Amy Wax
University of Pennsylvania Law School
Amy L. Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School, where she has received the Harvey Levin Memorial Award for Teaching Excellence. She has a B.S. from Yale College, an M.D. from Harvard Medical School, and a J.D. from Columbia Law School. She is a former assistant to the United States Solicitor General, and her most recent book is Race, Wrongs, and Remedies: Group Justice in the 21st Century.
University of Pennsylvania Law School
Amy L. Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School, where she has received the Harvey Levin Memorial Award for Teaching Excellence. She has a B.S. from Yale College, an M.D. from Harvard Medical School, and a J.D. from Columbia Law School. She is a former assistant to the United States Solicitor General, and her most recent book is Race, Wrongs, and Remedies: Group Justice in the 21st Century.
The following is adapted from a speech delivered
on December 12, 2017, at Hillsdale College’s Allan P. Kirby, Jr. Center
for Constitutional Studies and Citizenship in Washington, D.C., as part
of the AWC Family Foundation Lecture Series.
There is a lot of abstract talk these days on American
college campuses about free speech and the values of free inquiry, with
plenty of lip service being paid to expansive notions of free expression
and the marketplace of ideas. What I’ve learned through my recent
experience of writing a controversial op-ed is that most of this talk is
not worth much. It is only when people are confronted with speech they
don’t like that we see whether these abstractions are real to them.
The op-ed, which I co-authored with Larry Alexander of the University of San Diego Law School, appeared in the Philadelphia Inquirer
on August 9 under the title, “Paying the Price for the Breakdown of the
Country’s Bourgeois Culture.” It began by listing some of the ills
afflicting American society:
Too few Americans are
qualified for the jobs available. Male working-age labor-force
participation is at Depression-era lows. Opioid abuse is widespread.
Homicidal violence plagues inner cities. Almost half of all children are
born out of wedlock, and even more are raised by single mothers. Many
college students lack basic skills, and high school students rank below
those from two dozen other countries.
We then discussed the “cultural script”—a list of
behavioral norms—that was almost universally endorsed between the end of
World War II and the mid-1960s:
Get married before you have
children and strive to stay married for their sake. Get the education
you need for gainful employment, work hard, and avoid idleness. Go the
extra mile for your employer or client. Be a patriot, ready to serve the
country. Be neighborly, civic-minded, and charitable. Avoid coarse
language in public. Be respectful of authority. Eschew substance abuse
and crime.
These norms defined a concept of adult
responsibility that was, we wrote, “a major contributor to the
productivity, educational gains, and social coherence of that period.”
The fact that the “bourgeois culture” these norms embodied has broken
down since the 1960s, we argued, largely explains today’s social
pathologies—and re-embracing that culture would go a long way toward
addressing those pathologies.
In what became perhaps the most
controversial passage, we pointed out that cultures are not equal in
terms of preparing people to be productive citizens in a modern
technological society, and we gave some examples of cultures less suited
to achieve this:
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.
The reactions to this piece raise the
question of how unorthodox opinions should be dealt with in academia—and
in American society at large.
It is well documented that American
universities today, more than ever before, are dominated by academics on
the left end of the political spectrum. How should these academics
handle opinions that depart, even quite sharply, from their “politically
correct” views? The proper response would be to engage in reasoned
debate—to attempt to explain, using logic, evidence, facts, and
substantive arguments, why those opinions are wrong. This kind of civil
discourse is obviously important at law schools like mine, because law
schools are dedicated to teaching students how to think about and argue
all sides of a question. But academic institutions in general should
also be places where people are free to think and reason about important
questions that affect our society and our way of life—something not
possible in today’s atmosphere of enforced orthodoxy.
What those of us in academia should certainly not
do is engage in unreasoned speech: hurling slurs and epithets,
name-calling, vilification, and mindless labeling. Likewise we should
not reject the views of others without providing reasoned arguments. Yet
these once common standards of practice have been violated repeatedly
at my own and at other academic institutions in recent years—and we
increasingly see this trend in society as well.
One might respond, of course, that
unreasoned slurs and outright condemnations are also speech and must be
defended. My recent experience has caused me to rethink this position.
In debating others, we should have higher standards. Of course one has
the right to hurl labels like “racist,” “sexist,” and
“xenophobic” without good reason—but that doesn’t make it the right
thing to do. Hurling such labels doesn’t enlighten, inform, edify, or
educate. Indeed, it undermines these goals by discouraging or stifling
dissent.
So what happened after our op-ed was
published last August? A raft of letters, statements, and petitions from
students and professors at my university and elsewhere condemned the
piece as racist, white supremacist, hate speech, heteropatriarchial,
xenophobic, etc. There were demands that I be removed from the classroom
and from academic committees. None of these demands even purported to
address our arguments in any serious or systematic way.
A response published in the Daily Pennsylvanian,
our school newspaper, and signed by five of my Penn Law School
colleagues, charged us with the sin of praising the 1950s—a decade when
racial discrimination was openly practiced and opportunities for women
were limited. I do not agree with the contention that because a past era
is marked by benighted attitudes and practices—attitudes and practices
we had acknowledged in our op-ed!—it has nothing to teach us. But at
least this response attempted to make an argument.
Not so an open letter published in the Daily Pennsylvanian
and signed by 33 of my colleagues. This letter quoted random passages
from the op-ed and from a subsequent interview I gave to the school
newspaper, condemned both, and categorically rejected all of my views.
It then invited students, in effect, to monitor me and to report any
“stereotyping and bias” they might experience or perceive. This letter
contained no argument, no substance, no reasoning, no explanation
whatsoever as to how our op-ed was in error.
We hear a lot of talk about role
models—people to be emulated, who set a positive example for students
and others. In my view, the 33 professors who signed this letter are anti-role
models. To students and citizens alike I say: don’t emulate them in
condemning people for their views without providing a reasoned argument.
Reject their example. Not only are they failing to teach you the
practice of civil discourse—the sine qua non of liberal education
and of democracy—they are sending the message that civil discourse is
unnecessary. As Jonathan Haidt of NYU wrote on September 2 on his
website Heterodox Academy: “Every open letter you sign to condemn a
colleague for his or her words brings us closer to a world in which
academic disagreements are resolved by social force and political power,
not by argumentation and persuasion.”
It is gratifying to note that the reader
comments on the open letter were overwhelmingly critical. The letter has
“no counterevidence,” one reader wrote, “no rebuttal to [Wax’s]
arguments, just an assertion that she’s wrong. . . . This is
embarrassing.” Another wrote: “This letter is an exercise in
self-righteous virtue-signaling that utterly fails to deal with the
argument so cogently presented by Wax and Alexander. . . . Note to
parents, if you want your daughter or son to learn to address an
argument, do not send them to Penn Law.”
Shortly after the op-ed appeared, I ran
into a colleague I hadn’t seen for a while and asked how his summer was
going. He said he’d had a terrible summer, and in saying it he looked so
serious I thought someone had died. He then explained that the reason
his summer had been ruined was my op-ed, and he accused me of attacking
and causing damage to the university, the students, and the faculty. One
of my left-leaning friends at Yale Law School found this story
funny—who would have guessed an op-ed could ruin someone’s summer? But
beyond the absurdity, note the choice of words: “attack” and “damage”
are words one uses with one’s enemies, not colleagues or fellow
citizens. At the very least, they are not words that encourage the
expression of unpopular ideas. They reflect a spirit hostile to such
ideas—indeed, a spirit that might seek to punish the expression of such
ideas.
I had a similar conversation with a
deputy dean. She had been unable to sign the open letter because of her
official position, but she defended it as having been necessary. It
needed to be written to get my attention, she told me, so that I would
rethink what I had written and understand the hurt I had inflicted and
the damage I had done, so that I wouldn’t do it again. The message was
clear: cease the heresy.
Only half of my colleagues in the law
school signed the open letter. One who didn’t sent me a thoughtful and
lawyerly email explaining how and why she disagreed with particular
points in the op-ed. We had an amicable email exchange, from which I
learned a lot—some of her points stick with me—and we remain cordial
colleagues. That is how things should work.
Of the 33 who signed the letter, only one
came to talk to me about it—and I am grateful for that. About three
minutes into our conversation, he admitted that he didn’t categorically
reject everything in the op-ed. Bourgeois values aren’t really so bad,
he conceded, nor are all cultures equally worthy. Given that those were
the main points of the op-ed, I asked him why he had signed the letter.
His answer was that he didn’t like my saying, in my interview with the Daily Pennsylvanian,
that the tendency of global migrants to flock to white European
countries indicates the superiority of some cultures. This struck him as
“code,” he said, for Nazism.
Well, let me state for the record that I don’t endorse Nazism!
Furthermore, the charge that a statement
is “code” for something else, or a “dog whistle” of some kind—we
frequently hear this charge leveled, even against people who are stating
demonstrable facts—is unanswerable. It is like accusing a speaker of
causing emotional injury or feelings of marginalization. Using this kind
of language, which students have learned to do all too well, is
intended to bring discussion and debate to a stop—to silence speech
deemed unacceptable.
As Humpty Dumpty said to Alice, we can
make words mean whatever we want them to mean. And who decides what is
code for something else or what qualifies as a dog whistle? Those in
power, of course—which in academia means the Left.
My 33 colleagues might have believed they
were protecting students from being injured by harmful opinions, but
they were doing those students no favors. Students need the opposite of
protection from diverse arguments and points of view. They need exposure
to them. This exposure will teach them how to think. As John Stuart
Mill said, “He who knows only his own side of the case, knows little of
that.”
I have received more than 1,000 emails
from around the country in the months since the op-ed was
published—mostly supportive, some critical, and for the most part
thoughtful and respectful. Many expressed the thought, “You said what we
are thinking but are afraid to say”—a sad commentary on the state of
civil discourse in our society. Many urged me not to back down, cower,
or apologize. And I agree with them that dissenters apologize far too
often.
Democracy thrives on talk and debate, and
it is not for the faint of heart. I read things every day in the media
and hear things every day at my job that I find exasperating and
insulting, including falsehoods and half-truths about people who are my
friends. Offense and upset go with the territory; they are part and
parcel of an open society. We should be teaching our young people to get
used to these things, but instead we are teaching them the opposite.
Disliking, avoiding, and shunning people
who don’t share our politics is not good for our country. We live
together, and we need to solve our problems together. It is also always
possible that people we disagree with have something to offer, something
to contribute, something to teach us. We ignore this at our peril. As
Heather Mac Donald wrote in National Review on August 29: “What
if the progressive analysis of inequality is wrong . . . and a cultural
analysis is closest to the truth? If confronting the need to change
behavior is punishable ‘hate speech,’ then it is hard to see how the
country can resolve its social problems.” In other words, we are at risk
of being led astray by received opinion.
The American way is to conduct free and
open debate in a civil manner. We should return to doing that on our
college campuses and in our society at large.
