The Amy Wax case at the University of Pennsylvania has rightly attracted a lot of attention. Her Ivy League Law School has grossly violated her academic freedom. She has been punished merely for expressing her opinion that Penn has imposed a regime of racial favoritism on some underqualified minority students. And she has said other things that rub against the fur of that luxurious cat, the woke university.
Amy is a good friend, and I support her fierce resistance to Penn’s attempts to silence her, but I’d like to draw attention to another law professor who has suffered an even worse injustice at the hands of his university. It may ring a bell. In May a year ago, Scott Gerber published an essay in the Wall Street Journal titled, “DEI Brings Kafka to My Law School.” It recounted how he was hauled out of class by campus police and escorted under armed guard to his dean, who then demanded his resignation without explanation. Gerber refused to resign but was then fired—still for no stated reason. But the unstated reason was that he had publicly criticized Ohio Northern University’s (ONU) illegal use of racial preferences in faculty hiring.
Amy has a national platform. Scott does not. I took up his cause and published a slew of articles publicizing developments in his case. What you need to know about Gerber is that he was the brightest light at his undistinguished university: a biographer of Clarence Thomas, the author of books published by Cambridge and Oxford, an in-demand lecturer at major law schools across the country, and the winner of his university’s major teaching awards.
His case is so outrageous that it attracted the attention of free speech advocates from every corner: the liberal American Association of University Professors, the libertarian Foundation for Individual Rights and Expression, the American Council of Trustees and Alumni, and conservatives such as the National Association of Scholars. Of course, to no avail. Once a contemporary university plants its flag in the fight for continued use of racial preferences, there is no going back. Moreover, the world of law schools is such that none dare break ranks. Gerber has been turned into a non-person, unemployed, impoverished, and unwelcome where he was once feted.
It is a situation few of us in America today could imagine for ourselves. Gerber broke no law. He simply criticized a university policy that was and is flagrantly illegal.
His university, caught doing something wrong, chose to keep escalating. ONU hired a private eye to get dirt on Gerber. Finding none, the university spread dark rumors. When those didn’t stick, it turned to outright fabrication. When a judge demanded that it present a cause for Gerber’s firing, it obfuscated.
Only after repeated orders and reprimands from the Court to explain the firing did the university finally admit that it fired Gerber simply because he criticized its racial preference policy in July of this year. It explained that Gerber had no right to criticize that policy—the university had already made up its mind about it.
The actual trial for Gerber’s complaint against the university is still a long way off. I stopped writing essays on the case last December, but ONU’s legal team figured I was still a key figure, subpoenaed my records, and subpoenaed me as a witness. But I’ve never met Gerber and have corresponded with him only to ask that he fact-check my accounts. If they want me back on the case, here I am.
As I have plunged back into the details, I have the impression that this story is somewhere between a Grisham novel of small-town corruption and an Evelyn Waugh novel of epic futility. Gerber likened his situation to Kafka’s The Trial, which makes some sense but misses the buffoonery of the villains who keep digging themselves in deeper.
America First Legal emerged as a deus ex machina to represent Gerber pro bono. Ben Flower, former Solicitor General of Ohio and a law clerk to Antonin Scalia, also represents him.
Regardless of the outcome of Gerber’s case, the message is clear. The acclaimed law professor reduced to a Medicaid supplicant is the story ONU and the greater fraternity of law schools would like other law faculty to note: Let’s not have any more professors speaking out against ABA-approved policies that mandate preferences for minority applicants.
If you do, prepare to be punished.
This article was first published by RealClear Education on October 22, 2024.
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