A distinguished law professor is publicly shamed for pointing out truths about race preferences
March 20, 2018
The diversity imperative demands dissimulation and evasion. The academic-achievement gap, the behavioral differences that produce socioeconomic disparities, and the ubiquity of racial preferences must all be suppressed in public discourse, since they undercut the narrative that white racism is the driving force in American society. This dissimulation was on display last week at the University of Pennsylvania Law School, when Dean Ted Ruger announced that law professor Amy Wax would no longer teach mandatory first-year law courses at the school. In a memo announcing his decision, Ruger accused Wax of “conscious indifference” to truth. It is Ruger, however, who has distorted facts.
Ousting Wax from her first-year civil-procedure class has been a desideratum of the academic Left since she published an op-ed last August celebrating bourgeois virtues like the work ethic, respect for authority, and sexual temperance. Wax was deemed a “white supremacist” for suggesting that not all cultures were equal in preparing people for participation in a modern economy.
In December, Dean Ruger asked her to desist from teaching first-year students and to take a leave of absence, in the hope that the controversy spurred by her op-ed would die down. As a “pluralistic dean,” he said, he needed to accommodate all factions in the school. Wax declined the request and reported the details of the conversation immediately thereafter to friends. (I was one of the people to whom she spoke.) Wax later described the conversation in a Wall Street Journal op-ed. Ruger denied her account through a spokesman, claiming that he had merely engaged in a pro forma discussion of her sabbatical schedule, such as he would have done with any other professor. Ruger’s version is not credible, though: in an informal survey, no law professor polled reports ever having a dean drop by his office to discuss a routine sabbatical. This alleged bureaucratic convention does not exist, unless Dean Ruger has only recently introduced it.
Ruger’s request that Wax stop teaching first-year students became non-negotiable, however, after a video dialogue Wax had recorded in September came to the attention of her opponents. On the video, Wax and Brown University economist Glenn Loury discuss affirmative action. Wax talks about how racial preferences hinder the ability of their alleged beneficiaries to succeed academically, by catapulting them into schools for which they are significantly less prepared than their peers; this negative consequence of affirmative action is known as the “mismatch effect.” At Penn’s law school, Wax said, she didn’t think that she had ever seen a black law student graduate in the top quarter of his class, and “rarely” in the top half. Loury asked Wax if the University of Pennsylvania Law Review had a “racial diversity mandate.” Wax answered “yes.” In his memo to the school, Ruger denied this point: “the Law Review does not have a diversity mandate,” he wrote. “Rather, its editors are selected based on a competitive process.”
By any common understanding of a “diversity mandate,” the Penn law review most certainly has one. In the summer of 2003, it created a new pathway for membership to solve the perennial lack of racial diversity among its editors. According to a contemporaneous Chronicle of Higher Education article, until then, students were selected based either on their grades or on a writing competition that assessed analytic and editing skills. Now, however, a third criterion would be added—a “personal statement,” in which an applicant might address the “challenges” he has faced, the “familial, cultural, or personal experiences that have contributed” to his worldview, and the “unique contribution” he would make to the review. The editorial guidelines explain that the personal statement allows the law review to find editors who bring “diverse perspectives” to legal scholarship.
Anyone familiar with “holistic admissions” will recognize this language, even had the architects of the personal-statement requirement not already explained that its goal was to increase racial diversity. Somehow, “challenges” and “cultural experiences” always pertain exclusively to underrepresented minorities. The percentage of editors selected via the personal statement, which is factored into a new composite score that includes first-year grades and the writing competition, may vary from year to year.
The 2003 Chronicle article was a rare public peek into law reviews’ diversity efforts, not just at Penn but across the country. Since then, the Penn guidelines have been closely guarded; any editor who discusses them with an outsider risks getting kicked off the review. But they remained in place as recently as 2015, according to a former member. There is zero chance that the review has since reverted to a purely meritocratic selection process, especially in the era of Black Lives Matter campus protests.
If challenged, Ruger might argue that the Penn law review’s diversity policy is not a “mandate,” since it was not imposed by the administration. But most such diversity policies are similarly self-imposed. Ruger might also insist that the process remains “competitive.” But the question is: would the candidates who compete via the personal-statement route have gotten on the review through grades or writing skills alone? If they could not have, then the competition is not universal but race-specific.
Ruger also accused Wax of saying during her interview with Loury that Penn’s black law students should not “even go to college” (whatever that would mean, since they have already gone to college). That, too, is a distortion, presumably intended to inflame the sentiments against her. Wax at that point in the discussion was speaking about college generally. She said in passing that while no critic of racial preferences is saying that black students should not go to college, some students should not. Wax was speaking generally, not referring to Penn law students in particular.
As for the low number of black Penn law students graduating in the top of their class, Wax’s observations about the mismatch effect accord with all available data. The Law School Admissions Council collected 27,000 law student records in the early 1990s, representing nearly 90 percent of accredited schools. After the first year, 51 percent of black law students ranked in the bottom tenth of their class, compared with 5 percent of white students. Two-thirds of black students were in the bottom fifth of their class. Only 10 percent of blacks were in the top half of their class. As mismatch theory predicts, bar-examination failure rates were also skewed, since students put into classrooms above their preparation levels will learn less than when teaching is pitched to their current academic skills. Twenty-two percent of black test-takers in the LSAC database never passed the bar exam after five attempts, compared with 3 percent of white test-takers.
Unfortunately, Wax overlooked the precautionary rule for criticizing affirmative action: avoid any generalizations that can be rebutted with an even vaguer generalization. “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,” she said, clearly speaking informally and from a subjective perspective. Ruger responded in his memo: “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.” Ruger’s statement leaves unspecified what the “top of the class” is and how many black students over what period of time have graduated in it. But his assertion, as so broadly defined, is undoubtedly true. It is also not inconsistent with Wax’s claim that black students have graduated in the top half of the class, but “rarely.”
Ruger’s stated reasons for demoting Wax were that she had violated the confidentiality of students’ academic records and had put her impartiality regarding black students into doubt. The confidentiality charge is the only facially plausible one. Though Wax mentioned no students by name, and was speaking generally, to state even a provisional recollection that no black student has graduated in the top quarter of his class does allow an inference about the grades of all black law students. But if making such a statement is a punishable offense, then there will be a serious chilling effect on any discussion of the negative consequences of affirmative action.
Ruger says that black students may now “legitimately question whether the inaccurate and belittling statements she has made may adversely affect their learning environment and career prospects.” That is a calumny. Wax has won teaching awards from students and from faculty. There is no evidence that she has ever treated her students unfairly. And even if she were inclined to partiality, which she most decidedly is not, grading in first-year courses is blind.
If Wax’s statements about the mismatch effect are “belittling,” that is not her fault. She has simply dared utter the facts about black academic underpreparedness that the diversity charade works overtime to conceal. It is the perverse consequence of affirmative action that the people who pull back the veil on that charade are the ones accused of doing damage to minorities.
Heather Mac Donald is the Thomas W. Smith Fellow at the Manhattan Institute and a contributing editor of City Journal, and the author of the New York Times bestseller The War on Cops.
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