Wax
It’s
official:
Amy
Wax’s
lawsuit
against
the
University
of
Pennsylvania
just
got
laughed
out
of
court.
The
Penn
Law
professor
had
sued
the
school
after
it
imposed
altogether
minor
sanctions
on
her
following
a
finding
of
“flagrant
unprofessional
conduct.”
That
outcome
followed
literally
years
of
unprofessional
behavior:
from
baselessly
insulting
Black
graduates
to
inviting
white
nationalists
to
campus.
Rather
than
accept
the
penalty
—
which
did
not
take
away
her
tenure
or
job
—
Wax
filed
a
lawsuit
claiming
the
school
was
discriminating
against
her
as
a
White
Jewish
woman
and
something
something
First
Amendment.
Shockingly,
that
did
not
work.
Judge
Timothy
Savage
of
the
Eastern
District
of
Pennsylvania
did
not
take
long
to
give
Wax’s
masterwork
of
self-pity
the
Icarus
treatment:
As
much
as
Wax
would
like
otherwise,
this
case
is
not
a
First
Amendment
case.
It
is
a
discrimination
case
brought
under
federal
antidiscrimination
laws.
It
calls
for
us
to
determine
whether
offensive
comments
directed
at
racial
minorities
are
protected
by
those
laws.Having
considered
Penn’s
motion
to
dismiss
the
Amended
Complaint
for
failure
to
state
a
cause
of
action,
we
conclude
Wax
has
failed
to
allege
facts
that
show
that
her
race
was
a
factor
in
the
disciplinary
process
and
there
is
no
cause
of
action
under
federal
antidiscrimination
statutes
based
on
the
content
of
her
speech.
Thus,
we
will
dismiss
the
federal
discrimination
claims
and
decline
to
exercise
supplemental
jurisdiction
over
her
state
law
claims.
When
Wax
first
filed
her
complaint,
we
pointed
out
that
the
First
Amendment
doesn’t
get
people
out
of
hostile
work
environment
allegations.
For
his
part,
Judge
Savage
already
tried
to
impress
upon
Wax
that
the
First
Amendment
claims
weren’t
going
to
fly
when
she
tried
to
have
her
sanctions
enjoined.
So
today’s
opinion
shouldn’t
come
as
a
surprise
to
any
but
the
most
delusional
observer.
For
those
keeping
score
at
home,
Wax
claimed
that,
after
repeated
—
and
increasingly
audacious
—
statements
about
race
including
explaining
that
the
country
really
needed
fewer
Asians,
the
sanctions
Penn
levied
were
actually
racial
discrimination
against
her.
She
had
two
theories.
First,
she
argued
that
she
was
being
discriminated
against
because
the
content
of
her
speech
dealt
with
race.
That’s
the
part
where
she
was
trying
to
shoehorn
the
First
Amendment
into
a
discrimination
case
and
Judge
Savage
was
appropriately
savage
in
pointing
out
that
discrimination
laws
cover
the
race
of
speakers
and
not
the
speech.
Attempting
to
get
around
this
obstacle,
Wax
proffered
a
wacky
theory
was
that
the
school
doesn’t
punish
critics
of
Israel
the
way
she’s
being
punished
for
saying
Black
students
can’t
get
good
grades
at
Penn
and
therefore
the
school
is
discriminating
her
for
being
Jewish.
She
cobbled
together
a
few
instances
of
speakers
at
Penn
who
criticized
Israel’s
conduct
in
Gaza
and
didn’t
get
punished
the
way
she
did.
The
judge
wasn’t
impressed.
As
is
apparent
from
Wax’s
allegations
and
what
she
did
not
allege,
the
purported
comparators
are
not
comparators.
She
did
not
allege
any
of
them
made
more
than
two
harmful
statements.
See
Wilcher,
441
F.
Appx
at
882.
She
did
not
allege
they
made
statements
about
the
law
school
or
even
the
wider
University
community.
All
of
the
comments
in
her
complaint
had
to
do
with
current
events.
None
of
the
alleged
comparators
had
a
pattern
of
making
denigrating
and
derogatory
statements
about
minorities.
Wax
also
does
not
identify
the
race
of
the
alleged
comparators,
except
Almallah,
a
Palestinian
who
participated
in
a
rally
in
support
of
Palestine.
They
do
not
compare
to
Wax,
a
tenured
law
professor
with
a
record
of
derogatory
and
discriminatory
statements
to
and
about
members
of
the
university
community,
who
was
given
warnings
and
on
whom
lesser
disciplinary
measures
were
imposed
before
she
was
subjected
to
disciplinary
proceedings.
This
is
the
Wax
playbook
in
miniature:
mistake
academic
tenure
for
a
Willy
Wonka-style
golden
ticket
to
rant
about
white
grievance
fantasies,
then
shriek
“censorship!”
when
the
school
says
the
First
Amendment
doesn’t
let
her
make
students
feel
like
their
professor
is
discriminating
against
them
on
the
basis
of
race.
She
keeps
trying
to
rerun
this
routine
in
different
courts
and
committees,
as
if
eventually
someone
will
squint
hard
enough
at
the
statutes
and
say,
“You
know
what,
Amy,
you’re
right
—
racial
harassers
are
a
protected
class.”
Without
a
federal
discrimination
claim,
her
state
contract
claims
couldn’t
keep
her
in
federal
court.
In
sum,
her
allegations,
accepted
as
true,
do
not
pass
the
plausibility
test.
Conclusory
statements
are
not
substitutes
for
facts.
Subjective
beliefs
are
not
facts.
He’s
talking
about
the
complaint,
but
this
unintentionally
sums
up
the
whole
Amy
Wax
“academic
freedom”
lament.
Conclusory
statements
and
subjective
beliefs
are
not
facts.
And
to
the
extent
academic
freedom
exists
to
shield
academics
in
the
pursuit
of
truth,
it’s
not
an
excuse
to
lazily
hammer
out
your
Fox
News
talking
head
application
and
pretend
it’s
scholarship.
As
a
final
twist,
Judge
Savage
clarifies
that
no
amendment
could
possibly
salvage
this
turd,
denying
leave
for
Wax
to
file
a
potential
amended
complaint.
Thus
ends
—
for
now
—
this
academic
dumpster
fire.
But
Wax
still
has
her
job,
so
the
next
professional
inquiry
is
surely
around
the
corner.
(Check
out
the
opinion
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
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of
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Like
A
Lawyer.
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