education, and I am not a lawyer, that this would be a costly and drawn-out process.
Let me suggest another course of hypothetical action. Penn Law could take the exact opposite approach to that of punitive and pay for therapy for Professor Wax. I am also not a psychologist, but I don’t think you have to be one to at least wonder whatever adaptive attention-seeking behavior Wax has relied on that at some stage turned maladaptive and harmful to others. Put in layperson’s terms, she would seem deeply insecure and craves relevance. Almost all of us need attention, of course (for example, I need a lot of it), due to evolutionary reasons, but for a small number this turns to extraordinarily harmful means in order to garner it. I would at least guess that this is what is going on with Professor Wax. Paradoxically (or sadly), an article such as this that claims she is insecure also probably gives her a short-term hit of security before she needs to fill that empty vessel again. Remember that in Greek mythology, Narcissus didn’t love himself, he only loved the reflection of himself. To his demise, he couldn’t stand to leave for a second the external validation.
The bigger picture beyond Wax is one that has concerned me for many years, which I have written on here and podcasted with author and therapist Terry Real here. Legal education presents tiered and class structures that provide incredibly fertile ground for insecurity to be masked as superiority and grandiosity. The field of psychology has dedicated a great deal to helping people come up from the one down position: people with overt insecurity. It has done very little in the equally corrosive direction of people with covert insecurity masking it as superiority. These are Real’s words from my podcast with him and in his best selling book for over 20 years, “I Don’t Want to Talk About It.”
I don’t have a solution and I could well be wrong. Perhaps Wax just feels disdainfully toward multiple and large segments of people. I hope this isn’t the case. But I suspect better and more trained minds than I do have solutions to diminish this fertile well that can lend toward progression of insecurities in higher education. That something can be done within the halls of academia where brilliant minds are not compelled to make hateful statements because of shame or inadequacies they may have experienced from having been bullied, ignored, neglected, or having suffered trauma. I suspect there is a way to address that we are equals in higher education – that can be addressed at the institutional, organizational, administrative, and individual level. That no one school makes someone better as a human being than at another. That no tenure-track position makes for a better human than a non-tenured or staff position. Imagine a world where Penn Law does provide therapy or counseling for Wax, where she does accept the offer, and where her rhetoric against people she has never met that is psychologically harmful to large numbers is eliminated. Where she no longer needs attention at the expense of others. At this stage, we can only imagine. But it at least sounds much more desirable as a long-term solution than what I am doing now: writing an article about someone’s incredible need for relevance that will only make them feel more relevant.
Mike Spivey is the founder of The Spivey Consulting Group and has been featured as an expert on law schools and law school admissions in many national media outlets, including The New York Times, The Economist, the ABA Journal, The Chronicle of Higher Education, U.S. News & World Report, CNN/Fortune, and Law.com. Prior to founding Spivey Consulting, Mike was a senior level administrator at Vanderbilt, Washington University, and Colorado law schools. You can follow him on Twitter and Instagram or connect with him LinkedIn.