Law professor Amy Wax is one of the most outspoken and fearless conservative professors in the country. As such, she is under constant attack from the far-left forces that dominate higher education. The following conversation took place earlier this year, in the wake of the University of Pennsylvania administration’s latest effort to cancel Professor Wax over her remarks on immigration made during a podcast with Brown University’s Glenn Loury (whom Chronicles has also recently featured).

I asked Professor Wax about the effects of affirmative action on the culture and content of higher education and on the broader American society.

Alex Riley (AR): Affirmative action seems in American society to have been accepted as a policy in perpetuity—at least at the level of the elites—even if there is widespread disagreement with that at the level of the masses. How has this entrenched policy affected the life of the mind?

Amy Wax (AW): If affirmative action was just a bunch of underprepared students coming into the university, there’s some negative fallout from that, but at the end of the day, it’s no biggie. Somebody’s got to be at the bottom of the class. You’ve got this distribution. Even at a place like Harvard, they can tolerate people who are not quite up to speed as long as they’ve got that 30 percent of the class, the academic admits, chugging along. But the dire effects of affirmative action go way, way beyond that. They’ve destroyed everything by insisting that affirmative action is necessary—which of course wouldn’t be the case if there weren’t these gaps in achievement—and then turning around and insisting that there are no gaps in achievement and ability. That horrible contradiction has deformed absolutely everything in academia.

It has generated this code of political correctness which is a straitjacket of the most constricted kind. There’s a paradox, because the point of affirmative action was to broaden the discourse, to bring in new ideas, have people be exposed to and discuss various notions and experiences. But of course it’s had totally the opposite effect, severely limiting what can be said, what can be thought, what can be concluded, the research that can be done. Here’s what it amounts to: when you go to faculty presentations, they’re all the same—except if they’re about some very technical issue. Otherwise, it’s all “Racism racism racism … blah blah blah … racism racism racism … blah blah blah.” It’s so incredibly boring. Hard to sit there for 45 minutes when you know what the only acceptable conclusion is.

They’re obsessed with disparities. So many of the presentations are about disparities, and for disparities there’s only one acceptable explanation. That is the cookie-cutter paradigm for every “research project.” Even in the sciences. My husband is a cancer doctor, and he has told me that at a top program in oncology, more than half the fellows are doing disparities research. Are they trying to come up with new cancer therapies? Are they trying to advance our understanding of cancer biology? Are they trying to discover new facts about how cancer behaves and how we can treat cancer? Are they trying to accumulate painstakingly the evidence for various methodologies, drugs, treatments? No, that’s hard work. Let’s just rearrange the deck chairs on the Titanic and take inadequate therapies and make sure they’re equally distributed, even though they have benefits that are barely measurable, whereas the real advances over the past 30 or 40 years in cancer medicine have saved untold numbers of lives.

That could not have happened with disparities research. You’re taking a significant percentage of our best and brightest, and you are shunting them into these faddish topics which are the path of least resistance. Who can blame them? You have a government system of granting that generates perverse incentives. NIH is now obsessed with disparities research, equity and inclusion, and discrimination. And not just in what people investigate but in promoting minority scientists and physicians whose track records, test scores, and publications are woefully and glaringly below those of unpromoted non-minorities. You don’t dare to point it out because you will lose your job.

A lot of the people who are doing this kind of work are simply not up to doing anything more demanding. Doing real scientific work is damned hard. It is very intellectually demanding; it has a high failure rate; it requires an enormous amount of dedication and devotion and time and energy and determination and talent. We are shunting aside the best and the brightest to bring forward people who are not.

AR: In terms of legal policy and how we set standards not just for academia but for hiring and promotion in other spheres, what should we be doing instead of affirmative action?

AW: In Charles Murray’s new book, Facing Reality, he talks about the American creed, which is color-blind and impartial. We should abandon affirmative action and return to some notion of the meritocracy. This is, of course, a controversial idea these days. But even though meritocracy is imperfect—there’s nepotism, for example—at mid-century in this country, it was pretty much a meritocracy. We had ways of evaluating people that gave us confidence in their ability. We should go back to the American creed.

What should we do about disparities? What should we do about different abilities of different groups? My first answer—this is just the first cut—would be: Nothing! Let it happen. Naturally, we will get some diversity through the operation of the meritocracy. Of course, we’re going to see Asians advance. We’re going to see various groups advance, and other groups will not advance so much. There will be discrepancies, and they will get worse because the ability differences are pronounced.

People will say “Well, we can’t just do nothing, we can’t just let this happen!” I think there are two things we could do that would mitigate, though not eliminate, these group differences.

First, change the education system. Not in a way that’s going to produce parity, but in a way that is going to raise the floor so that we at least have a critical mass of people who have basic skills and basic knowledge of our system of government, of history, of our legacy, of our strengths, why they should be proud of being American, and why they should assimilate to what is basically an Anglo-Protestant/Eurocentric culture. I think we could dramatically improve the education system in part by just going back to what the education system was in the past, which was skill-based and patriotic.

When I say to people that we ought to be teaching students about all the incredible advances that Western society has introduced, that all of modernity is a creature of Western society, they say “Oh my God! That’s so chauvinistic!” But chauvinism means “excessive pride.” I don’t think the pride that we have in what dead white males have accomplished is excessive because we all enjoy the fruits of what they have done. The fact that all groups have not contributed equally is something we just have to face up to.

The second thing I would change goes to the argument in chapter 22 of Murray’s The Bell Curve, which, disappointingly, he does not reiterate in Facing Reality. So what did chapter 22 say? It said that people of middling or even less than middling intellect need strong guidance, strong norms of conduct, of expectation, of respectability, and of adulthood. They need a strong, clear, simple set of rules about how they should live their lives. The success sequence: graduate from high school; obey the law; get married before you have children; work hard at something, and don’t be idle. Just those four rules would take us a very long way.

AR: Valorizing the bourgeois virtues?

AW: Yes. Honesty and industriousness, continence, moderation, trustworthiness. You know, all that good old-fashioned stuff that I wrote about that got me into trouble!

We’re just ridiculous about this. Smarter people can figure it out and engage in self-direction. They have high executive function; they can tolerate a few mistakes and missteps and still right themselves and recover. What they typically figure out is to get married, to stay married, all this bourgeois stuff. Demographically, they’re the most likely to do that. They often talk the 1960s and live the 1950s.

We could create a stronger and more organized, more orderly, more stable society even for people who aren’t that smart. These members of our society would be in far better shape if we insisted upon adherence to the tried and true values. But we’ve gone in exactly the opposite direction, from liberty to license to laxity to terrible irresponsibility to paternal abandonment as a norm that can never be judged–to sexual irresponsibility of the worst kind, to idleness, to lawbreaking as some kind of protest rather than what it is, which is anti-social behavior, pure and simple. That’s just the opposite direction in which we should be going. We can’t much raise IQs, but we can make people with lower IQs behave better.

So back to chapter 22 of The Bell Curve. I have my students read it. It says intelligence isn’t everything. Virtue is more important than intelligence. Virtue can make up for a lack of intelligence. If you wanted to state it in a sound byte, that’s pretty much it.

AR: A reasonable charge could be made that the chief destructive quality of the woke left is its prejudice about intelligence. They seem to hate people on the left side of the IQ distribution, unless those people can be infantilized as helpless victims that we can aid. The woke left implies–and sometimes says explicitly–that intelligence is everything, so nobody who’s not on the right side of the IQ bell curve can be expected to do anything useful, to be productive, to have a good life. Unless we just pretend that everybody is on the right hand side of the bell curve!

AW: Yes, the left are not a model of consistency, that goes without saying! They valorize intelligence when it behooves them, and then they turn around and deny that there is such a thing as intelligence except as we construct or produce it through our prejudice and our grossly unequal policies. So the only reason there are differences in intelligence is because we have the wrong policies and the wrong institutions. If we only put things right, none of that would occur. Do they think everybody would be smart or that it wouldn’t matter whether they are or not? They talk about how intelligence is socially constructed by unjust societies, but they foam at the mouth about their kids’ SAT scores.

And the one insult they love nearly as much as “racist” is “stupid.” Stupid equates to holding certain political views, being on the right, having voted for Trump. My husband tells the story of how back in the 2016 election, he told a colleague that he wouldn’t dream of voting for Hillary Clinton, and the colleague said, “I used to think you were smart!”

At the extremes, we get statements like from journalist Deborah Solomon, who interviewed Charles Murray and said, “I believe that given the opportunity, most people could do most anything.” And Murray responded, “You are out of touch with reality.” Some people are apparently sincere in believing something that fatuous and silly. It’s an alternate universe. I have three kids. Just to have three kids makes it impossible to believe what Solomon said. In any family, there is a fair amount of range of IQ as well as personality traits, all sorts of stuff. And you just see it.

AR: What do you think about the Harvard affirmative action case that the Supreme Court has now accepted and agreed to hear?

AW: I am not at all sure what is going to happen. There are really two questions. One is “What will the Court do?” The second is “How will the universities squirrel their way around what the Court does, which they surely will try to do, using all the devices and cleverness at their disposal. So the question is whether it will even matter what the Court does or says in the affirmative action case. They have a whole range of options for what they could do in that case.

I’m writing a piece on this right now, on what the possibilities are for what the Court decides. They might just go all the way back to Bakke and Grutter and overturn the whole line of precedent. Just say, “This was a mistake from day one to recognize diversity in universities as a compelling interest that overcomes the color-blind ethic of the Equal Protection Clause.” Title VI is much more explicit than the Equal Protection Clause. The Court could tighten up on Title VI and say, “Title VI certainly doesn’t allow this even if the Equal Protection Clause arguably does.” So it could be very sweeping.

They could say that the universities have never actually proven pedagogical benefits of diversity. We need something much more rigorous than we’ve gotten. Basically, what we’ve gotten have been surveys and self-reports, which are trash. So the Court could say that you have to prove this benefit, and there’s no way the universities can do that. The other thing the Court could say is that there are race-neutral mechanisms such as Texas’s “Top 10% Plan,” for example, that can accomplish diversity without looking at race, so you have to try that first.

The Court could say, since this is the first case involving a private university, that if Harvard wants to discriminate on the basis of race, then it can stop accepting federal funds because Title VI says if you’re private university and you accept federal funds, then you have to have this line of non-discrimination. But it never says that you can’t discriminate if you don’t accept federal funds, because there is this public/private divide in our law that’s still fairly robust. There are a lot of different options.

The one thing that drives me crazy about the Harvard case and the commentary surrounding it and the way it was litigated, is that Harvard spent so much time and energy trying to prove they don’t discriminate against Asians, which is laughable.  Discriminating is the whole point of affirmative action. When you have two or three groups with wildly different average academic achievement rates and scores, to get more of the lower-achieving groups, you have to have fewer in the high achieving ones. There’s no other way to do it. This is logic. But then the Harvard admissions director gets up and says, “We don’t discriminate against Asians”! You don’t need to say that because the cases give you permission to discriminate.  

I am going to be interested to see what kinds of arguments Harvard makes.

AR: Yes, it’ll be interesting to see what they do. Amy, this has been wonderful. Thanks so much for making time to talk with me today.

AW: Thank you! It was my pleasure.

Image: A 2018 protest in Boston’s Copley Square: Students for Fair Admissions against Harvard. (Whoisjohngalt, CC BY-SA 4.0, via Wikimedia Commons)