Guest Post, by Jonah Gelbach, University of Pennsylvania Law School

[Prologue, from Jon Haidt: On August 9, Amy Wax, a law professor at Penn and a member of Heterodox Academy, published an essay (with Larry Alexander of the U. of San Diego Law School) titled Paying the price for breakdown of the country’s bourgeois culture. In response to that essay, and to Wax’s comments in a subsequent interview, 33 of Wax’s colleagues on the law school faculty published an Open Letter to the University of Pennsylvania Community.

I thought it was perfectly appropriate for professors to criticize and rebut each other’s substantive claims, but I thought it was a bad precedent for professors to issue or sign on to open letters that amount to public denunciations of their colleagues. So I wrote a defense of Wax and a critique of the letter writers and the open letter process. Please see that post first: In Defense of Amy Wax’s Defense of Bourgeois Values

A few days later, Jonah Gelbach, one of Wax’s colleagues, who had been the initiator of the Open Letter, wrote to me to request that I edit my post to include more text from the open letter, to portray its argument more fully, which I did. In the course of our email exchanges Professor Gelbach mentioned that he was writing a full and substantive response to Wax’s initial essay, and asked if it might be possible to publish it here at Heterodox Academy. I said yes. (Normally the blog is for members, but we do at times welcome guest posts, particularly when they are responses to posts on this blog.)

Below I post the text of Professor Gelbach’s response. The text is as he sent it to me on Sept. 14, with the exception that I asked him to edit or remove a section where he reported the contents of an email exchange he had with Wax in which she had asked not to be quoted. Gelbach and I disagreed as to whether he was warranted in reporting the exchange using paraphrases, as he notes in the place where text was removed (shown in italics in section I.A).

I offer my own brief response to Gelbach’s part IV at the end.]

Facts v. Wax
By Jonah B. Gelbach
Professor of Law, University of Pennsylvania Law School
First submitted Sept. 14, 2017; published Sept. 21, 2017

As is by now well known, my Penn Law colleague Amy Wax recently co-authored a controversial op-ed published at Philly.com with University of San Diego law professor Larry Alexander; for brevity, which is in short supply in this post, I’ll generally call this just the “op-ed” and refer to it as Professor Wax’s, except when it is especially relevant to refer to Professor Alexander. Professor Wax subsequently gave an interview to the Penn student newspaper, the Daily Pennsylvanian, which led to an article that fueled the controversy; henceforth, I’ll call this the “DP interview”. Much more has transpired, including a number of critical columns and other statements, as well as various tweets and posts in support of Professor Wax and articles with quotes from or extended interviews with Professor Wax.

This post will focus principally on the op-ed and the DP interview, as well as an open letter to the Penn community that I signed along with 32 other colleagues of Professor Wax’s; henceforth, I’ll call this the “Open Letter”. As a matter of full disclosure, I note that I was the organizer of this letter and took ultimate responsibility for creating and finalizing its contents.

Part I of the post details a number of problems with empirical claims in Professor Wax’s statements. Part II discusses the unfortunate claims about cultural superiority that led me to organize the Open Letter and also refutes several criticisms of the Open Letter; if you’ve been especially critical of the Open Letter’s form or substance, then this part is for you. Part III addresses Professor Wax’s statements at the level of life advice; if you think Professor Wax and her supporters are obviously right about the Good Life, especially as regards marriage and child rearing, then read this part. And Part IV responds to various claims that criticism of Professor Wax’s statements poses a danger of free expression; if you think the hordes attacking Professor Wax are a danger to free expression, then please read this part.

This is a long post—more than the 15,000-word limit on a merits brief at the Supreme Court. But in the careful-what-you-wish-for spirit, I hope that those who have criticized the Open Letter for not including a refutation of Professor Wax’s statements on the merits will do me the courtesy of reading to the end—or at least reading Part I’s discussion of (some of) the many problems with what Professor Wax wrote and said. If all you’re willing to read is a somewhat detailed outline and summary of all those parts, read this outline and summary of my arguments.

If you’re still reading at all, it will be helpful to distinguish three different levels at which the op-ed and DP interview statements operate:

(1) At one level, the statements appear to reflect personal values and intuitions of Professors Alexander and Wax. The existence of this level might explain why in interviews Professor Wax says things like “right now the upper-middle class is living the ’50s and preaching the ’60s, and I think they should either just shut up, and stop pushing these radical progressive ideas or they should start preaching what they’re practicing.”

(2) At a second level, Professor Wax made a number of empirical claims in the op-ed and the DP interview. For example, they claimed that starting in the late 1960s, “A combination of factors — prosperity, the Pill, the expansion of higher education, and the doubts surrounding the Vietnam War — encouraged an antiauthoritarian, adolescent, wish-fulfillment ideal,” which for some reason were “unworkable for, a mature, prosperous adult society.” Reading the statements in full—which, it seems possible, neither all critics nor all defenders of Professor Wax have done—left me with the unavoidable impression that Professors Alexander and Wax were blaming a variety of “society’s pathologies” on the breakdown of “bourgeois values”.

Here’s an example of a pair of sentences that I don’t think can be read any other way: “Would the re-embrace of bourgeois norms by the ordinary Americans who have abandoned them significantly reduce society’s pathologies? There is every reason to believe so.” Someone who says things are bad now because people no longer do the good things they used to do is making a causal claim.

Because Professor Wax’s statements are full of such causal claims and implications, they are testable with data. As I discuss below, many of these claims fit poorly with available empirical evidence, and some are outright contradicted by the facts.

(3) The third level is a set of assertions about culture and race.

Professor Wax’s supporters have generally cited level 1—“Don’t you want your kids to get married before they have children?” In some cases they have suggested that Professor Wax’s statements should be taken seriously on level 2 as well, due to the view of supporters such as Professor Jon Haidt and Heather Mac Donald that Professor Wax is an expert on various matters of social policy. As its short text shows, the Open Letter was responding to level 3.

I hope readers will keep in mind the distinction between these three aspects of Professor Wax’s statements as they read what follows. The distinction is important, because it is possible to think it’s a good idea for people to follow some or even all of the values that Professor Wax promotes (level 1) even as one concludes that Professor Wax is wrong on many facts about the causes and consequences of social change (level 2) and also believes that her assertions about race and culture (level 3) are beyond the pale. I think a lot of the noise around Professor Wax’s statements, and the Open Letter, result from conflations of these three levels.

Outline and More Detailed Summary of this Post’s Argument

Part I considers the merits of some of Professor Wax’s op-ed and DP interview statements with respect to level 2—her empirical claims about the causes and consequences of various social facts over the last half century or so. This Part provides many examples of problems—methodological, empirical, historical, and logical—with these statements.

The first example, which I discuss in great detail, involves her claim in the op-ed that “Among those who currently follow the old precepts, regardless of their level of education or affluence, the homicide rate is tiny.” This claim is unsupportable with any source of data of which I am aware. My discussion includes some evidence on the trend in the nationwide homicide rate, which is inconsistent with Professor Wax’s story of steady social decline.

Part I also provides numerous other examples of level 2 failures, showing that Professor Wax’s:

• claims about international migration don’t support her argument, regardless of whether her premises are true;
• claims about the effects of welfare programs on family structure are contradicted by decades of evidence by experts in the field;
• ascription of “color-blind aspirations” to Rev. Martin Luther King, Jr., contradicts not only the most famous sentence of his “I Have a Dream Speech” but also easily Googled statements he made with respect to the question of public obligations to compensate people of color for hundreds of years of racial discrimination.

These are just a few things Professor Wax gets wrong; I discuss several others as well.

Part II then addresses level 3—the claims about culture and race. First I provide a fulsome description of Professor Wax’s statements on these topics—one that has been missing from many positive accounts that have focused on her level 1 or level 2 claims. Then I explain what I think is the reason so many are upset with Professor Wax: she has claimed that the “bourgeois culture” of those who were politically and socially dominant in 1950s America is superior to other cultures, explicitly tying that superiority to the supposed desire of “everyone” to move to “countries ruled by white Europeans”. A lot of people seem find that racist.

The rest of Part II responds to several criticisms of the Open Letter. Part II.C explains why it was appropriate not to provide some sort of detailed argument Professor Wax’s statements. Professor Wax’s level 2 statements were backed up by no evidence at all, and indeed are erroneous in many respects. And in my view, the point of the Open Letter was simply to make a public statement of condemnation of Professor Wax’s culture-related statements, placed in appropriate context. Further, on this point, Professor Wax’s behavior both before and since the Open Letter’s publication is inconsistent with any suggestion that she is willing to engage in a debate on the merits with her critics: she ignored a column published by five of her colleagues before the Open Letter, she has refused to engage on the substance of another one published at Heterodox Academy just afterward, and when I sent her an earlier version of this post she told me she didn’t have time to read it and wouldn’t for a while, due to the beginning of the academic semester (and the slight response she did provide to my request for empirical support for one of her claims hardly indicates she is interested in a debate on the merits about anything).

Throughout this period Professor Wax has continued to do popular media interviews, and she did find time to publish a guest column in the DP after the Open Letter, but without responding to those who had addressed her level 2 claims. No one can—or should be able to—stop Professor Wax from spending her time in the popular media, ignoring what I and others write on the merits, or providing dire warnings to “those who depart from received wisdom at Penn” that they “are vulnerable.” But if that’s her response to those critics who do engage her many problematic level 2 claims, Professor Wax has no leg to stand on when she claims an interest in reasoned debate.

The remaining sections of Part II explain why critics err when they suggest that the Open Letter inadvertently endorses Nazism and explain why the Open Letter’s closing paragraph was appropriate and should be embraced by those on all sides, including conservatives.

Part III then engages Professor Wax on her life advice claims. There I acknowledge agreement with some of Professor Wax’s recommended behaviors and disagreement as to others. More important, I explain why the right response to Professor Wax’s simple marriage-is-good claims is not that she is right or wrong, but rather “it’s complicated.”

Part IV addresses claims by Professor Wax, and some of her defenders, that criticism of her speech has made it dangerous for people to express opinions like hers. Professor Wax and these defenders fail to credit a simple fact: criticism is a form of expression, too. No principled reason exists why Professor Wax should be entitled to express her views in public fora and then benefit from a safe-space bubble of protection from others’ reactions.

Her critics’ right to express themselves would exist (i) even if Professor Wax had provided real and convincing evidence to support her views; (ii) even if her critics do nothing but disagree without addressing such evidence; and indeed (iii) even if her critics provide erroneous evidence or use language as mean-spirited as Professor Wax’s own was in places. I might not like that last approach, and I have tried—hard—to refrain from engaging in it, because I don’t think it aids reasoned debate. But whatever mode of speech one’s critics might employ, no one—not even Amy Wax—has a reasonable expectation of immunity from negative reactions to his or her speech, be that speech brilliant or argle-bargle. Finally, in light of their view that her critics’ expression creates a dangerous environment, Professor Wax and her allies should reflect on the corrosive impact her own initial expressions might have had on many in our community.

I. A (Necessarily Partial) Refutation of Professor Wax’s Claims

I’ll turn now to a direct engagement with Professor Wax’s empirical claims—in other words, level 2. I won’t make every criticism I could, nor document each of the many problems I do address as fully as one could. But I think the rest of this Part makes clear that in the space of an op-ed and a few sentences of interview about that op-ed, Professor Wax managed to make a substantial number of methodological, empirical, historical, and logical errors.

A. Professor Wax Offers No Basis for Claiming the Homicide Rate is “Tiny” Among “Those who Currently Follow the Old Precepts”

One sentence in Professor Wax’s op-ed that has not come in for much criticism, but to which more people should pay attention, is this:

“Among those who currently follow the old precepts, regardless of their level of education or affluence, the homicide rate is tiny, opioid addiction is rare, and poverty rates are low.”

Professor Wax offers no evidence for these claims. And when I read them, I strongly doubted she could. Why? Because I don’t know of high-quality data sources that simultaneously collect information on whether a person “follows the old precepts” and either homicides, opioid addiction, or poverty.

Let’s home in on the homicide rate claim. The homicide rate in a given period of time is understood by those who study crime to equal the number of homicide victims during that period, per 100,000 people in the area in question. The U.S. Bureau of Justice Statistics explains that there are two counts of homicides in the U.S.—the FBI’s Uniform Crime Reporting (UCR) program and the CDC’s National Vital Statistics System (NVSS). The UCR data provide information on victims’ age, sex, race, and ethnic origin. I paged through all 152 variables available in this data set. So far as I can tell there is no “follows the old precepts” variable in the data set, nor anything like it. Similarly, the NVSS Fatal Injury Reports online data system has variables relating to age, sex, race, and Hispanic background, but nothing that seems much like “follows the old precepts”.

So I wondered: exactly how does Professor Wax know that the homicide rate is “tiny” among “those who currently follow the old precepts”? I decided to ask Professors Alexander and Wax. An earlier version of this document contained an account of their response. The blog editor, Professor Haidt, related to me that Professor Wax strongly objected to my account. The result was that Professor Haidt told me he would not publish this document unless I removed that account. I stand by every word I wrote and contest his decision in the strongest terms. But in the interests of making the rest of the points in this post now, I have removed the account in question.

Now I will do what Professors Alexander and Wax didn’t and provide some empirical facts about the homicide rate. One can obtain the FBI’s UCR crime data on the rate of murders and non-negligent homicides—henceforth, just “the murder rate”—from an easy-to-use FBI website. Based on the data from 1960 to 2014 (the widest range available on the site) I calculated the rate of murders and non-negligent homicides per 100,000 people.

The data indicate that the murder rate climbed sharply after 1963. Taken in isolation, this fact seems partially consistent with the overall story told by Professors Alexander and Wax—one of monolithic social collapse starting in the mid-to-late-1960s. But then the murder rate peaked in 1975 and cycled up and down for a while, including a boomlet throughout most of the 1980s, before commencing a long and pronounced decline over the years following 1993. As of 2014, the murder rate stood at 4.5 per 100,000—slightly lower than 1963’s trough of 4.6. The FBI’s 2015 data show a rise to 4.9 per 100,000 in 2015, equal to the rate in 1964, before the end of the hegemonic period of “bourgeois culture” that Professors Alexander and Wax identify.

These trends are as widely known by experts in crime statistics as they are undiscussed by Professors Alexander and Wax. Criminologists and other experts who study the murder rate have struggled to understand the causes of these patterns, which are undoubtedly complex. I don’t know exactly what explains these patterns, but the “bourgeois values” story Professors Alexander and Wax offer seems no more convincing to me than would be the claims that the murder rate fell because Richard Nixon resigned (though it did fall after that), that it increased because Ronald Reagan was re-elected (though it did increase after that), that it fell because Bill Clinton took office (though it did fall after that), that it stopped falling because George W. Bush took office (though it did stop falling for several years after that), or that it resumed falling steadily in 2008 because the financial crisis made it likely the Democrats would take the White House (though it did start falling after that and continued to do so until it increased in the next-to-last-year of President Obama’s second term). None of these, including the demise of “bourgeois values” in the mid-1960s, is a serious candidate explanation for trends in the murder rate.

B. Professor Wax’s Migration Claim Doesn’t Support Her Claim About “Countries Ruled by White Europeans”

Professor Wax’s claims related to international migration involve a logically flawed argument. Let’s review her basic story, which goes like this:

1. Things were, on balance, really good from the late 1940s until the mid-1960s, because we had the hegemony of the “bourgeois culture”.
2. From the mid-1960s forward, various social forces and actors screwed everything up in a bunch of ways.
3. If only the bad actors of (2) would give up their bad acts and celebrating “bourgeois culture” like people did in the 1950s, we would get back to (1), when things were really great. If the historical and empirical premises of this argument were true, it would be sound. But instead of demonstrating the truth of (2), in the DP interview Professor Wax asserted that:
4. “Everyone wants to go to countries ruled by white Europeans.”

Note the present tense: Everyone wants. Not everyone wanted. That distinction hints at a problem already pointed out by another Penn Law colleague, Jon Klick, in a September 4 post on the Heterodox Academy blog:

“If, as Wax and Alexander suggest in their original op-ed, the US began to deviate [(2)] from its winning cultural recipe [(1)] in the late 1960s, their empirical prediction should be that there is less demand to get into the US today than there was in the glorious 1950s.”

If Professor Wax is right that the reason people want to come to “countries ruled by white Europeans,” is the superiority of the lost Anglo-Protestant culture, then all else equal there should be less demand to move here than there used to be. The claim that such demand is presently high—whether true or false—is beside the point.

C. Why Is the Male Working-Age Labor Force Participation Rate Low?

One of “society’s pathologies” that Professor Wax thinks would be “significantly reduce[d]” is the present low level of the male working-age labor force participation rate.

It is true that this rate is low by historical standards; indeed, it has been falling for many decades. It is worth noting that overall labor force participation trended up, rather than down, and did so substantially between the early-1960s and the mid-1990s. (See Figure 1 at page 70 of this Brookings paper by economists Stephanie Aaronson, Bruce Fallick, Andrew Figura, Jonathan Pingle, and William Wascher.) This pattern in large part reflects increased labor force participation by women over the time since the “period of bourgeois cultural hegemony.” Greater labor force participation by women increases their economic independence, so this trend seems to me to be a good thing, even if the cultural hegemons of the 1950s wouldn’t have supported women’s full participation in the paid labor force.

Still, Professor Wax is hardly the only one worried about the trend in the male working-age labor force participation rate. A report issued by President Obama’s Council of Economic Advisers in June 2016 (the “CEA report”) explains that this decline “is particularly troubling since workers at this age are at their most productive; because of this, the long-run decline has outsized implications for individual well-being as well as for broader economic growth.” (See page 2.) Unlike Professor Wax, the CEA considers a variety of explanations. Its discussion suggests that Professor Wax’s story fares poorly in light of observed trends in wages.

Professor Wax’s explanation of declining male working-age labor force participation is that social collapse has led to declining labor supply—“idleness,” to use her word. Yet evidence indicates that changes on the supply side of the labor market appear to explain relatively little of the decline in the male working-age labor force participation rate. Instead, much of what’s been going on seems to have been the result of reduced labor demand for workers with some skill types.

For example, the CEA report points out that the drop in labor force participation has been greater among groups that typically have lower wages. Picture an upward sloping supply curve and a downward sloping demand curve, with the quantity—i.e., the level of employment (and thus the long term level of labor force participation)—and the price, i.e. the level of wages, determined by the point at which these curves intersect. If you observe a drop in both quantity and price, a drop in supply can’t explain your observation. When the supply curve shifts inward, the result is a drop in quantity—but also an increase in price. In other words, for Professor Wax’s supply-side story to be right, we’d expect to see a negative relationship between changes in wages and changes in labor force participation. Instead, wages have fallen most among groups with the biggest drop in labor force participation.

To be sure, the full complement of changes in U.S. labor market over the last half century is complex, and simple supply-demand explanations shouldn’t be over-interpreted. But the falling-demand explanation is based on careful consideration of real evidence. By contrast, Professor Wax offers only assertion, providing neither analysis nor reference to any verifiable empirical evidence.

For those who are interested in learning more about these issues, the CEA report considers a substantial body of research and considers a variety of interpretations. Another interesting paper to consider is Alan Krueger’s brand-new paper, Where have all the workers gone? An inquiry into the decline of the U.S. labor force participation rate (the quicker Brookings summary is here), which engages the correlation between patterns of opioid use and labor force participation—for which the causality might run in either direction; see also work by Craig Garthwaite concerning the role of a different class of painkillers in increasing labor supply.

D. Was the Pill Bad for America?

I’m going to outsource this one to my colleague Jon Klick, who addressed it head-on in his aforementioned response to Professor Wax posted at Heterodox Academy:

Alexander and Wax also finger the introduction of the pill as being part of the beginning of the end for America’s commitment to education, delayed gratification, self-reliance, and all the other things that made 1950s America great. Interestingly, there is an absolutely huge high-quality econometric literature on the effect of the introduction of the pill, and many of the results would seem to go in the opposite direction presumed by Wax and Alexander. For example, there is evidence that the pill’s introduction improved education outcomes for women, and there is even long-term evidence that it led to better outcomes for subsequent generations in terms of education and income. Interestingly, although not mentioned by Wax and Alexander (though presumably it would be functionally similar in their arguments), a similar literature exists regarding the effects of abortion. I note this as someone who first became infamous for writing an article demonstrating that abortion legalization led to more risky sex.

E. Did the Rev. Martin Luther King, Jr., Have Color-Blind Aspirations that Were “Inverted” by Identity Politics Types?

Professor Wax writes in the op-ed that the late 1960s “saw the beginnings of an identity politics that inverted the color-blind aspirations of civil rights leaders like the Rev. Dr. Martin Luther King Jr.” In his “I Have A Dream” speech, Rev. King famously declared: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

It’s worth noting that Rev. King referred to his children, the content of their character, and the color of their skin. He was not preoccupied with unfair treatment due to white skin, because that wasn’t the problem created by hundreds of years of racism and discrimination in America. So when Professor Wax claims Rev. King’s legacy to support a sudden switch to formal color-blindness, she is reading into it a particular neutrality that it doesn’t support.

If Rev. King were alive today and saying the same things he said in the 1960s, he would fit comfortably into the set of people Professor Wax decries in the op-ed for their “obsession with race.” Historian Clayborne Carson writes that

“in his 1964 book, ‘Why We Can’t Wait,’ King compared the social reforms he favored to the GI Bill of Rights, which gave World War II veterans special preferences including home loans, college scholarships and special advantages in competition for civil service jobs. King maintained that African-Americans could never be adequately compensated for the ‘exploitation and humiliation’ they had suffered in the past, but he proposed a ‘Negro Bill of Rights’ as a partial remedy for these wrongs. He insisted that African-Americans should be compensated through ‘a massive program by the government of special, compensatory measures which could be regarded as a settlement in accordance with the accepted practice of common law.’ He added that ‘such measures would certainly be less expensive than any computation based on two centuries of unpaid wages and accumulated interest.’”

As Carson explains, Rev. King “argued for governmental policies that would compensate for the historical wrongs committed against African-Americans… [and] advocated special programs that would enable African-Americans to enjoy equal opportunity.”

Ask yourself whether a person who proposed such programs today would escape Professor Wax’s accusation of “identity politics” and “obsession with race.” While you’re at it, consider that Rev. King did not limit himself to calling out only the most extreme, most racist actors in his campaign for justice. Here’s Rev. King in his Letter From A Birmingham Jail:

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.”

F. Is Professor Wax Right About Marriage and Child Rearing?

In the op-ed, Professor Wax writes about “the destructive consequences of the growing welfare state, which, by taking over financial support of families, reduced the need for two parents.”

Before I went to law school and became a law professor, I spent 9 years on the University of Maryland’s economics department faculty and 3 more in the economics department at the University of Arizona. Much of my empirical work was about poverty-related issues, especially policy related to cash assistance through the Aid to Families with Dependent Children (AFDC) program and the welfare reforms of the 1980s and 1990s that led to its elimination.^[1] I might be a bit rusty. But I am sure it would be an act of charity to characterize as mere over-simplification Professor Wax’s suggestion that the welfare system destroyed family formation by “taking over financial support.” Here are some facts, drawn from a review chapter I wrote several years ago (as these things go, it was published only recently, in a collection on law and economics and federalism; here’s an ungated pre-publication version):

• Welfare benefits were never all that high. In 1970, the median state-level monthly maximum welfare benefit level for a family of three was 71% of the federal poverty line. Adding maximum available Food Stamps payments raises this number somewhat, though the Food Stamps program implicitly taxed AFDC benefit levels. It’s difficult to quickly find citable data for 1970, but my calculations based on 1972 figures indicate that the median across states of the maximum available combined AFDC and Food Stamps benefit payment would have been slightly above the federal poverty line (e.g., something like 108%). I would not call that “taking over the financial support of families.” (Calculations in this paragraph are based on data on state maximum benefit levels available in Table 5.5 of https://aspe.hhs.gov/system/files/pdf/167036/5benefits.pdf, data in Table 5.22 of same, as to actual food stamps payments that would have been made to a family of three with zero income in 1972, and data on poverty thresholds for a nonfarm female-headed household with two children available at https://www2.census.gov/programs-surveys/cps/tables/time-series/historical-poverty-thresholds/thresh70.csv.)
• Time series evidence. If Professor Wax’s story about the “destructive consequences of the growing welfare state” were meritorious, then one would expect to see that time trends in marriage, divorce, and non-marital child bearing have tracked trends in the generosity of available welfare benefits. AFDC (originally called just Aid to Dependent Children) was actually created in 1935, under Section 401 of the Social Security Act. The program’s generosity did grow in the 1960s, partly for complicated reasons having to do with the way the joint state-federal program’s financing changed as a result of the 1965 Social Security Act. But it is widely known among experts in the field that the generosity of available AFDC and Food Stamps benefits declined steadily and substantially over the period between 1970 and 1996, when AFDC was eliminated by the federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).

By 1996, the median state-level monthly maximum combined AFDC-Food Stamps benefit payment for a family of three had fallen to just 40% of the federal poverty line. This is not some quirk related only to the median, or to the family size of three; trends in pretty much any measure of the generosity of combined available AFDC-Food Stamps benefits show that available benefit levels lost a substantial share of their real value over the quarter-century before PRWORA was passed by the Republican Congress and signed by President Bill Clinton.

In light of the steady drop in program generosity, Professor Wax’s simple story of welfare state substitution for the two-parent family requires, all else equal, that the quarter-century between 1970 and 1995 should have seen rising marriage rates and falling divorce and non-marital birth rates. In fact, a comprehensive 2002 review by leading poverty scholar Rebecca Blank—cited nearly a thousand times according to Google Scholar and widely known among experts on poverty policy—documents that data do not support the pattern that Professor Wax’s position would predict. Figure 5 of Blank’s paper (at page 1154), shows an overall pattern of decline in marriage rates in the period following 1970, contrary to what Professor Wax’s story predicts during a time when welfare generosity is falling. The divorce rate increases throughout the 1970s and then decreases after peaking in roughly 1980—again, not what Professor Wax’s simple story predicts during a time of steady decline in welfare generosity.

What about non-marital births? For a few years in the first half of the 1970s, there was a small-to-moderate drop in the birth rate for unmarried females aged 15-44, in line with Professor Wax’s story, but after that the non-marital birth rate rose steadily for two decades—just as welfare program generosity was falling. The non-marital birth rate peaked in 1994, two years before PRWORA eliminated AFDC nationwide.

As I wrote in my review, views like Professor Wax’s theory “fit[] the time series trends rather poorly.”

• Evidence from econometric studies. Although time series evidence is dispositive if all else is equal, much else might have changed at the same time as welfare generosity fell. Social scientists use statistical models to try to isolate factors. As economist Robert Moffitt concluded in a classic 1992 review that Google Scholar reports has been cited over 1,600 times, and which is also widely known by experts on social policy, “the econometric estimates of family structure effects are not large enough to explain long-run declines in marriage rates” (see pages 56-57). Nor has work since Moffitt’s review provided much support for Professor Wax’s story, as I discuss in my own review referenced above.

So quantitative empirical evidence provides little if any support for Professor Wax’s claim of “destructive consequences of the growing welfare state,” related to a takeover of “financial support of families.” It gets both the trends and levels of important variables wrong, and it finds at most limited support in the body of more sophisticated econometric studies.

The supposed role of the welfare state is only part of Professor Wax’s story, and I imagine that even many people who accepted the facts above would subscribe to Professor Wax’s claim that marriage before and during child rearing is an unambiguous good. On that front, consider a post at Heterodox Academy by Professor Jonathan Haidt, describing a very interesting-sounding bipartisan working group on poverty that he moderated. He explains that the group issued a report that did the following:

• Questioned the role of government policies in affecting marriage behavior and determined that promoting marriage is “in large part a question of culture.”
• Stated that “Political leaders, educators, and civic leaders—from both the political left and right—need to be clear and direct about how hard it is to raise children without a committed co-parent.”
• Cited “contraception expert Adam Thomas” for the proposition that “mass media campaigns about the consequences of unprotected sex have reduced unplanned pregnancies.”
• Proposed a public information campaign “of similar scope” as those related to smoking and teen pregnancy “to emphasize the value of committed coparenting and” (Emphasis mine.)
• Cited approvingly the impact on “Major cultural norms” of “messaged leaders send” that “express[] firm and unequivocal views about even entrenched cultural attitudes, including norms surrounding civil rights and gay rights.”
• Further, in his Heterodox Academy post, Professor Haidt emphasizes the role of not only marriage, but also “norms promoting marriage-like behavior” in reducing poverty.

Although Professor Haidt styled his post as a defense of Professor Wax, when you read carefully, his post has a distinct with-friends-like-that feel. Let’s consider how well aligned the above discussion from Professor Haidt is with Professor Wax’s stated views in the op-ed (Professor Haidt doesn’t address or even mention anything from the DP interview).

• Professor Wax would presumably approve of the group’s support for marriage as a solution to poverty. But the embrace of child rearing outside of marriage is a core aspect of her denunciation of today’s America, so if she is ok with substituting a “committed co-parent” for a husband or wife, I’ll be surprised to hear it. My reading of her op-ed is that Professor Wax really means it when she insists that everyone was “supposed to follow” the “cultural precept” to “Get married before you have children and strive to stay married for their sake.” I understand her to insist that a general social acceptance of non-marital co-parents is undesirable on its face.
• And Professor Wax has made no secret of her opposition to even marital co-parenting by same-sex partners. She is a signatory of the Witherspoon Institute’s “Marriage and the Public Good: Ten Principles” report, whose opening paragraph calls same-sex marriage an “especially troubling” development, one with “serious negative consequences.” I’m not going to get into further details of Professor Wax’s opinions about same-sex marriage, which the Witherspoon report presumably reflects (she has said she doesn’t agree with “every single thing” in the report, though she said that in a many-years-old DP article in which she specifically affirmed her opposition to same-sex marriage).

So the welcoming language of Professor Haidt’s report—come one, come all, as long as you come to co-parent—does not fit well with Professor Wax’s expressed views.

And if ending poverty is Professor Wax’s goal, why does she blame “prosperity” for creating social conditions that are “unworthy of, and unworkable for, a mature, prosperous adult society”? (You read that right: prosperity contributed to prosperity’s own unworkability—an intriguingly, if maybe unintentionally, dialectical view of the workings of capitalist society.)

Along with prosperity, Professor Wax also blames oral contraception for the advent of our unworthy and unworkable society (see Part II.E above for Jon Klick’s critical response to that account). So I see tension in Professor Haidt’s defense of her op-ed and his support for a “mass media campaign” designed to reduce unplanned pregnancies, unless this campaign would focus only on abstinence. And the contraception expert his working group cited, Adam Thomas, has elsewhere stated that, “[o]n the whole, there remains little compelling evidence to date that abstinence-only programs can affect the sexual behavior of most teens or of young adults.”

To be clear, it would be silly to say that as a general rule marriage is bad for children, and that is not what any of Professor Wax’s critics have said so far as I know. What I have to say on that front gets into what I’ve called level 1—what behavioral choices does a person think are best? I’ll address that question in Part III below.

G. The Role of Race and Sex Discrimination: Just History?

Professor Wax acknowledges in her op-ed that “during the period of bourgeois cultural hegemony … [t]here was racial discrimination, limited sex roles, and pockets of anti-Semitism.” As five other Penn Law colleagues pointed out in response to Professor Wax’s op-ed and interview, this is a serious understatement:

“The ‘racial discrimination’ and ‘limited sex roles’ that the authors identify as imperfections in midcentury 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 remained unavailable — by design — to most nonwhite Americans….

Gender discrimination was also fundamental to governmental and social policies in the 1950s, and to the broader culture that supported them. Before laws prohibited discrimination based on sex, race and religion, and a constitutional right to privacy eased access to contraception and other reproductive health services, women of all backgrounds could be denied jobs, fired for pregnancy and denied the ability to control their reproductive lives.”

Professor Wax also wrote that “steady improvements for women and minorities were underway even when bourgeois norms reigned.” It is true that the civil rights movement was well under way by the mid-1960s. Indeed, Brown v. Board of Education, the Supreme Court decision that found racial segregation in the public schools unconstitutional, happened in 1954. It also touched off widespread attempts by whites to undermine or simply ignore the Court’s determination. For example, as part of Virginia’s Massive Resistance, one county infamously closed all public schools rather than desegregate. Desegregation fights went on for decades in many places, due in part to the role of residential patterns in American school financing. One couldn’t, and can’t, eliminate the effects of racial discrimination in educational access simply by eliminating de jure segregation.

Beyond that, there is no shortage of evidence that racism continues to be a factor in American life. The now-notorious Unite the Right rally in Charlottesville that happened to occur a few days after Professor Wax’s op-ed and interview featured members of the Ku Klux Klan and proud Nazis. The President of the United States subsequently declared that there were “fine people” marching alongside the Klan and the Nazis. In a country with no racism problem, a sitting President would think that was a politically radioactive thing to say.

And there’s concrete evidence of how attitudes about race are reflected in differential racial treatment. Economists Marianne Bertrand and Sendhil Mullainathan famously sent resumes for fictional job applicants to employers, with the names manipulated to reflect names more common among whites and African Americans. Because the resumes were randomly assigned to employers and were constructed so that race and other important applicant characteristics were not systematically linked, the difference in callback rates can be interpreted causally, as due to differences in the names only. The result was that 50% more fictional African American resumes were required to obtain the same number of callbacks as a given number of fictional white resumes received. Bertrand and Mullainathan write that “A White name yields as many more callbacks as an additional eight years of experience on a resume.” (Page 992.)

Nothing about these results requires all people making racially discriminatory decisions to be self-conscious racists. Even if none of them were conscious of their biases, the result would be unequal treatment due to race. In fact, if racially discriminatory behavior is common among those who don’t harbor conscious animus toward other racial groups, then the problem is probably even bigger, because it probably means more people are making biased decisions, and in ways that are less easy to detect and address. For discussion of more evidence from “audit studies,” as the Bertrand-Mullainathan approach is sometimes known, see this New York Times piece by Mullainathan.

There is also no shortage of evidence of discriminatory attitudes toward women. Consider just one recent example—the extreme differences in the way anonymous commenters refer to male and female professors of economics at the Economics Job Market Rumors website. The evidence on this front was collected by Alice Wu as part of her undergraduate thesis at Berkeley. Wu, who I believe is now a Ph.D. student in economics at Harvard, used machine learning techniques to measure the ability of particular words in predicting the sex of economists being discussed by those posting on the site. She found that the 10 words with the most predictive power for women were (in order): hotter, hot, attractive, pregnant, gorgeous, beautiful, tits, lesbian, bang, and horny. The 10 words with the most predictive power for men were (in order): homosexual, homo, philosopher, keen, motivated, fieckers, slides, nordic, filling, and textbook.

Two points are worth noting about these lists. First, the top 10 words that predict women are being discussed are entirely unrelated to professional issues, and relating instead to appearance or sexual issues, whereas the top 10 words that predict men are being discussed are mostly unrelated to these features. Second, the top 2 words that predict men are being discussed are frequently used as pejoratives in discussing gay men.

The Wu study, which was the subject of a New York Times column by Justin Wolfers, sparked some debate, which I won’t recapitulate here. My point in bringing it up is that it shows substantial differences in attitudes toward men and women, and evidence of anti-gay attitudes, on a website ostensibly related to professional issues. It’s true that anonymous commenters behave boorishly all over the place. But if men and women are treated equally in our society, and if animus toward gays and lesbians isn’t a problem, why would we expect to see this particular pattern of boorish behavior?

I could have pointed to a lot more research, to be sure. And it is important to recognize that there are serious challenges in measuring the scope of race and sex discrimination in contemporary America. But I do not think there is a serious case that it is the historical footnote Professor Wax’s phrasing suggests, and I suspect it is actually rather important.

II. Level 3: Professor Wax’s Claims About Cultural Superiority and Race, and the Open Letter

This Part of the post first discusses Professor Wax’s comments with respect to culture and race, as well as a blog post by Professor Jon Haidt styled as a defense of those comments. Then it discusses provides a detailed discussion of why Professor Wax’s pronouncements about culture and race have caused so much outrage among her critics. Finally, it responds, in sections C, D, and E, to three types of criticism I’ve seen directed at the Open Letter.

A. Professor Wax’s Comments About Race and Culture, and Professor Haidt’s Defense

I’ll start with the paragraph of the Open Letter that quotes Professor Wax’s statements:

In an op-ed published recently at Philly.com, Wax and a coauthor wrote that “All cultures are not equal,” going on to claim that various social problems would be “significantly reduce[d]” if “the academics, media, and Hollywood” would stop the “preening pretense of defending the downtrodden,” because that would lead to “restoring the hegemony of the bourgeois culture.” In an interview with The Daily Pennsylvanian about the op-ed, Wax was quoted as saying that “Everyone wants to go to countries ruled by white Europeans,” because, in the phrasing of the DP article’s author, “Anglo-Protestant cultural norms are superior.”

Taken together in context, together with a fair reading of Professor Wax’s historical characterization of “bourgeois culture” as the socially dominant culture of the late 1940s through the mid-1960s, these statements amount to a declaration of the superiority of Professor Wax’s perceptions of the culture of politically and socially dominant people in 1950s America (and, apparently, Europe) to the cultures of other people. In addition, they convey that social problems are substantially to be blamed on those who she feels have undermined the hegemony of that culture—“the academics, media, and Hollywood,” who engage in “preening” and “pretense” but actually harm “the downtrodden” rather than helping them.

Economy of language and space is useful in the open letter milieu, but we certainly could have pointed to more. For example, Professor Wax wrote in the op-ed that

“the single-parent, antisocial habits, prevalent among some working-class whites; the anti-‘acting white’ rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants … [are] cultural orientations [that] are not only incompatible with what an advanced free-market economy and a viable democracy require, they are also destructive of a sense of solidarity and reciprocity among Americans.”

So “single-parent, antisocial habits … among some working class whites,” and “rap culture of inner-city blacks,” and “anti-assimilation ideas … among some Hispanic immigrants” are all “cultural orientations” and are “incompatible with” an “advanced … economy,” not to mention “viable democracy.” Only “the bourgeois cultural script” can save us from these deficient cultures, characterized as they are in racial or class terms (in the case of the disfavored “working class whites”).

Jon Haidt, who has graciously agreed to publish this post in part as a response to his defense of Professor Wax’s statements, asks, “When and why should professors come together to denounce and condemn other professors?” Acknowledging that “we are always free to dispute each other,” and that “Wax’s colleagues could certainly have written essays or a collective essay debating her claims and pointing out flaws in her reasoning,” he emphasized the question, “when is it morally and professionally appropriate to issue a collective public condemnation of a colleague?” Before I go on, let me emphasize that our letter condemned Professor Wax’s statements; it did not condemn her personally. With that clarification made, here’s what Professor Haidt says:

“I think such collective actions are only appropriate when colleagues have clearly and flagrantly violated their professional duties. I mean things like data fabrication or taking bribes to produce dishonest academic papers desired by a trade association. I would include writing a racist and hate-filled diatribe in that list.”

Professor Haidt then asks: “[B]ut is that what Wax did?” He thinks not, clearly, because he thinks the Open Letter was inappropriate.

The Oxford English Dictionary defines “diatribe”, in modern use, as “A dissertation or discourse directed against some person or work; a bitter and violent criticism; an invective.” In turn, it defines “invective” as “A violent attack in words; a denunciatory or railing speech, writing, or expression. I do not think there is much question that Professor Wax’s statements constitute “a bitter and violent criticism,” or that they constitute invective as defined. The fact that Professor Wax also offered some life advice (level 1) and empirical claims (level 2) doesn’t change the fact that as to culture and race (level 3), her statements amount to a “diatribe”.

Were her statements racist? The word “racist” is difficult to define, in no small part because it is so contested politically and ideologically. Penn History Professor Jonathan Zimmerman has written that the charge that a person is racist is “a conversation stopper,” and whatever the problems with Zimmerman’s column—e.g., failing, as Professor Haidt did, to mention or address the DP interview—there’s some truth to that. So I’m not going to try to define “racist” or “racism”, and I won’t join with those who call either Professor Wax or her words “white supremacist”. I will say that I do not believe it is possible to read Professor Wax’s statements, together in context, without drawing the conclusion that she is claiming that (i) a particular culture, (iii) whose heyday she believes occurred during a period (iii) that was characterized by institutionalized and state-enforced racism, (iv) is superior to other cultures (v) then and since.

Evidently that’s not enough to meet Professor Haidt’s condition for “a collective public condemnation of a colleague.” I disagree.

And I disagree with the anodyne gloss that Professor Haidt puts on Professor Wax’s statements: “She wrote an essay on the importance of culture for poverty-related outcomes.” Certainly Professor Wax made a bunch of claims about that topic, but as my discussion above indicates, that’s not all she did.

My disagreement with Professor Haidt is not limited to whether Professor Wax’s diatribe about culture, linked to race, meets the standard for a group condemnation. For one thing, Professor Haidt’s defense doesn’t engage the DP interview, which is where the “countries ruled by white Europeans” bit shows up. In fact, his post didn’t mention the interview at all until I wrote to him to ask that he fairly quote the Open Letter’s discussion of Professor Wax’s statements, which he did not initially do. To his credit, Professor Haidt agreed that his use of an ellipsis in place of the Open Letter paragraph I quote above eliminates important context, and his post now quotes it in full. (Lest it need saying, it is also very much to Professor Haidt’s credit that he agreed to publish this post on the Heterodox Academy blog.)

Professor Haidt’s defense highlights one aspect of Professor Wax’s claims about culture, concluding that Professor “Wax’s central claim about culture is probably correct.” But his defense on the merits is limited to marriage, and there are important differences—which I discussed in Part I.F above—between the positions that he advocates and what Professor Wax wrote in the op-ed (as well as positions she has previously taken publicly).

Professor Haidt states that

“the choice to denounce or not denounce … should hinge on whether [Professor Wax] was making an argument in good faith using methods of argumentation that fall within the normal range of her part of the academy. There are no footnotes in a Philly.com opinion essay, but in Wax’s other writings on family law it is clear that she knows and is informed by the relevant social science research. Do Wax’s colleagues believe that her essay in Philly.com constituted a profound violation of professional ethics, akin to data fabrication or taking a bribe? [Gelbach: Note the absence of the ‘diatribe’ option here.] Or do they just believe that she was wrong?”

So Professor Haidt is now talking about what I have called level 2: has Professor Wax argued in an intellectually honest way about facts that can, in principle, be assessed with empirical data. I think there is good reason to wonder whether Professor Wax was “making an argument in good faith using methods of argumentation that fall within the normal range.” And however persuaded Professor Haidt is that Professor “Wax’s other writings” make it “clear that she knows and is informed by the relevant social science research,” the discussion throughout Part I reveals that the op-ed is riddled with (level 2) empirical problems. We didn’t condemn her for these errors in the Open Letter because we were concerned with making a statement to the Penn community about the diatribe, and the race- and culture-related comments; in other words, we were concerned with level 3. Whether Professor Haidt’s reasoning indicates that an additional Open Letter is in order to condemn Professor Wax’s failures as to level 2 is now an academic question, and not one I’ll pursue here.

B. People Are Upset Because Professor Wax Claimed that 1950s “Bourgeois Culture” is Superior to Other Cultures, Explicitly Tying that Superiority to the Supposed Desire of “Everyone” to Move to “Countries Ruled by White Europeans”

I think one of the reasons for the ferocious reaction to Professor Wax’s statements is that most people intuitively understand culture not to be up to individuals to choose, but rather as something that is in important ways exogenous to, and constitutive of, who they are. Recognizing that possibility might help Professor Wax’s defenders make more sense of the outrage that has met Professor Wax’s embrace of the idea that the culture of countries ruled by white people is superior to other cultures.

What does Professor Wax mean when she uses the word “culture”? The op-ed provides a “script” for “all … to follow,” which she says “bourgeois culture laid out.” This script includes rejection of non-marital childbearing or divorce for those who have had children; education, hard work, and rejection of “idleness.” Going “the extra mile for your employer or client”; being patriotic; being “neighborly, civic-minded, and charitable.” Not using “coarse language in public.” Showing respect for “authority.” Rejection of “substance abuse and crime.”

For purposes of the instant discussion, I’ll stipulate for argument’s sake that all of Professor Wax’s favored behaviors are desirable, so that I can focus on the question: “Does this set of behaviors constitute a culture?” It’s difficult to find a unified definition of culture, though I spent a decent amount of time trying—looking at online dictionaries, as well as cultural anthropology and other course materials. On this topic, then, I’ll go with my intuitions.^[2]

To me, a central aspect of culture is that it’s outside the control of individuals to choose it, at least over any short-term period. I dated lots of women of Irish descent earlier in my life, because I met a lot of them while living in Connecticut and Massachusetts, and because I really liked what I knew of what I understood to be Irish culture. As much as I might have liked to, though—and even though I am now married to a woman of Irish descent—I don’t think I could just up and adopt Irish culture as my own. Whatever culture is, it’s deeper than that; it’s part of what makes us who we are, beyond our own instant choices.

Professor Wax seems to disagree. She wrote in the op-ed that the “basic cultural precepts” of her script “could be followed by people of all backgrounds and abilities.” People, Professor Wax evidently believes, can choose their culture; I can be Irish, just by choosing to. I don’t think that’s a very typical understanding of culture, and I doubt it finds much support among those experts who understand themselves as engaged in the study of culture, e.g., cultural anthropologists, sociologists, and social psychologists, for example.

Now, one might mount a defense of Professor Wax on this score. Consider the following attempt at a charitable interpretation:

Yes, Professor Wax wrote in the op-ed that “All cultures are not equal” (level 3). But her description of “culture” in the op-ed is really just a list of behaviors that anyone can choose to adopt. She’s just giving life advice—saying to act a certain way (level 1). And when she embraces the word “superior” in the DP interview, she’s talking about the behaviors, not culture—she’s talking level 1, not level 3.

So when she explains that everyone wants to move to countries ruled by white people because of the superiority of their cultural norms, she really means that everyone wants to move to countries ruled by white people because people in countries ruled by white people behave better than people in countries not ruled by white people.

Really, Professor Wax isn’t talking about culture at all. Her position has nothing to do with whether one culture is better than others. She screwed up by using the word “culture” (level 3) and should have just talked about her list of favored behaviors (level 1).

I don’t know whether Professor Wax would associate herself with this defense, distinguishing level 1 from level 3. Nor do I know whether she’s instead happy to concede that it’s entirely reasonable to read the body of her statements as a declaration that the lost culture of countries ruled by white people is superior to other cultures. But even if she would sign on to the level-distinguishing defense, it’s her own fault that people read it as level 3.

When (a) you claim to write about culture, as she did in the op-ed, and (b) you declare that you “don’t shrink from the word, ‘superior’,” as she did in the DP interview about the op-ed, and (c) you assert as empirical support the claim that everyone wants to move to countries ruled by white people for reasons you’ve repeatedly said are rooted in culture, you’re being awfully sloppy if (d) you mean something other than the level 3 claim that “white people’s culture is superior to other people’s.”

I’ve known Professor Wax for a bit more than four years. We’ve had dinner at each other’s houses. We’ve lunched a number of times. I’ve had many opportunities to listen to her speak in public on a variety of topics. We’re even co-signatories of a different open letter (16 colleagues signed that one in total). As you might imagine to be the case about a person who has argued 15 cases in the Supreme Court of the United States, Professor Wax is capable of expressing herself with precision when she wants. If all she wanted to do was be a social scold—marry before procreating; don’t do drugs or crime—I doubt she’d have had much trouble achieving that aim. But if she was just imprecise, she could explain that and apologize for sowing confusion with careless and overly broad wording. She could do so while affirming whatever she feels her actual position is. I wish she would, because even though many critics probably still won’t be her fans, it would create the possibility for some real understanding and healing in Penn’s community.

C. It was Appropriate for the Open Letter Not to Provide a Detailed Refutation of Professor Wax’s Claims

Some have criticized the Open Letter for not developing a detailed refutation as the basis for its condemnation of Professor Wax’s statements. That criticism is misplaced for two reasons.

First, as to level 2, Professor Wax’s op-ed and interview statements are riddled with substantive errors, as I discuss in Part I, and she failed to provide any references to anything that a trained social scientist would recognize as empirical evidence sufficient to establish the causal claims she makes.^[3] As the organizer of the Open Letter, I saw no reason to fight nothing with fire.

Second, to my mind the point of the Open Letter wasn’t to show that Professor Wax is engaged in bad history, bad reasoning, or bad social science. All of these are true, as I discussed in detail in Part I. I felt the point was to make a statement to the Penn community that many of Professor Wax’s colleagues do not agree with her diatribe as to culture and race.

Not all students will have been wounded by that diatribe, or even by Professor Wax’s mean-spirited tone (here are some examples of that tone from just the op-ed: “obsession with race”; “multicultural grievance polemics and the preening pretense of defending the downtrodden”; “adolescent, wish-fulfillment ideal … unworthy of … a mature … adult society”; “single-parent, anti-social habits”; “rap culture of inner-city blacks” — with the word “blacks” not qualified by “some” as “whites” and “Hispanic immigrants” are in surrounding clauses).

And all students, when they become lawyers, will need to be able to stand up to and make arguments against those who might belittle or otherwise mistreat them. To be clear, I did not organize the Open Letter to create a safe space from ideas, even noxious or poorly articulated, unsupported ones. Rather, I organized it to make clear to students in as direct a way as possible that so many members of our faculty not only reject Professor Wax’s level 3 claims about culture and superiority—a large number of us were willing to say so publicly.

To my mind, making this statement of disagreement and condemnation was the very point of the exercise. To suggest that the Open Letter failed because it did not do more than that is to overlook the value of standing up and saying, simply and clearly: No, I don’t agree, and I won’t be quiet about it.

D. Is Nazi Culture Bad? Yes, and the Open Letter Doesn’t Suggest Otherwise

A second criticism of the Open Letter goes like this. Nazi culture, or ISIS, or Aryan Nation prison gangs, or whatever, are obviously worse than some other cultures. So therefore to “categorically reject” Professor Wax’s statements—one of which was that “All cultures are not equal”—amounts to an endorsement of whatever embodiment of evil the critic has in mind. Thus either the Open Letter’s signatories endorse Nazis, or (our critics seem willing to grant) we have shown ourselves to be so poor at reasoning as to have not realized that we have unwittingly done so. I am sure that Nazi culture, whatever it is, is bad. More important, pace the critics, the Open Letter doesn’t suggest otherwise.

Though this one statement has consumed the attention of some of her defenders, Professor Wax did not state only that “All cultures are not equal.” That statement must be read in context, just as one should read anything else in context. And context makes plain that Professor Wax is not denouncing Nazis. Hers is a rejection not of Hitler, but rather of American modernity and the idea that other cultures are equal to her favored “bourgeois culture”.

In the op-ed, Professor Wax blames “prosperity, the Pill, the expansion of higher education, and the doubts surrounding the Vietnam War” for creating attitudes she says are “unworthy of, and unworkable for, a mature, prosperous adult society.” She proposes to “re-embrace” the norms celebrated in the 1950s, which, she says, will “significantly reduce society’s pathologies.” In her interview with the DP, Professor Wax states that “Everyone wants to come to the countries that exemplify” the norms celebrated in the 1950s, adding that the favored countries are those “ruled by white Europeans” (I assume “white Europeans” here is a synonym for “white Americans”, though that does raise the question of whether Professor Wax believes that President Obama was white, wasn’t one of the people who “ruled” the U.S. when he was president, or that people didn’t want to come to the U.S. during the eight years he was president).

In light of that context, it is misreading to read the Open Letter’s “categorical[] reject[ion]” of Professor Wax’s claims as an embrace of the equality of Nazi or ISIS or Aryan Nation prison gang culture. With a few exceptions, I do not know those who misread the letter that way, and I do not challenge any of their motives. But they ought to consider whether they generally endorse the practice of plucking a sentence out of its surrounding context—one provided with fulsome detail in the very (short) letter they criticize.

For the record, here, once again, is the full paragraph of the open letter describing Professor Wax’s statements:

In an op-ed published recently at Philly.com, Wax and a coauthor wrote that “All cultures are not equal,” going on to claim that various social problems would be “significantly reduce[d]” if “the academics, media, and Hollywood” would stop the “preening pretense of defending the downtrodden,” because that would lead to “restoring the hegemony of the bourgeois culture.” In an interview with The Daily Pennsylvanian about the op-ed, Wax was quoted as saying that “Everyone wants to go to countries ruled by white Europeans,” because, in the phrasing of the DP article’s author, “Anglo-Protestant cultural norms are superior.”

When the Open Letter subsequently “categorically reject[s] Wax’s claims,” it is rejecting her insistence that one culture—or at least, her perception of it—is superior.

It is not celebrating Nazis.

E. The Open Letter’s Closing Paragraph Was Warranted

Some critics have suggested there is something wrong with the Open Letter’s final paragraph, whose text I’ll quote in full:

We believe the ideal of equal opportunity to succeed in education is best achieved by a combination of academic freedom, open debate, and a commitment by all participants to respect one another without bias or stereotype. To our students, we say the following: If your experience at Penn Law falls substantially short of this ideal, something has gone wrong, and we want to know about it.

National Review’s Heather Mac Donald exemplifies the criticism I’ve seen, calling this text “bizarrely coy” and alleging that it really means “Please provide us with instances of Wax’s alleged ‘hate speech’ against minorities so that we can build the case for removing her from teaching mandatory first-year courses.”

Speaking only for myself—while noting that I made the final determination as to this wording—I will say that I intended nothing coy here. I do believe in equal opportunity to succeed in education. And I do believe that such equality of opportunity implicates multiple values.

Let’s do what law professors do—consider a hypothetical, and suppose Mac Donald were part of my educational community. I’d wish that she could find a way to express herself without all the adjectives and motive-impugning with which she’s sprinkled her posts about this issue, because that style of communication doesn’t make for a great educational environment. If she were a professor talking to her students that way as a general matter, I might worry about having her teach a course students can’t opt out of. I’d especially worry if she were selective about it, addressing one group of students with hostility and derision while treating others in the same class with respect.

Really: Who wouldn’t?

At the same time, I’d worry a lot about making sure that hypothetical Professor Mac Donald were treated fairly and that any formal complaints were appropriately investigated by a neutral fact finder, with due attention to Professor Mac Donald’s version of events. I’d feel exactly the same way if conservative students complained that a professor on the left treated them unfairly. I don’t hide my views, which are probably fairly characterized as garden-variety progressive, but I believe strongly that all teachers must treat all students fairly and respectfully in class, and I strive to do so regardless of their ideological views. I’d be upset with any colleague who mistreated conservative students, and if someone complained, I’d want the same bilaterally fair process for progressive professors as for Professor Mac Donald.

On that note, I’m disappointed that Mac Donald and other critics have chosen to read the Open Letter’s last paragraph tendentiously, as evidence of perfidy, rather than as a sincere expression of concern for multiple values expressed by an ideologically diverse group of faculty members. I won’t play the game that Mac Donald, Professor Wax, and others play when they demand to know whether Professor Wax’s critics favor crime, or drug abuse, and so on. That is, I won’t try to score points by asking which specific aspects, of the ideal of equal educational opportunity that we expressed, they oppose. Nor will I ask whether they would prefer that students keep quiet if they feel that their educational experience has substantially failed to reflect “academic freedom, open debate, and a commitment by all participants to respect one another without bias or stereotype.”

Instead, I’ll ask these critics to read more carefully—to recognize that our closing sentence is directed “To our students.” It is not directed only to students of color, or LGBT students, or progressives, or whatever group Mac Donald & Co think we favor. I wrote the phrase “To our students,” and the paragraph in which it sits, quite self-consciously to speak to all our students. The phrase “our students” does not exclude. Accordingly, it includes everyone,^[4] not least conservatives.

I recognize that some will say, well, in context no one could read that paragraph as anything other than a threat. I think that view is erroneous, because it fails to credit the possibility that we are genuinely interested in emphasizing the importance of an educational climate of respect. Outside of the law school faculty, I’ve heard many say they don’t see how students of color, or other targets of Professor Wax’s diatribe, can feel they are respected in Professor Wax’s classroom given both the substance and tone of her statements. Like those people, I have concerns. Unlike those people, I don’t know the question’s answer, which is why I have not so far held the view that Professor Wax should be removed from mandatory courses.

But because Professor Wax’s public statements might reasonably cause some students to think she harbors a fundamental disrespect for them as human beings, I thought it was important for many members of our faculty to affirm the importance of both the necessity of open expression and academic freedom and respectful treatment of all students in the classroom.

Nothing has changed my mind about that, and I am proud that 33 of us signed a letter that I believe did just that.

III. Level 1: Life Advice From Professor Wax

As I discussed at the outset, one aspect of Professor Wax’s statements is best understood as life advice. Even after criticizing Professor Wax’s race-tinged diatribe about culture (level 3) and her many errors of fact, reasoning, and history (level 2), we can still assess her suggestions regarding behavioral choices on their own terms. Once again, here’s her “script we all were supposed to follow”, together with the set of factors she blames for decline:

Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime….

This cultural script began to break down in the late 1960s. A combination of factors — prosperity, the Pill, the expansion of higher education, and the doubts surrounding the Vietnam War — encouraged an antiauthoritarian, adolescent, wish-fulfillment ideal — sex, drugs, and rock-and-roll — that was unworthy of, and unworkable for, a mature, prosperous adult society.

Some of the favored behaviors are easy for me to agree with, e.g., don’t abuse substances, be neighborly. And I agree that it’s good to get an education, though it’s a bit hard to know whether Professor Wax really does, given that she blamed social decline in part on “the expansion of higher education.”

Here are some places where I must part ways with Professor Wax’s level 1 life advice—treated as self-evidently true by some of her defenders:

• I think the use of, and technological advance in, contraception is a good thing. My observations—both experiential and in a kind of Cartesian taking note of the persistence of our species—indicate that people like to have sex. It also seems that not everyone who’s unprepared to have a child is going to abstain, no matter how much scolding Professor Wax or even I do. So I think it’s better for people to be able to both (i) have sex and (ii) avoid becoming parents. We can debate how old a group “people” entails, of course. But I will not join Professor Wax’s scowl at technological improvements in birth control.
• I enjoy “rock-and-roll.”
• I’m pretty sure I’d have opposed the Vietnam War.
• I don’t enjoy authoritarians.
• Et cetera.

But what about marriage—the queen of “bourgeois values” and the focus for so many of Professor Wax’s defenders, including Professor Haidt?

I am married, I have two children, and I love them. If I thought marriage were bad for my kids, I think I’d get divorced. So the issue is not that—or even whether—I think marriage is “bad,” but that my own personal experience tells me that it’s not very useful to inquire at the level of generality represented by the question, “Is marriage good or bad for children?”

When I was young, my parents had a protracted and spectacularly destructive divorce. When the dust had mostly settled, I grew up the child of a single mother, about an hour away from my father, whom I saw with regularity, if with less frequency than I’d have liked. I am sure my life has been much harder than it would have been had my parents been happily married. And I am just as sure that if they had remained unhappily married, things would have been even worse for me.

Let me provide some context based on my own experiences, and those of a number of people to whom I’m close, some divorced and others the children of divorced people. People who are unhappily married don’t treat each other well, and they aren’t necessarily very good about hiding that from their children. Consequently, they may set poor examples for their children. In some couples that’s “just” about interpersonal conflict. Some others engage in extramarital sexual relationships, thereby failing to model fidelity or trustworthiness, worthy characteristics that don’t appear on Professor Wax’s list of “bourgeois values”. Still other unhappy marriages continue even though they should have ended much earlier due to one parent’s abuse of the other parent, or the children, or both.

The consequences for children of parents’ problematic within-marriage behaviors can be severe and lifelong. Over the years I’ve had many conversations with other children of divorce who, like me, do not think they would have benefitted had their parents stayed together “for their sake.” In addition, because my parents finally did divorce and remarry, I have many additional family members whom I love and consider important parts of my life.

So the real world is more complicated than simply marriage-is-good. My sense from my own experiences is that a healthy childhood requires three things: love, stability, and resources sufficient to provide food, shelter, health care, education, and social/friendship ties. In many cases marriage—whether same- or opposite-sex—will contribute to all three of these desiderata. Excellent. In other cases, it’s possible for one adult to provide them all, perhaps in tandem with an extended family or others in the community. And as I have observed, children can get love, stability, and sufficient resources from “co-parent” relationships outside marriage, too. Those who think expert citation is necessary for level 1 comments should take a gander at this short but compelling declaration, provided by psychologist Dr. Michael Lamb at the trial-court level of the Windsor case.

In sum, you don’t need to think marriage is bad to disagree with Professor Wax’s attack on non-marital child-rearing, or to the very possibility of marital child-rearing in same-sex marriages. You can think marriage is often, even usually, good—while also recognizing that it can be unnecessary or even wrong in particular circumstances. And you can do so without creating the impression that you’re blaming those women whose husbands leave them, for somehow harming their children. It sounds to me like Professor Haidt’s working group tried to do all these laudable things. At least based on her recent statements, I don’t think Professor Wax did.

Let’s broaden the level 1 discussion past marriage. In an interview Professor Wax gave to New York magazine that was published on September 10, Professor Wax pointed generally to work by Isabel Sawhill of the Brookings Institution to support her claim that the poverty rate is low among “those who currently follow the old precepts,” as the op-ed put it.

Professor Wax did not indicate in the New York Magazine interview to which of Sawhill’s work she was referring. But I’m generally familiar with Sawhill’s work, and there’s no shortage of indications that education, work, and marriage are generally associated with lower poverty rates. I think none but the most hardened structuralist would believe that better skills; earned income; or two parents to earn income would fail to increase income—and thus reduce the incidence of officially measured poverty, which is a decreasing mathematical function of income—by some amount. One point for Professor Wax.

But don’t be too impressed with Professor Wax’s single, non-specific “source.” Sawhill is a prolific and respected think-tanker, one who has made admirable efforts to build bridges across ever-growing partisan chasms. Her work includes advocacy not just for behavioral changes that Professor Wax supports, but also for policies and behaviors that Professor Wax emphatically does not. This piece from October 2016 states that “We are going to need a stronger safety net coupled with subsidized jobs in either the public or private sector.” This piece from November 2015 advocates for “making work pay (EITC), a second-earner deduction, childcare assistance and paid leave, and transitional job programs.” Sawhill there also supports “changing social norms around the importance of responsible, two-person parenthood, as well as making the most effective forms of birth control (IUDs and implants) more widely available at no cost to women.” Note that “two-person parenthood,” rather than “marriage,” is the recommendation, and also note that the proposal includes publicly subsidized IUDs and birth control implants—the technological successors of the Pill. I am sure I could find many more examples in Sawhill’s work that contradict Professor Wax’s narrow focus on (heterosexual) marriage and rejection of progressive policies funded by the public sector.

I will stop my level 1/life-advice discussion there. There are some aspects of Professor Wax’s cultural script that overlap with my own ideas of how best to live. But there are important aspects of her script that that are like an outdated cult movie—never as good as the fanbase thought at the time, with both good and bad substance lost in the translation through time.

IV. Part of Open Expression is that You Might Get Criticized By Others Openly Expressing Themselves

The final point I want to make relates to suggestions that the critical reaction to Professor Wax’s statements has somehow undermined free expression. Professor Wax responded to the Open Letter with her own guest column in the DP. Though the Open Letter itself specifically affirmed not only her First Amendment and contractual rights, but also “the important role that principles of academic freedom play at our University.” Professor Wax ignored the statement about academic freedom. She emphasized instead that the First Amendment does not apply to “private institutions like Penn.” And she warned that

Penn is under no First Amendment obligation to protect free expression. At present, there is no guarantee that they will do so … The values of free expression … are now under relentless and escalating assault from many quarters, including from many within the University itself.

In the current climate, those who depart from received wisdom at Penn are vulnerable.

Professor Wax was not alone in sounding alarms about the nature of the criticism of her. Professor Haidt’s defense of her at Heterodox Academy contains a postscript explaining that the post “is part of my larger effort to call attention to the rising role of intimidation and fear, which are distorting life in the academy, interfering with both the research we conduct and the education we provide.” Having perused some other reactions to the Open Letter, I can say that there is no shortage of other commentary painting it as the kind of threat that Professors Wax and Haidt see.

On this topic it will be useful to quote from a guest column in the DP that the law school’s Dean, Ted Ruger, published on August 14. Here’s what Dean Ruger wrote:

At Penn Law, one of [our] bedrock values is that every faculty member and student has the right to voice an opinion and to speak for herself or himself. The right to speak, crucial to academic freedom, is just that — a right to make one’s opinion heard. It is a secure platform, not a shield or sanctuary to duck from the predictable criticism that may follow from others exercising their own expressive rights.

Institutionally and collectively we must permit every student and faculty member to speak, but we need not remain silent or imply endorsement of all views. In law school, as in life, we may encounter divisive, even noxious, views. Learning about such views teaches us something about the complex world in which we live and work. It is up to each of us to determine where and how we engage, challenge and rebut views with which we strongly disagree.

There is considerable and admirable wisdom in this passage. Let’s zero in, combining some of the text into a single, shorter quote:

The right to speak … is a secure platform, not a shield or sanctuary to duck from the predictable criticism that may follow from others exercising their own expressive rights….[W]e need not remain silent or imply endorsement of all views.

Contrast this view to Professor Wax’s response to the Open Letter. Professor Wax declares—“Watch out! They’re coming for you next!” But how exactly have we come for her? Simply by expressing our disagreement. As our Dean’s quote suggests, isn’t that the very nucleus of open expression values?

For argument’s sake, I’ll stipulate to the suggestion that either the Open Letter or other negative responses to Professor Wax’s statements do cause “intimidation and fear,” to use Professor Haidt’s phrasing. Doesn’t that suggest that condemnation, with words—some of them felt to be extreme and unfair—is itself fear-inducing? Enough to wound? Enough to scare someone away from speaking his or her mind? To stipulate to that suggestion is to conclude that expression is enough to “interfer[e] with … the education we provide,” as Professor Haidt puts it.

But if speech criticizing Professor Wax’s statements can do all that, why are Professor Wax’s defenders so unconcerned about the prospect that her own words do others harm?

There are real cases in which open expression values are threatened, on and off campus, from the left and from the right. But all that’s happened to Professor Wax is that she has been criticized by those expressing disagreement with her own expression. But Professor Wax has tenure, some have said, so she can afford to be brave—not like students, or staff, or even untenured faculty, all of whom must know, as Professor Wax put it, that they “are vulnerable” if they “depart from received wisdom at Penn.”

What is the source of this vulnerability at Penn? What negative consequence has befallen Professor Wax?

She has been publicly criticized by other people.

That’s how free expression works.

[1] This work may be found via my Google Scholar page.

[2] These are admittedly limited inasmuch as my own social science field of economics generally, and famously, takes culture as given.

[3] As noted above, before I went to law school I was an economist whose teaching and published work focused on identification of causal effects using statistical methods. So I speak with some expertise on this front.

[4] I really mean “all” students. For example, if we have any of them, I include Nazis and KKK members in that call. I’d hope they’ll show up, listen, get to know their classmates, and reconsider their premises.

Brief response, from Jon Haidt:

I thank Professor Gelbach for taking the time to lay out his arguments in detail on why he rejects the substance of Wax’s claims, and for explaining his reasoning in issuing the open letter. Our correspondence has been entirely civil and constructive. I will confine myself here to making one point in response to part IV of Gelbach’s essay, for that is the part that responds directly to me and my critique of the use of open letters.

Gelbach and I (and Wax) are in full agreement that no professor deserves “a safe-space bubble of protection from others’ reactions.” We all agree that Wax has a right to express her views, and her 33 critics have a right to express theirs. But Gelbach sees a symmetry between the two forms of expression where I see a big difference. From the point of view of the first amendment, yes, they are symmetrical and equally protected. But from the point of view of social psychology and group dynamics, they are very different.

Open letters and public petitions generate powerful social pressure to sign, and this pressure corrupts the norms of truth-telling, independence, and integrity that we rely upon in the academy. People notice not only who signed, but who failed to sign, and even who delayed signing. Read Jesse Singal’s account of the Rebecca Tuvel affair; his essay is titled This Is What a Modern-Day Witch Hunt Looks Like. Tuvel is an assistant professor of philosophy at Rhodes College, in Memphis. (She is also a member of HxA.) Last March she published an essay exploring whether arguments about transgenderism might apply to transracialism. A few other professors took offense at Tuvel’s article and drafted an open letter to the philosophy journal Hypatia demanding that it retract Tuvel’s essay. The open letter did offer some reasons for demanding the retraction, but, as Singal shows, every one of the reasons was false, and should have been obviously false to almost anyone who read Tuvel’s original essay. The charges were so outlandish and poorly crafted that we must assume that few of the hundreds of people who signed the letter bothered to read Tuvel’s essay -– or, even worse, that some of them read Tuvel’s essay and signed the letter anyway, knowing that its charges were false. That’s one of the defining features of a witch hunt: large numbers of people are compelled to betray the truth because they fear the social consequences. Bystanders are afraid to stand up for the accused witch, even when they are sure she is not a witch.

At Heterodox Academy we have a number of members who grew up in Eastern Europe before the fall of the Berlin Wall. Several have commented to me, in the last two years, how frightening it is to see some elements of life in the East Bloc cropping up on American college campuses. The use of open letters of denunciation, which create social pressures on bystanders to take sides, is a pernicious technique. Young people today are growing up in an Internet culture that encourages mass shaming and internet pile-ons. It is taking a devastating toll on their mental health, leading many to say that the now feel they are “walking on eggshells” all the time. The omnipresent threat of mass action and group denunciation has an intimidating effect; it breeds caution and discourages risk taking. It is not the same as a normal essay critiquing your arguments, or even your morals. We should do all we can to keep such techniques out of the academy.

If Gelbach and a group of colleagues want to work together to write a substantive essay (such as the one Gelbach posted here) I think that’s entirely appropriate. But the minute a move is made to recruit a large number of signatories (rather than a small number of co-authors), the project leaves the realm of the academy and enters the realm of politics—it becomes an effort to achieve a goal by force of numbers, not by force of reason.