The Volokh Conspiracy
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No Preliminary Injunctions Against Penn's Sanctions on Prof. Amy Wax
"[W]hatever harm she claims, it is not imminent, irreparable harm. Her damages, if any, are monetary damages."
From today's decision by Judge Timothy Savage (E.D. Pa.) in Wax v. Univ. of Pa.:
After a lengthy disciplinary process, the University of Pennsylvania ("Penn") found that longtime law professor Amy Wax had engaged in "flagrant unprofessional conduct." It imposed sanctions of a one-year suspension at half pay, loss of summer pay in perpetuity, loss of her named chair, and a public reprimand.
Wax brought this action asserting breach of contract (failure to adhere to the disciplinary process prescribed in the Faculty Handbook); racial discrimination under Title VI, Title VII, and 42 U.S.C. § 1981; and false light invasion of privacy. She seeks a preliminary injunction enjoining Penn from implementing the sanctions….
Wax joined the faculty of Penn Carey Law School as a tenured professor on July 1, 2001. Five years later, she was named the Robert Mundheim Professor of Law. On March 2, 2022, Dean Theodore W. Ruger sent Wax a letter charging that she had "shown a callous and flagrant disregard for [the] University community" and inviting an informal resolution. The letter cited the following instances of Wax's conduct:
- When asked by a Black student if she agreed with the claim that Black people are inherently inferior to white people, Wax responded: "You can have two plants that grow under the same conditions, and one will just grow higher than the other."
- Wax asserted on a panel that "our country will be better off with more whites and fewer nonwhites."
- Wax told the New Yorker that "women, on average, are less knowledgeable than men" and "less intellectual than men."
- Wax publicly described Black people as having "different average IQs" than people of other races, such that "Blacks are not going to be evenly distributed throughout all occupations" and that this phenomenon is "not due to racism."
- Wax asserted that "the United States is better off with fewer Asians" and that Asian people lack "thoughtful and audacious individualism."
- Wax told a Black colleague that it is "rational to be afraid of Black men in elevators."
- Wax, speaking on a panel with a gay colleague, asserted that "no one should have to live in a dorm room with a gay roommate," and separately stated that same-sex relationships are selfish and not focused on family or community.
- Wax stated on a podcast that she "often chuckle[s]" at advertisements that show interracial marriages because "[t]hey never show blacks the way they really are: a bunch of single moms with a bunch of guys who float in and out. Kids by different men."
- In an appearance on Tucker Carlson Today, Wax asserted that "Blacks" and other "non-Western groups" harbor "resentment, shame and envy" against Western people for their "outsized achievements and contributions even though, on some level, their country is a shithole."
[The administration imposed various sanctions, including "a one-year suspension at half pay, the loss of the named chair, the loss of summer pay in perpetuity, and a public reprimand." -EV] …
We may only grant preliminary injunctive relief upon a clear showing that irreparable harm is likely. There must be more than a mere risk of irreparable harm. Wax must show that harm, which cannot be remedied after trial, is likely…. Wax argues we should presume irreparable harm because the Third Circuit has recently "presum[ed] that First Amendment harms are irreparable." This is not a First Amendment case. It is a breach of contract case.
Wax contends that two of the sanctions will result in irreparable harm—the one- year teaching suspension and the directive in Provost Jackson's public reprimand that she "refrain[] from flagrantly unprofessional and targeted disparagement of any individual or group in the university community."
Wax claims the sanctions damage her reputation. As evidence of irreparable harm, she points to the cancellation of a scheduled radio appearance and an attempted cancellation of a speech at Yale. However, she has not shown any connection between those incidents and the sanctions. She also has not shown that the cancellation and attempted cancellation were not simply a result of her more widely publicized views. {The radio station appearance was canceled because of "the harmful nature of Amy Wax's statements" which led to discipline, not the discipline itself. Yale did not attempt to cancel her appearance. A student group at Yale called for her speech to be canceled and cited the sanctions in this request. Yale did not cancel the appearance or speech.} …
Wax has failed to show that harm to her reputation is imminent. What effect the sanctions may have on her reputation has already occurred. She has been publicly disciplined and reprimanded. The sanctions have been publicized. Her suspension was announced. An injunction will not erase that record.
Wax's claimed harm to her career is speculative. She contends she will be prevented from engaging on issues that are in the public square. She claims that the sanctions negatively impact her ability to engage in national conversations around immigration, DEI, and affirmative action. She has not shown that a suspension would impact her speaking opportunities. Nor has she shown how a suspension would change an outside group's decision to host her as a speaker. She has made public statements about her discipline in numerous public appearances that shape the public's perception of her.
{Wax refers to the "stripping of her title." We assume she is requesting that we order Penn to restore her named chair while the case is pending. She has not shown how she will be harmed in the coming months by not having the title. She has not argued that the loss of the named chair specifically harms her reputation or opportunities. Further, she has been without the named chair for almost a year now.}
Wax also argues she is harmed by the suspension because it will prevent her from teaching for a year. That is not irreparable harm. She will lose half her salary. Her harm is monetary.
Wax also complains of Provost Jackson's directive that she "refrain[] from flagrantly unprofessional and targeted disparagement of any individual or group in the university community." She claims that this directive limits her speech on national issues. The reprimand is limited to comments directed at individuals and groups "in the university community." It does not address speech directed at those outside the university.
Wax seems to be asking us to prohibit Penn from disciplining her in the future. She claims that Penn has threatened her with termination if "she engages in disfavored political speech." She says this "threat" has chilled her speech. Future discipline is not imminent and it is speculative. She has not pointed to any statements by Penn that support her assumption that Penn will discipline her again. Even if she did, we cannot enjoin Penn from disciplining her for possible future infractions.
The publicity already generated in this case may contribute to the public's perception of Wax. However, she has not proven that Penn's sanctions are responsible for that perception or that pausing the suspension would have any impact on it. As we know, she has publicly discussed the sanctions. In short, whatever harm she claims, it is not imminent, irreparable harm. Her damages, if any, are monetary damages….
Michael Banks, Klair Fitzpatrick, and Arielle Steinhart (Morgan, Lewis & Bockius LLP) and Joe Tucker (Tucker Law Group) represent defendants.
