Last month the University of Pennsylvania sanctioned Amy Wax after a faculty-hearing board concluded that the tenured law professor had engaged in “flagrant unprofessional conduct” and had “a history of making sweeping and derogatory generalizations about groups by race, ethnicity, gender, sexual orientation, and immigration status.” While some observers felt the sanction, which included a one-year suspension at half pay and the loss of her named chair, did not go far enough, others saw in Penn’s decision an assault on academic freedom.
Robert P. George, director of Princeton’s James Madison Program in American Ideals and Institutions and a member of the Academic Freedom Alliance’s Academic Committee, called it “a flagrant case of hypocrisy and double standards.” Citing the Chicago Principles on Free Expression, the Heterodox Academy opined that “Wax’s statements may have been offensive to many in the academic community. But academic freedom cannot survive where professors cannot express controversial views on contested issues.” Joshua T. Katz, writing in The New Criterion, acknowledged that “Professor Wax says things that make me squirm,” but held that “a bit of squirming is good for the soul.” And in The New York Times, John McWhorter wrote that, although “Amy Wax loudly espouses views that most reasonable people find repellent,” that “does not justify punishing her for expressing them.”
Within hours of Penn’s announcement, the influential Foundation for Individual Rights and Expression (FIRE), which has advocated on Wax’s behalf for years, weighed in: “Faculty nationwide may now pay a heavy price for Penn’s willingness to undercut academic freedom for all to get at this one professor. After today, any university under pressure to censor a controversial faculty member need only follow Penn’s playbook.”
Some critics of Penn have found it troubling that the American Association of University Professors (AAUP), long the United States’ academic-freedom watchdog, did not defend Wax. Len Gutkin, writing in these pages, suggested that the organization’s advocacy may be “determined by prior political commitments, rather than a content-neutral approach to faculty-speech rights.”
We have a few questions. Are faculty truly at risk if we can’t disparage our students and discuss their grades as a function of their race or ethnicity, after being repeatedly warned that doing so violates university policy? Are we genuinely prevented from pursuing knowledge if we can’t invite Jared Taylor, a self-described “white advocate,” to speak in our classes? Should we feel thwarted as teachers if we can’t repeatedly make false statements that lead our students to conclude we will treat them unfairly? And is it surprising that the AAUP, whose near-century-old conception of academic freedom specifies that “faculty should be careful not to introduce into their teaching controversial matters which are unrelated to their subject, or to persistently introduce material which has no relation to the subject,” did not condemn the faculty committee and administrators who applied that very standard, among others, to Wax?
The answer to these questions is no. Why, then, the rush to insist that Penn’s decision to sanction Wax was an end run around academic freedom? Why the determination to lash the ideals and future of the academy to Amy Wax?
The defense of Amy Wax lays bare a consequential confusion between academic freedom and freedom of speech. That confusion is entangled with disapproval of hiring and evaluation practices that one way or another take race, ethnicity, and gender into account, as well as with the fear that criticism of those practices will lead to censure. Institutional policies and practices must indeed be open to debate, but it does not follow that faculty should be empowered to say anything they want, no matter how unsourced, irrelevant, or — yes — unprofessional. No slope is that slippery. Far from an attack on academic freedom, Penn’s action, however belated, is precisely the sort of judgment academic freedom is meant to safeguard.
By speaking of “controversial views on contested issues,” “things that make [one] squirm,” or — as the Academic Freedom Alliance would have it — “controversial statements on issues of law and public policy,” Wax’s defenders may give the impression that the claims in question are merely intemperate or politically indelicate, or that they express inconvenient truths. To appreciate what is really at stake, it is important to consider some of these claims in more detail.
Consider, for starters, the following remarks Wax made on a podcast uploaded to YouTube:
If you look out in the world and see that, let’s say, you know, there are relatively few Blacks in academic medicine or, you know, high-level science, more whites or more Asians, that just is the natural product of the fact that different groups have different strengths and weaknesses, and that is something our society should accept.
We know that — and I’ll just come right out and say it — on average Blacks have lower cognitive ability than whites. That’s just a fact.
The obsession with getting more Blacks into those areas and professions, I mean, that cannot help but impair and impede the medical research project.
Later in the same podcast, Wax says:
I lost count of how many times I’ve been called a racist. And my view at this point is, you know, being a racist is an honorific. To be called a racist means you notice reality, and, to me, that’s a positive thing, not a negative thing. That’s an occasion for praise and admiration.
Is what Wax says on a podcast relevant to her academic career? The AAUP has long held that academic freedom covers “extramural utterances.” Faculty members are also private citizens, and they should be free to express themselves in that capacity without fear of professional punishment. The AAUP has also repeatedly recognized that that dimension of academic freedom is limited. Extramural speech can constitute grounds for dismissal if it “clearly demonstrates the faculty member’s unfitness to serve.”
We think that Wax’s extramural speech does in fact demonstrate unfitness to serve — especially to the extent it touches on “issues of law and public policy,” the areas in which she claims academic expertise. We also think it is difficult to disentangle her “extramural” speech from her speech in a professional capacity. What she says is of interest primarily because an Ivy League law professor is saying it.
But for the sake of argument, let’s waive all that. Let’s limit our discussion to examples of Wax’s speech that are directed at Penn’s students or that comment on Penn’s students. This speech is directly related to Wax’s professional responsibilities. We draw the accounts from a request by Theodore W. Ruger, former dean of Penn’s Carey Law School, for a hearing board and from the findings of that hearing board. Wax has confirmed to The Wall Street Journal that “she doesn’t regret the remarks that led to her reprimand.” “‘I stand by what I say,’” Wax declared.
Here are some of Wax’s alleged acts in the classroom, as described in the Penn documents:
- “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.’”
- “Commenting in class that gay couples are not fit to raise children.”
- “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American,’ adding, ‘It’s a good thing, trust me.’”
- Inviting “a renowned white supremacist, Jared Taylor, to be the featured guest speaker in a regular meeting of her Law School course.”
- “Stating in class that people of color needed to stop acting entitled to remedies, to stop getting pregnant, to get better jobs, and to be more focused on reciprocity.”
- Demonstrating an “uncritical use of data and unfounded declarative claims in some of her courses.”
Here are just a few of Wax’s alleged interactions with students at Penn, as described in the Penn documents:
- Telling a Black student “who asked whether Wax agreed with panelist John Derbyshire’s statements that Black people are inherently inferior to white people, that ‘you can have two plants that grow under the same conditions, and one will just grow higher than the other.’”
- Telling a Black student “that she had only become a double Ivy ‘because of affirmative action.’”
- Emailing a Black student that “if blacks really and sincerely wanted to be equal, they would make a lot of changes in their own conduct and communities.”
Here are descriptions of some of Wax’s alleged comments about students at Penn, as described in the Penn documents:
- Making “repeated statements … in public about her students’ and Penn Carey Law School students’ grade distributions by race.”
- Claiming “that the University of Pennsylvania Law Review had a racial diversity mandate when it does not.”
Here’s a thought experiment: Take these words and imagine something like them in the mouth not of a tenured law professor, but of a journalist, a flight attendant, a postal worker, or a labor-and-delivery nurse. Is your reaction to leap to their defense? If not, what makes professors different? Why should members of our profession be insulated against the consequences of such speech, if members of other professions are not? The question is particularly urgent since faculty are already widely considered out of touch, and colleges are increasingly mistrusted. FIRE’s argument that the current “hyper-polarized political moment” means colleges must not hold faculty to professional standards seems to us dangerously wrong.
The insistence on uninhibited self-expression in a professional context has its roots in the fact that over the last decade, academic freedom has been falsely rendered an enhanced version of free speech, a special and near-unlimited entitlement of the academically credentialed. But academic freedom and free speech are distinct values, which operate according to importantly different logics. The First Amendment’s protections of speech are generally understood to require government neutrality with respect to the content of what is said in the public sphere. To enjoy constitutional protections, speech need not be true or reasonable. The substance of what is said is essentially irrelevant. By contrast, what academic freedom protects are precisely the processes by which researchers and scholars distinguish between what is true and false, warranted and unwarranted, credible and discredited. Academic freedom protects the ability to assess the content of what is said on its merits.
This means that academic freedom is intrinsically related to the reasons that can be marshaled for or against a claim in a way that freedom of speech is not. In the case of free speech, your right to say something is wholly distinct from the question of whether it is true or warranted. Invoking a right to speak freely is an entirely different language game than defending your claim on the merits, and you can do the former without also doing the latter. But with academic freedom, these two kinds of justifications — the right to say something and the reasons that can be given in support of the claim — are connected.
The ideas that belong in a university are ones that have survived scholarly scrutiny, as well as new ideas in the process of being tested. Academic freedom defends this vetting process, not the right to bypass it and say whatever one pleases, irrespective of its intellectual merits. And while being transiently wrong can be an important part of the pursuit of truth, being insistently and monotonously and incorrigibly wrong, as Wax has been, is not. Seen in this light, it is not Amy Wax who best models academic freedom but her colleagues at Penn, who have collectively exercised professional judgment to enforce the professional standards Wax flouts.
Since academic freedom, unlike free speech, is internally related to epistemological considerations — considerations of what it is rational to assert, and what not — to invoke academic freedom on behalf of an idea is at least implicitly to vouch for its continued viability in the scholarly debate, to consider it a candidate for knowledge. To suggest, as numerous commentators have, that Wax’s more outré professional utterances are protected by academic freedom, as opposed merely by freedom of speech, is thus to insist that they are worthy of debate and merit further consideration.
But they are not and do not, and the reason for this is not that they are controversial or offensive or squirm-inducing — all of which are at least consistent with an idea also being true — but that they are discredited and false. (They are also vile and hurtful, but as Michael Bérubé and Jennifer Ruth have argued in this context, hurtful claims can be protected by academic freedom; by contrast, academic freedom does not protect disregard for truth.) Unless you think Wax’s claims deserve a second look, you ought not to see Penn’s decision as a violation of anyone’s academic freedom. On the contrary, you should see it as an exercise of academic freedom. Academic freedom protects scholars’ judgment of each other’s work by the standards of the profession. Penn has exercised that judgment.
Academic freedom is not a license to ignore the standards of our profession. On the contrary, it is the freedom to allow our research and teaching to be guided solely by these considerations. Academic freedom is a working condition faculty members claim because it is necessary to our job of pursuing truth and sharing knowledge. It is therefore ironic and deeply troubling to see it invoked to suggest that faculty have the right to be less committed to truth-seeking than, say, journalists.
We recognize FIRE’s commitment to speech and the work it has done to defend that principle. We also think that FIRE contributes significantly to the current confusion over what academic freedom is. Although FIRE promotes itself as an arbiter of academic freedom, what it is truly interested in is campus free speech. The nation’s commitment to free speech has historically been proved by defending the extremes of individual expression: a burned flag, an obscene T-shirt. FIRE has adopted this approach as it defends students’ speech rights at public colleges. Problematically, it has adopted this same framework for academic freedom. FIRE celebrates Wax because she seems to them, and apparently to others, like a flag-burner, someone whose extreme speech is a test case of a principle. What makes her an attractive poster child for the cause is not her reasonability but the opposite: Her pronouncements seem to violate all academic standards.
In one of its several statements on Wax, FIRE declared, “If our colleges and universities are to achieve their missions as bastions of academic excellence, faculty like Wax must remain free to speak their minds.” This is preposterous. The speech for which Wax was sanctioned does not contribute to Penn’s mission. It runs counter to the mission of a university. That some of it may be constitutionally protected in the public sphere does not mean that it must be welcomed as appropriate in an academic workplace. Whatever principle may be at stake here, it is not academic excellence.
To assert that a faculty member judged incompetent by her peers is, by virtue of this very judgment, an example of what colleges are compelled to defend, is dumbfounding. Wax rejects the standards of her profession. In so doing, Wax rejects “academic excellence” in the only way it can meaningfully be defined: by the judgment of a scholarly community. The devaluing of false claims, not their defense, is the purpose and proof of both academic freedom and academic excellence.
What critics of Wax’s punishment are really attacking is the process that lies at the heart of the university: scholars’ judgment of each other’s work. Why are participants in higher education willing to burn it down to avoid chilling Amy Wax’s repellent speech? One reason is concern that scholarship and teaching will be judged repellent when they are not. That FIRE, the Academic Freedom Alliance, and Heterodox Academy have seized on an outlier like Amy Wax — whose punishment consists of the loss of half a year’s pay, of an endowed chair, and of summer pay, but not of her tenure or benefits — as their exemplar of the profound risk conservative tenured faculty face for asserting reasonable but unpopular scholarly views suggests that there are few exemplars of that risk to be found.
But it would be disingenuous to pretend that job loss is the only risk faculty run. Faculty members worry that offering reasonable dissenting views, particularly about subjects that fit under the broad banner of diversity, will have intangible but painful professional consequences. That worry matters. But the remedy is not the abandonment of professional standards. The remedy is the application of such standards. We should act more like scholars, not less. This is not simply an ethical requirement but an existential one. If scholars can’t professionally vet each other’s scholarship and teaching, then there is no reason for colleges to exist.
We recognize the concern that academics other than Wax have said offensive things about different topics — Israel’s war in Gaza is often cited — without facing sanction. But Wax herself faced no sanction until years of warnings and engagement failed, whereas colleges opened immediate inquiries into whether faculty speech about the war in Gaza is or is not protected by academic freedom. More to the point, it is beneath the dignity of our or any profession to insist that if some members violate its professional standards, there should be no professional standards at all. The answer to bad speech may be more speech, as the common formulation goes. It does not follow that the answer to bad teaching is even worse teaching.
The organizations and faculty who defend Wax are often the same ones who criticize students as fragile snowflakes who must be taught to withstand the heat of vigorous debate. Students should not, they sternly declare, expect to be coddled. We agree. Nor, however, should students be understood as simply the backdrop to professors’ romantic self-conceptions. When Penn’s students make clear they reject the authority of a professor who has been found to offer groundless disparagement as scholarship, they are not demanding to be coddled. They’re demanding to be taught. When a defender insists Wax be given deference not because her work pursues truth but because “she believes what she is saying,” he is demanding she be coddled.
The Wax affair does offer lessons, but they are not the ones the self-appointed guardians of academic freedom would like the public to draw. Were the public to become convinced that faculty members have the right to say whatever we please, irrespective of its merits, it would be hard to see what reason they would have to support colleges, or to attend them. Academic freedom is not a natural right. It is a condition of doing the modest job with which we have been entrusted. Colleges are, in the end, workplaces, and the nature of the job is the vetting of ideas. If there is a slippery slope to be avoided here, it is not, as FIRE alleges, that “any university under pressure to censor a controversial faculty member need only follow Penn’s playbook,” but that institutions seeking to move up FIRE’s ranking of colleges will have little incentive to rein in faculty who reject the disciplinary pursuit of knowledge. The risk is not that we lose our jobs, but that we render meaningless our profession.
FIRE has produced a video on academic freedom, in conjunction with New York University, as part of a series of videos that colleges are meant to share with students. The video aptly describes a scholar’s right, within the paradigm of academic freedom, to teach in a way that is not beholden to external influences such as donors. So far so good. The video makes the point that students cannot disrupt class with emotional outbursts and cannot thwart the processes of scholarly teaching. Also fine. What is missing is any discussion of what academic freedom demands of the faculty. In the new conception held out by Wax’s defenders, the rights accrue to faculty and the obligations to our students. The effect of this approach, made clear in the response to Wax, is to feudalize the relationship between students and faculty: The former must live within whatever classroom worlds the latter makes. This is not a brave defense of freedom. It is self-indulgence.