Amy Wax can speak her mind but not put students down (opinion)


“Jonathan, you may be aware by now that Penn has begun the formal process of sanctioning me, including stripping me of my position and firing me. Penn’s effort is based solely on my speech and opinions…and is part of a bold attempt to purge the “unawakened” from the academy. It’s serious, and Penn sees what they can do. Penn is not a forum where dissenting opinions are welcome. On the contrary, they are penalized.

“Also, if you could tweet about my case… or talk about it, or write an op-ed about it, that would be great! I know you are an advocate for free speech and against cancellation. Now is the time to stand up and be counted!

“Best and thank you. Amy.

* * *

Amy is Amy Wax, of course, the much-maligned University of Pennsylvania law professor. Last month, the Dean of Wax sent a 12 page letter to the university’s Faculty Senate, asking it to review Wax’s conduct and impose a “major sanction” on him. The letter cited Wax’s “intentional and relentless racist, sexist, xenophobic and homophobic actions and statements.” And just last week, Wax’s email arrived in my inbox, with a telltale tagline: “Penn vs. Wax.”

For the record, I met Wax exactly once and sent him several emails. But I also teach at Penn and, as Wax noted, I’m a zealous lawyer of freedom of expression. I have editorialized in favor of Wax’s right to speak her mind, even when I believed she was spreading disproved racial and ethnic stereotypes. I was – and still am – outraged by some of his statements. But the best response to Wax is to raise our voices, I argued, not drown out his. Censoring Wax makes her a martyr of free speech in the dark world of white supremacy, which thrives on victimization. And it also makes bona fide criticism of liberal social policies less likely, because people who oppose those policies will fear being censured themselves.

Still, the letter on Wax from Penn Law School dean Theodore W. Ruger includes new information about Wax’s personal behavior, which is another matter. Professors should be free to support any party or political position they choose without fear of being penalized by their institutions. But their own position as professors also gives them a special duty to treat students and their colleagues with decency and civility.

If the charges in Ruger’s letter are correct, Wax breached that duty. Wax allegedly told a black student that the only reason the student was admitted to two Ivy League universities was “because of affirmative action.” According to Ruger’s letter, she told an openly gay colleague that “same-sex relationships are self-centered, selfish, and not family- or community-oriented.” And after several students with foreign-sounding names showed up, she was reportedly elated when another student showed up with a more familiar name. “Finally, an American,” she reportedly said. “It’s a good thing, believe me.”

Wax should be free to oppose affirmative action, same-sex marriage and immigration. These are matters of public debate, and we cannot learn more about them—or help the public understand them—if we cannot discuss them ourselves, fully and opened. That’s why I will continue to defend Wax’s right to express “dissenting opinions,” as she wrote in her email, even though I find them bigoted and repugnant.

But Wax has no right — none — to belittle or abuse specific individuals in his professional orbit. To say that affirmative action leads to the admission of unqualified students is one thing; Telling a particular student that she was unqualified is quite another. Likewise, it should be acceptable to advocate for restrictions on immigration to America. But it is not correct to tell immigrants or international students that they are less valued than native Americans. It’s a gratuitous insult, not a political statement, and it has no place in a college classroom.

This is why the 1915 Statement of Principles of the American Association of University Teachers – the founding document of modern academic freedom – insisted that freedom should never be used as a cover for inept or inappropriate conduct. Academic freedom “in no way” allows faculty members “to be free from any restriction as to the subject matter or manner of their speech,” the statement warns. Instead, he urged faculties to “purge” their “incompetent” colleagues, via careful procedures involving judicial committees selected by faculty governing bodies or the faculty as a whole.

Otherwise, academic freedom can be used – and abused – to justify anything a professor does, no matter how heinous. Academic freedom does not allow you to mock or denigrate your students. It doesn’t allow you to rate them based on their looks or whether they will sleep with you. It does not allow you to harass or threaten colleagues.

And, most importantly, it doesn’t – or shouldn’t – allow you to teach badly. I recently wrote a book on the history of college education, particularly focused on campaigns to improve it over time. At every turn, professors invoked academic freedom to resist any effort to control or evaluate their teaching. A dean of the University of Chicago noted sadly in 1910 that in the minds of most faculty members “the university ideal of academic freedom seems to be violated when a supervisor enters the classroom of a man “.

That was five years before the AAUP statement, which sought to differentiate politics (which we should protect) from incompetence (which we shouldn’t). But over the century that followed, my research revealed that underperforming teachers continued to rely on academic freedom “as a blanket defence,” as two professors wrote in 1955. Forty years later, observed two other researchers, little had changed; faculty have always insisted that academic freedom means “my right to do what I want in my classroom.”

This is not the case, of course. Wax’s reported behavior was cruel and incongruous with his responsibilities as a faculty member. The university would be within its rights to sanction her for this.

But that should never penalize her for her political beliefs. And it’s certainly reasonable to wonder if Penn is using his classroom behavior as a power of attorney to punish her for them. Dean Ruger’s letter to the Faculty Senate repeatedly chastised Wax for his “public statements” about race and gender, which, like his classroom conduct, inflicted “harm” on students and colleagues, Ruger charged. “Wax’s pervasive and derogatory racism and sexism expressed in public statements, combined with his behavior in the classroom, lead reasonable students to conclude that they will be judged and assessed on the basis of their race, ethnic origin, gender, national status or sexual orientation rather than academic performance and “true merit,” he writes.

Still, we must strive to separate, as best we can, Wax’s public statements from his alleged classroom behavior. I realize that minority students, in particular, might have felt equally threatened by his personal and public remarks. But if we sanction his political claims for causing “damage,” almost any speech can be censored on the same grounds. Pro-life students will say they have been wronged by pro-choice students, and vice versa; teachers who support gun rights will be muzzled for making others feel unsafe; anyone who opposes trans athletes on women’s teams (a very controversial issue at Penn) will be punished for threatening sexual minorities. And academic freedom will be a dead letter.

It is already hanging by a thread. Many state legislatures have considered or passed bills banning teaching in K-12 schools – and, increasingly, in college classrooms– about so-called “divisive concepts” like Critical Race Theory and “The 1619 Project.” False equivalency alert: I don’t think these programs and Wax’s claims about race are the same. But other people will assimilate them, which is the whole point here. Once we decide that his political statements are too dangerous (sorry, “divisive”!) to be freely expressed, we will have no support when lawmakers try to censor others.

I understand — and in some ways share — the temptation to fire Wax for his public comments about race and gender. Why should a tenured professor be allowed to say that people of color throw morethat Asians don’t value freedom and that blacks have “Different average IQs” from those of non-blacks? Here’s why: because we don’t want a university where everyone is looking over their shoulder, wondering if what they said might end their career. If Wax is thrown out, how many people will feel free to criticize affirmative action when it comes before the Supreme Court in the fall? You might answer that these people are racist, so it’s a good thing when they bite their tongues. And then you’ll have proven Wax’s point: the whole point here is to purge dissenting opinions. I don’t want her to be right about that. Do you?

* * *

Dear Amy,

Thank you very much for your kind message. I share your concern about suppressing dissent in the academy, of course. And insofar as the current attack on you is aimed at punishing you for your “speech and opinions”, as you write, I strongly and unequivocally oppose it. You should have every right to express those opinions, especially at a time when academic freedom is under tremendous pressure and challenge across the country. I will never stop defending him.

But Dean Ruger’s letter also describes behavior at work on your part that is – quite simply – indefensible. I was not present for any of these episodes, and I realize that they can be twisted during the investigative process. But if your comments to students and colleagues are reported accurately, I believe they exceed the bounds of proper professional conduct.

So I plan to write a column that supports your right to speak your mind, under the umbrella of academic freedom, but also argues that some of your alleged behavior should not be protected by it. This is indeed the time to be counted, as you note. And I want to be counted as someone who has never wavered from his commitment to open, unfettered expression — and civil, reasoned speech — in the American Academy. We need both, now and more than ever.

I’m sure it must be an incredibly stressful time for you and your family. I hope the next steps bring you health, hope and peace.

Sincerely, JZ


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