then senator bernie sanders of vermont campaigns in new hampshire. ♪ brian lamb: amy wax. before i ask you questions about why we asked you to come here, i wanted to go through your background. where are you from?

amy wax: i was raised, born and raised in troy, new york, which is a small city north of albany in upstate new york. my parents are -- they are both deceased now, but we're part of a very cohesive jewish community, up there, of fairly devout people, conservative and modern orthodox jews in that area, the tri-city area. my father worked in the garment industry. he eventually bought a small business, a factory, up there and worked very hard his whole life to support his family, my two sisters and me. my mother was a teacher for a while and an administrator in the government, in albany. so i kind of come from the middle bourgeoisie, people who are not very well connected or in anyway, i think, privileged, so i regard myself, almost, as kind of a working class girl, certainly as a yeoman class girl. i attended the public schools in troy, new york. i went to college at yale

college, in the early 1970's, which was when yale was just beginning to accept women. i majored in biophysics and biochemistry. i then went to oxford on a marshall scholarship to study philosophy, which i gotten very interested in. i attended harvard medical school. i did a year of harvard law school and actually, really, law seemed very attractive to me, so i decided to continue to pursue law. i ended up at the justice department under the reagan and bush administration, in an office called the office of the solicitor general, which handles all the united states business before the supreme court of the united states, a very exciting place to be, a really wonderful shop in the justice department. i, then, started teaching law at the university of virginia law school, and after about seven years, i moved to the university

of pennsylvania law school. so, i have been an appellate practitioner, i have worked in medicine, and i have been an academic, a legal academic. lamb: go back to what you said about being a part of the bourgeoisie. what does that word mean? wax: well, i've had reason to think hard about what that word means because part of the reason that i become infamous, or infamous in my small way is that i published an op-ed about so called bourgeois values. my understanding of bourgeois values is a set of precepts or habits or guidelines that middle-class people, in the west and especially in the anglosphere, have developed as an ethos, a code and a set of practices, which is suited to democratic capitalism. one could make a list of the bourgeois virtues and values, and i feel that my family was very self-consciously invested

in those values. they were adherents, i guess you could say, including being hardworking, being law-abiding, trustworthy, frugal, honest, punctual, restraining, prudent, all of these good things that make for flourishing within a particular context, which is ours. lamb: well, you talk about your parents. where did they come from, originally, or the family came from? wax: they came from eastern europe. they were immigrants during the first part of the 20th century, part of that wave of jewish immigration from russia and eastern europe. lamb: but as someone who has a lot of education, when did you get, originally, interested in learning? wax: well, i can't remember a

time when i wasn't interested in learning. my parents were not super well educated. my mother did, eventually get a college degree. my father worked for an associate degree at night, but certainly they didn't start out their life terribly well educated, but they clearly revered learning and a certain kind of intellectual rigor and honesty, a searching approach to the truth, to empiricism, to facts and arguments and logic. that was their modus operandi, the way that they approached the world, and also a reverence for all of the high achievements of civilization in art, in music and literature. so i recall, very distinctly, that attitude being imparted to

me in all sorts of ways, big and small. lamb: when you went to yale, what did you study for your undergrad? wax: well, i majored in science. i majored in something called molecular biophysics and biochemistry, which was an interdisciplinary major, but i also studied a lot of philosophy, of literature, of history. i really tried, quite self-consciously and deliberately, to be broadly educated, to familiarize myself with the western canon, i guess you could say, my heritage, my tradition. one of my favorite courses in college was victorian poetry, which was really about so much more than victorian poetry. and i recently mentioned, to a friend of mine who's an englishman and quite literate, a poem by alfred, lord tennyson, called "mariana," which he said

he'd never heard of. he said i out-tennyson'd him about this poem. so, you know, i was -- i remember putting an enormous amount of effort into familiarizing myself with the best that had been thought and done, and i was quite curious about it. i wanted to know what the great ideas and achievements were, wholly apart from getting, just a very rigorous scientific education. lamb: at the end of your yale -- excuse me, my throat is not clear. at the end of your yale experience, what did you do right after that? wax: i went to oxford to study at oxford. lamb: what'd you study? wax: i studied philosophy, physiology, and psychology, a

new program, undergraduate program that had just been launched, at oxford, called ppp. i did another undergraduate course, and all of this was by way of trying to decide whether i should continue on in science or go off in another direction, perhaps study philosophy. i did ultimately decide to continue onto medicine, although that's not what i ended up doing at the end of the day. i guess you could say i drifted off into another area, really by way of the justice department. lamb: could you -- did you get your medical degree? wax: i did. lamb: neurology? wax: and i trained in neurology. lamb: and so, you could've been a neurologist? wax: absolutely, and that was certainly an option for me. lamb: when did you give that up and why? wax: well, it was a long time ago, so it's hard to me for reconstruct exactly why. i think the main reason is that, i was temperamentally, not terribly well-suited to the practice of medicine, you know, what you learn when you start out in one field and end up in another is that, the reasons why

one field is suitable to you and others may not be -- or another may not be, can often be a rather humble reason, like, just your personality or the kind of person that you are, what floats your boat, what you look forward to when you wake in the morning, your temperament. i was not really a people person. i was more of an idea person, which doesn't mean that i don't enjoy people, but i don't think i get the kind of pleasure and satisfaction from helping people that, maybe, we associate with the female persona. that's a hoary cliche, of course because there are many men who are that way and there are many women who are not. so, i found that law was more compelling and satisfying for me

and it's interesting because it helps me advise young people that i have done both things, young people who are trying to decide, often grappling with decisions about which direction they should go in and in many cases, it's under parental pressure. there is -- there is familial and parental pressure to enter one field rather than the other, something that i, myself, felt when i was younger. so, i am entirely sympathetic to what they're going through and i try to help them make the decision by asking some very simple questions about themselves and what they like, what they enjoy, moment by moment, day by day, hour by hour. and every field involves tedium. every field has its aggravations, its irritations,

and its challenges. the question is, which irritations you find least irritating, and then, of course, what compensations you find most compensating. so that's a very complicated calculus, and i think 20, 21-year-olds, they're really, not always equipped to make those decisions. lamb: so you got your medical degree from? wax: harvard. lamb: did you ever practice medicine? wax: i did, actually. i did a residency in neurology. when i decided to return to law school and complete my law degree, i faced the challenge of paying my tuition. by then, this period of exploding tuition had started to take off. you probably are aware that the cost of higher education and graduate education has increased dramatically. so it was already the 1980's and i had to work part-time to put

myself through law school. so i did work in clinics, in the south bronx, and in brooklyn, hmo's actually, some of the fledgling hmo's, to help put myself through -- finish colombia law school. lamb: so your degree in law is from columbia? wax: yes, i transferred to columbia because i had married someone who was working in new york at the time. lamb: what was your experiences being a clerk to abner mikva, the former congressman from illinois? wax: right. lamb: and council to bill clinton? what was that like? wax: well, it was wonderful. he's a terrific person, a great judge, was very nice to his clerks, the highest intellectual caliber, and of course, my co-clerks were also wonderful as well, so i thoroughly enjoyed that experience. i don't think he and i were

necessarily so eye to eye, politically, although at that point in my life, that was back in the 1980's, 1987, 1988, i guess i was there, i wasn't particularly politically aware. i didn't think about politics all that much and i think the general atmosphere was less polarized, far less polarized than it is now, so judges and clerks didn't really have to match up. there was no feeling that clerks had to be on the same page, have the same ideas. the notion was that law was this autonomous field that should be depoliticized as much as possible and that was the right way to do it. so we got along just fine, and i have -- i enjoyed that

experience. that was the year, actually, that bork was nominated and was going through his hearings, and little-known fact that bork, who was on the d.c. circuit at the time that he was nominated -- lamb: and so was ab mikva. wax: and so was ab mikva, so they were both on the same court and bork, still, was hearing cases, were very close friends. they had gone to law school together, at chicago. and so, bork was frequently in the office, consulting with ab mikva about the whole ordeal that he was going through. we, of course, the clerks, were not privy to these conversations but it was striking that they, clearly, were very close friends. and i know, robert bork trusted ab mikva, his wisdom and his acumen and his advice. lamb: so how did you get your

job in the solicitor general's office of the -- which president? wax: it was reagan, and charles fried was the solicitor general at the time. this was towards the end of his tenure as the solicitor general, that i was hired. i had been -- i had lucked into a summer internship at the solicitor general's office while i was at columbia law school. i had a professor who was a visiting professor from chicago. he's rather famous. his name is cass sunstein, and prolific. i had taken a couple of courses with him. he had said to me, "it's clear that you love to argue." he said, "you should really think about doing an internship at the justice department in the solicitor general's office because, of course, the solicitor general is the master litigator for the united states government." and everybody in the office had devoted to that mission, and i applied, and i got the job, so i spent a summer there, at the

sg's office, as it's known. i got to know charles fried, i got to know the people in the office, and they asked me to come back on the permanent staff after my clerkship was over. so i was -- i was quite a challenge because i was very green. i was newly minted lawyer. i really didn't have a lot of experience. i didn't have any litigation experience, so i -- it was a little reckless on charles fried's part, but i learned the ropes. i argued 15 cases before the court during my tenure there. i wrote briefs and participated in all the activities, and i really -- it was the most wonderful, the best years of my life. i can honestly say that. the people there were really wonderful all around. they were the smartest people i've ever worked with. they were people of very high integrity. the office is -- has a collegial atmosphere, like none other. we're all involved in a mutual endeavor, which is to do our very best for the government, before the supreme court.

the supreme court trusts the solicitor general's office, and the office tries to repay that high trust, and i think that they do. lamb: so, 15 times, you argued before the supreme court. wax: yes. lamb: do you remember the first time, and what was it like? wax: yes, i do. it was actually quite exhilarating, i think, because it's a grand privilege to argue before the supreme court. not very many people get to do it. it was a rather humble case involving a technical question of social security benefits and how the government collects and refunds social security benefits, but obviously, very, very important to many people because the social security

program is enormous. it's massive, so a lot of money was involved. what struck me about the experience was that, it is a very intimate one. the courtroom is relatively small. the advocates are right up in front of the bench, of nine. in fact, one of the challenges is that, you're so close that it's very hard to see all the justices at once. you have to kind of turn your head and make sure that you're monitoring the situation, and it's really -- it's a performance. that's the other thing you realize, is it -- it is a great training ground for any kind of performance that you will ever have to deliver. and anything in your past life that involved performance, is preparation for it. so when i was an adolescent in troy, and in high school, i was on the piano competition circuit. i was something of an amateur pianist, certainly not of the highest rank, but good enough to participate in these

competitions and occasionally win a competition. and i drew on that experience the most, i think, in preparing to argue before the supreme court because there is this trajectory of focus, of concentration, of preparation, of developing knowledge and expertise, about what you're -- of getting comfortable with what you're about to do, that a foresight and forethought, that, really -- it's a common feature among any kind of performance that you're preparing for and planning. you know? you're supposed to sound spontaneous, but in fact, if you haven't planned every answer to every question, if you're at all surprised, then you've fallen short in your preparation to

argue before the supreme court. lamb: how long have you been teaching at the university of pennsylvania? wax: since 2001. lamb: where is it? wax: it's in philadelphia. it's actually in west philadelphia. it's a private university in west philadelphia. lamb: considered one of the ivy leagues? wax: it is an ivy league school, yes. lamb: how many students and how many professors at the law school? wax: oh, students, i don't know the precise number. i think it's on the smaller side for elite law schools. i think it's something like, oh, maybe 700, 600. that may not be quite as accurate. lamb: that's what it says on the wikipedia site. wax: yeah, that's my guess. and then, for professors, we actually have a relatively small faculty. i think we have 50 tenure, tenure track, full-time facility. and we also have many adjuncts. we have many people from the community, the law community in philly, which is quite a

distinguished one, teaching part-time various courses at our law school. lamb: with that background, let me get to the reason that we asked you to come talk. this is march 18, 2018, this year. it's written by heather macdonald, who's with the manhattan institute, and the headline on it is, "the penn law school mob scores a victory." and just let me read the first paragraph. "the campus mob at the university of pennsylvania law school has scored a hit. professor amy wax will no longer be allowed to teach required first year courses, the school's dean announced last week." i'll stop there. what's that about? wax: well, there's a -- there's a whole saga that leads up to it. i could try to give you the short form. i still haven't figured it all out entirely because i think it

ties into some broader themes of what's happening to our society, generally, and to the university sector, in particular, but i think it all began back last august 9, when i co-published -- little innocuous, i'll bet, in "the enquirer," the "philadelphia enquirer" or so, i regarded it, called "paying the price for the breakdown of a country's bourgeois values." and in it, my co-author, larry alexander and i talked about this bourgeois script that i had mentioned to you, some basic precepts of behavior and how the loss of common fealty and adherence to those behaviors as the hallmark of mature adulthood, which we had identified as taking place over the past 30 or 40 years in our country, and the concomitant,

resulting change in behavior, had we thought inflicted some damage on our country, not being, of course, the only thing happened, but something that was important, that -- in effect, that standards of behavior had declined and that all of us were paying the price for that in various ways. and some of the behaviors we'd talked about was respect for law, criminally, which has leveled off to some extent, although there's question of whether the figures are accurate, but certainly saw a tremendous surge in the 1960's and 1970's, to much higher levels that have prevailed before. the lower work effort that is being put in by some segments of the american societies, such as prime age men, breakdown in the family, of course, that many children in some -- in some quarters -- most children are born out of wedlock. they're not raised in intact

families, that, people have used profanity, quite liberally, that patriotism is out of fashion, that there's an adversarial relationship, very often, between employers and employees. i mean, we sort of made a list and we should've added the decline in thrift and frugality, which is quite dramatic, and all of these put together, have -- we've taken a hit from it. lamb: when did you -- you say you first published it in the "philadelphia inquire." what happened? when did it surface again? wax: well, we also said in the -- in that piece, and i think this is what ruffled a lot of people, that not all cultures are alike. we were trying to tout this code of behavior as being one that was particularly functional and suited to our current technological democratic capitalist society and comparing it to other cultures which aren't as functional.

and we gave some examples, and that immediately caused a firestorm. the very next day, there were protests and petitions. you know, social media, really, contributed so much to this, i think. people were going to my dean and objecting and saying that this was white supremacist talk, racist talk, xenophobic, putting all sorts of labels on it. a group of graduate students issued a statement, condemning me. a bunch of professors at drexel and temple signed a statement, condemning the op-ed as unacceptable, as injurious, as harmful, as racist. i gave an interview to the "daily pennsylvanian," quite unwisely the next day, and that added fuel to the fire. lamb: student newspaper? wax: that was the student newspaper. that added fuel to the fire

because the interviewer basically accused me of being a white supremacist and saying that, you know, whites were superior. i said well, no, i'm -- i very naively tried to correct him and say that's not at all what i'm saying. i'm saying that a certain culture that came out of a european heritage, really an anglo-saxon heritage, the anglosphere, was our heritage and a highly functional heritage, and you know, the functional superiority of it is measured by the fact that everybody wants to live in europe. you know, migrants flock to europe, not to venezuela, not to south east asia. the proof of the pudding is in the eating. we've -- we've discovered something. we've worked something out which works really well. and this came out as, you know, europeans are superior because migrants want to go to europe, which actually is not that far from what i was saying, but many

people found extremely offensive in the current climate. as my husband said, you pushed the western civ button. what i learned is that one is not allowed to praise the achievements of the west. that has become a suspect move in -- in the intellectual game. and that is what people objected to. as far as i could tell, i mean, i am not entirely sure because i am not of that mindset. lamb: this was back in august of 2017. i'm looking at the "daily pennsylvanian" and from august the 20, 2017, and there's a dorothy roberts, a sarah barringer gordon, a serena mayeri, sophia z. lee, tobias barrington wolff. who are they? wax: those are my colleagues and they actually published a --

there were multiple pieces published and letters and protests publish. that piece was actually an attempt by four historians on the faculty to write a substantive response to our piece. i didn't object to that piece, i didn't agree with it at all. i thought it was -- the -- the argument was transparently fallacious. but they argued that praising bourgeois culture in the 1950's, which was sort of the high-water mark of it, or one of them in our country, was -- they objected to that. as far as i could reproduce their argument, their argument was you can't praise the 1950's because the 1950's were a time of patriarchy, racism, sexism, mistreatment of minorities, terrible things happened during the 1950's.

discrimination was rampant, and ergo there was nothing good about it. now i consider that a complete non-sequitur. they seem to be making an argument like the only reason the 1950's were good for the people it was good for is because they -- they mistreated all these other people, which is a very strange argument to make. you know? we have -- if we stop mistreating people, things won't be as good? i -- i don't know what they were trying to get at there. lamb: let me -- let me just for the -- for the -- wax: yes. lamb: this discussion, let me read what they said -- some of what they said. nostalgia for the 1950's breezes over the truth of inequality and exclusion. the racial discrimination, in quotes, and the limited sex roles, in quotes, that the authors identify as imperfections in mid-century american life were in fact core features of it. exclusion and discrimination against people of color was the norm. north and south. during this period, home ownership, high quality education, jobs with fair pay and decent working conditions and the social insurance

benefits of the new deal welfare state remain unavailable by design to most non-white americans. wax: ok. well, i mean as a factual depiction of the 1950's, that is accurate, and we actually said in our op-ed that, you know, there were determents, there were flaws in that period which have since been corrected. but what they seem to be saying which, you know, i disagree with, is that those were core in the sense that the bourgeois virtues and the ability and willingness to practice bourgeois virtues was somehow dependent on keeping all of these people down. now that is a very odd argument, and i don't agree with it.

you know, the virtues of the period and the vices of the period were not inextricably linked in the way that that piece suggests. it is entirely possible, in my mind, to revive and practice some of the virtuous behaviors and cycles that we associate with the 1950's without attaching to it, the kind of discrimination, inequality, and bigotry that the period also exemplified. and, there's -- you can point to an example, so let's take an example. just in the area of family breakdown, right, the upper middle-class today, whites, asians mainly, because minorities have always had weaker families. they, in effect, have 1950's-type family patterns, right. they talk the 1960's, but they live the 1950's. they're married at a very high rate, their marriages endure, their children disproportionally grow up in traditional two parent families.

they're highly conventional in the way that they conduct their family lives, relative to the rest of society. they're kind of this little bastion of the 1950's. they marry later, and they marry after a period of sexual experimentation, and that is a change from the 1950's. but they also believe in diversity and inclusion, they abhor bigotry, they're onboard with the abolition of all forms of nefarious various discrimination and sexism that we have effectuated both culturally and legally. so, that's an example of being able to have it both ways. i think this op-ed is saying you can't have it both ways. why not? lamb: after the pennsylvanian published -- the university of pennsylvania newspaper published these stories and all, when did it hit the "wall street journal," and they published your remarks there? wax: well, i wrote an op-ed for them, it was a couple of months after this initially unfolded.

what happened was, this started up, it spread like wildfire. a lot of people wrote about it, there were a lot of comments. there was a -- a very critical event which was something of a watershed, which was that 33 of my colleagues at penn law signed a letter also in the school newspaper -- the "daily pennsylvanian," condemning and categorically rejecting all of my claims and statements. condemning everything that i had said i guess in this op-ed and subsequently categorically rejecting everything i said. no argument, no reasons given. no logic to it, just a -- an outright bald condemnation and categorical rejection. lamb: 33? wax: 33. and it was instigated by one person in particular.

and i really reacted to that very negatively. i thought this was a fundamental betrayal of academic values. and i don't use the term free speech, because i think that is the wrong term, it's the wrong term for a number of reasons. first of all, the free speech rights that we all value so much do not apply against private institutions, and people forget that. lamb: penn's a private institution? wax: yes. congress shall make no law. and public institutions have to adhere to a free speech code. private institutions can fire you for saying anything they want. i mean, that's -- that's the way that it -- the railroad has always been run. we have this employment at will. so technically i really have no free speech rights. i have tenure, that's something different. and they have the free speech right to categorically reject all my claims. and the students have the right to call me a racist and a sexist

and a xenophobe, and white supremacist. i mean, this is not a matter of rights. lamb: so what happened on a personal basis after this happened? what was it like in the hallways of penn law school, for you? wax: well, it was, i think -- first of all, the 33 people who signed it didn't necessarily treat me in a friendly way. what's striking is that none of them came to talk to me about why they signed it, and after it was released, it was released with very little notice to me,

it was all done in secrecy, it was -- there was not any forthrightness about it. in fact, it was formulated and circulated in a way that was designed to keep me from knowing about it, so that in itself is telling. and after it was published, no one -- one or two people -- one person came to explain to me why he signed it. it became immediately apparent that he didn't really categorically reject all my claims, he didn't really disagree with every darn thing that we had said in the op-ed. i mean, how could they? they raised their own children this way. i mean, the hypocrisy here is stunning, the inconsistency here is incredible. but one person came and said, well, what you said, it was sort of nazi talk. these were very crude rationales for signing a condemnation. lamb: what about the professor that you ran into, i saw in one of the articles, after the summer and asked what kind of a summer did you have?

and can you tell that story? wax: well after this condemnation and a number of conversations that i had had, the few conversations i had had with people on the faculty that were very hostile, very negative towards what i had written. i decided that i would write a piece for the "wall street journal," actually i initially gave it as a speech, an invited speech to hillsdale college, they have a center here, kearney center for constitutional rights. so they asked me to give a talk,

and i recounted my experience and why i thought that people had behaved inappropriately in an academic setting, given what the academy is supposed to stand for, and how they are supposed to conduct themselves, that this whole saga fell far short of that standard. and someone who read that piece said -- sent it to the "wall street journal" and said you really should publish this, because it is a very down to earth, blow by blow, particularized account of what is going on all around the country. the kinds of responses that unorthodox, what's considered a deviation from the progressive catechism, i guess you could say, the dogma, the politically correct line, what kind of response that it elicits nowadays, more and more? so, i wrote this piece for the "wall street journal" in which i recounted my experiences

surrounding this op-ed and the responses i had gotten, and some of the stories i told, the few conversations i had with my colleagues, one involved going up to a colleague on the street in the summer, the summer immediately after i published this a few weeks later, and greeting him and him giving me a hostile look and saying, well, actually my summer's been terrible, and i said why? and he said because of you, because of your op-ed and what you wrote, which i consider an attack on our school, an attack on our students. so, this language of attack, of harm, of damage that by expressing an opinion that people don't like, you have inflicted an injury. i found that very striking, and frankly, rather frightening, if the truth be told, and quite emblematic of the way that the left is now responding to any sort of dissent, and especially one that trenches on identity, grievance, politics, which of course is everywhere and has infected everything. lamb: go back to the dean, and what does the dean -- and what kind of power does the dean have? wax: well, his response to the op-ed was to immediately announce through his spokesperson that, you know, my opinions were not endorsed by the law school, which should be understood. and also, he saw fit to publish

his own op-ed saying, you know, we reject -- i reject the position that one culture is better than all others, which of course is completely unresponsive to what we said, and a distortion of what we said, and that has been a hallmark of this entire saga, has been selective quotation, distortion, restatement, dishonesty of that sort. but in terms of his power, he has the power to assign courses to me and control what i teach and my schedule and the like. i mean, he has a fair amount of power to control my professional life. what he doesn't have the power to do is fire me entirely, because i have tenure, and according to the rules of the professional organization that we're a member of, i guess the american university professors society, the association of

american law schools, and all of these. i have to continue to be employed and i have to continue to be paid my salary, at least my base salary, and the only grounds on which i can be fired, i think, are professional misconduct, egregious professional misconduct, or various forms of criminal behavior. lamb: so what did he do -- how did he level a penalty on you? wax: well, in the immediate aftermath of my initial article, he resisted many calls to both strip me of first year mandatory classes and fire me as a general matter. i think the reason that mandatory classes became the pressure point is that students are assigned to a particular professor in the first year of law school.

there is a fixed curriculum of courses that students have to take, and they are basically told what they have to take and who's going to be teaching it. so that is an exception to the rule in academia that students get to pick what they want to take and the like. i mean obviously, there are requirements for undergraduates as well, but a lot more leeway in deciding who your teacher is going to me. -- going to be. so, the first -- the students thought, well, we shouldn't be required to sit in this woman's classroom. students shouldn't have to be taught by her, because she is clearly a racist, and it is harmful, it is uncomfortable, it is damaging, once again, that language, right, subjective, emotional harm, trauma, this language that all the students have learned to use, the psychologizing of pedagogy. that's damaging to us.

so, a lot of pressure to take me out of the first year. he initially resisted that pressure, i think in part because i am a good civil procedure professor, i'm one of three professors in the entire law school who've gotten a university-wide teaching award, something called the limbock prize a couple of years back. i get very high ratings as a professor, and maybe that was part of the motivation, i don't know. but there was a denouement that the students, especially the black law students association, really set their face against me and they went on a trolling operation to look back through my entire record to find something that would get me removed or fired. and what they found was this five minutes of an interview i had with glenn loury back in september. lamb: let's watch it.

this is 48 seconds, but this is september the 10th. wax: this was my fireable offense, here. lamb: glenn loury runs a bloggingheads tv show that you were on, and you were -- in this you were at penn? wax: yes, and i've been on it several times. i'm one of the guests on his bloggingheads. lamb: and people can get on bloggingheads.tv and watch any of these things. let's just watch the 48 seconds. wax: i mean, take penn law school or some top 10 law school. here's a very inconvenient fact, glenn. 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. i can think of one or two students who have scored in the top half in my required first year course. well, at -- what are we supposed to do about that, that you're really -- you're putting in front of this person a real uphill battle, and if they were

better matched, it might be a better environment for them. that's the mismatched hypothesis, of course. we're not saying they shouldn't go to college, we're not saying that. i mean, some of them shouldn't. lamb: what do you mean by better match? wax: well, i mean that their incoming credentials, law school admission test score, and gpa, that is college grade average, which are the main parameters and criteria that admissions officers use for law school admissions. and law school admissions are highly quantitative, or have been until very recently. the minority students -- underrepresented minority students at top law schools, let's say the top 10, their numbers are significantly lower than the numbers of other students who get admitted and come to the law school.

there is a gap in the scores. lamb: when you grade somebody in your law class, do you know -- when they write -- the old days there used to be blue books that you'd write in, and the professor wouldn't know who it was, i gather, and do you know? wax: no. in the first year, which of course those are the critical grades and by far the most important grades, we have blind grading. it's called blind grading. and that means that the students are assigned a number, they write the number on their exam or their blue book, and i actually give an objective exam now. i used to give an essay exam, and i found that if i asked multiple choice or shorter questions, i still got the same distribution, that that was a very good test of knowledge of how much -- how hard the student have studied, how much they had learned. i have no idea who i am assigning a particular grade to when i assign it. i give it to the registrar, she

registers the grades, and then she un-blinds the list, i find out after the fact who got what grade, but at that point i cannot change the grade. and the reason that they're un-blinded for us, for the professors, of course, is because we are in the position of being asked to recommend students, to tell employers and perspective employers and judges and various organizations that are hiring these people how they did in our class. we have to write recommendations. and if we request it, but we have to request it, we will -- we are even given their rank in class. there are some judges, the most elite and sought after, who want to know where the students rank in the class. lamb: and the school does not publish the grades or the ranking of any of the students in penn law school?

wax: no, they are -- they have become increasingly secretive about the grades. you know, back when i was at harvard law school in ancient times, the grades were posted, we -- everybody -- the rank in class was an open information. the law review was determined strictly by rank in class. our grades were not, you know, confidential, or they weren't considered such, there was no open effort to disclose them, but people thought nothing of imparting that information. lamb: they need to get glenn loury's response to you from that same interview, it's another 40 some seconds. [video starts] glenn loury: do you have a racial diversity mandate for law review appointments at penn? wax: yes, yes. loury: so you're telling me that students of color who have served on law review are pretty much in the bottom half of their law classes at penn?

wax: i would have to -- what i know, i haven't done a survey, i haven't done a systematic study, i'm talking about who gives the honor. i have a big -- i have a class of 89, 95 students every year. so, i see a big chunk of students every year, and i -- so i'm going on that, because a lot of this data is of course a closely guarded secret, as you can imagine. [video ends] lamb: what's the solution to what you're talking about? wax: well, i mean, first, you have to decide there's a problem. and i think -- lamb: does anybody think there's a problem, by the way? wax: one of the distortions that's come out of this little tiny clip, right, which is completely taken out of context, is the conclusion that i am, you know, completely, adamantly and totally against affirmative action and that i have some kind of crusade going about that. well, i don't. i mean, my attitude towards affirmative action, like any

good small c conservative, is it has pros, it has cons, it has cost, it has benefits. it's -- we're not to going to bring about utopia because every benefit has -- every upside has a downside. my view is if we're going to have this kind of social engineering, which is what it is, if we're going to have this policy, we should at least be honest about it and evaluate it on the facts. and it used to be that when people discussed affirmative action and thought about it, whether it was a good idea or a bad idea, they were pretty forthright about the facts. now, they've doubled down and tripled down and decided that even discussing the facts, the actual questions of disparities, of academic achievement going in

and the resulting academic achievement that comes out of it, performance beyond school for affirmative action admits that all of these subjects are verboten. to even talk about them is racist. so that involves you in this bizarre -- so, we've gotten ourselves into this situation of denial as a test of moral virtue. so, this involves us in some bizarre contradictions. i've been talking about this around the country. on the one hand, every good person believes in affirmative action. if you are against affirmative action for underperforming minorities, and we know who we're talking about here, we're talking about blacks and to some extent hispanics, because asians don't need affirmative action, indians don't need affirmative action, other ethnic groups are doing very well. because they're doing very well and in some cases, they're doing

better than the majority white population on standard measures of academic achievement. we're talking about underperforming minorities. you have -- you have to be for affirmative action, but if you get down to discussing why we need affirmative action, which is that blacks and hispanics lag behind in test scores, in academic knowledge and academic performance, even mentioning that is dangerous, because that is considered an insult to students, a denigration, putting them down, an attack, which i consider bizarre. it's not an attack. it's a report. and then to talk about once they get to a very competitive institution, how did they do? is their performance catching up, or does it continue to lag behind?

does the myth of affirmative action, which is the minute you get there, everything is fine, does that myth -- is it a myth or does it actually occur? is there magic dirt for these institutions where we just bring people in all of their deficits are erased? you certainly can't talk about that. it's weird that the dean says on the one hand, everything she is saying is false. everything i'm saying is false? i have a whole filing cabinet of my grades in civil procedure from 20 years and i'm going to sit here and tell you what i said about the performance of black students in my class for the past 20 years is not false. all right? i don't know about the rest of the school, as i admitted, i'm not really privy to this information, because it is kept secret. but on the other hand, he says, we don't keep records by race. we don't even have this information.

so we can't possibly disclose it. well -- lamb: do you believe that? wax: well there is a contradiction there. there is a -- but no one has called him on that contradiction. so, i do not believe that. lamb: what happens -- what happens, you do not believe that they don't know? wax: that they could -- i believe that they could easily compile that information. lamb: so this fall, are you going back to the university of pennsylvania? and what classes are you allowed to teach now? wax: i have no idea what classes i'll be teaching, because the dean has not spoken to me since march 18 when he issued an email to the entire penn community saying he was stripping me of my first-year teaching responsibilities. i have just become, you know, persona non-grata pretty much. lamb: why do you stay there? wax: well, i have a very good job. and they pay me very well. and the other reason i stay is, you know, i get to write, and think, and i have a lot of projects underway right now.

and there is a core of students, i think, who i'm very important to. lamb: would you expect any student to boycott your classes in the fall? wax: yes, i think that is definitely going to occur. on the other hand, i teach -- i teach two classes, one of which is a seminar in conservative political and legal thought, for which there was a waiting list this year. so there are students at penn law who are hungry for a broader exposure to a range of ideas which are more and more systematically excluded from the elite academy. lamb: out of the 50 professors at -- full-time professors in the law school, how many of them are conservative? wax: at this point, well, conservative is a rather musty concept. lamb: how many are right of center in any way? wax: right of center, maybe four.

lamb: is there any concern at the law school -- wax: three or four. lamb: -- in the dean's office about a balance when it comes to -- wax: no, no. i think that the dean -- i don't want to speak for the dean, but i would say that many of people on the faculty think that purging the faculty of people who don't subscribe to hardline progressive ideas, except maybe in the economic sphere where they're willing to tolerate a little bit more range of opinion, that purging a lot of so-called right-wing ideas is a great thing. because those ideas are errant. they are wrong, and they are morally suspect. not only are they false, but they're immoral. i mean, this is a new era that we have now that opinion has become moralized and dissent is

a kind of insult or an assault or an attack. so, we have a whole new rhetorical universe, right, in which moralization and the language of harm has become the language of discourse in ideas. lamb: amy wax is a professor of law at the university of pennsylvania. she also has a medical degree in neurology. and all what we've talked about today is online. you can find it through google, among other places, all your op-ed pieces. and we thank you very much for joining us. wax: well thank you. ♪ >> all q&a programs are available on our website or as a podcast at c-span.org.

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