Defending Freedom of Speech (Still) Requires Defending Odious Speech

The case of University of Pennsylvania academic Amy Wax tests academic freedom principles.

University of Pennsylvania professor Amy Wax. Photo credit: C-SPAN

If you pay any attention to academic freedom or freedom of speech debates, you’re probably familiar with Amy Wax.

The University of Pennsylvania law professor is pretty much a professional provocateur at this point, having gotten herself in hot water for a long slew of controversial statements over the past few years. Some examples:

• She thinks the United States may be better off with “fewer Asians and less Asian immigration,” because it’s not clear whether the “spirit of liberty” beats in “their breast.”

• She has argued that “gay couples are not fit to raise children.”

• She has stated that “Mexican men are more likely to assault women.”

• She believes that the United States might be better off with “with more whites and fewer nonwhites.”

Oh, and she also invited a white nationalist speaker, Jared Taylor, to address her classes on more than one occasion.

In the past week, all of this controversy finally caught up to her. UPenn has announced that it will be upholding sanctions placed on her that involve a requiring her to note during public events that she does not speak on behalf of the law school, suspending her for one year with half her typical pay rate, and removing her named chair and summer compensation. She will not be fired.

The faculty senate that oversaw the investigation into Wax argued that she was not being penalized for freedom of expression. Rather, she was being penalized for unprofessional conduct:

We regard this to be a case not of free speech, which is broadly protected by University policy as articulated in the Faculty Handbook, but rather of flagrant unprofessional conduct by a faculty member of the Penn Carey Law School, and of the University of Pennsylvania. This conduct has had a detrimental impact on equal access to educational opportunities at the Law School and on the community more broadly.

They argued that her remarks “impacted the learning environment” for minority students:

We do not dispute the protection Professor Wax has to hold her views or to express them in public. However, when controversial views, rejected by most peers and unsupported by peer-reviewed scholarship, are presented as uncontroverted scholarly facts by a faculty member of the University of Pennsylvania, and when those views are, additionally, demeaning and demoralizing to minority groups, they cannot help but inequitably impact the learning environment at our institution, as well as violate behavioral professional norms.

To put my cards on the table, I find almost everything Wax says to be offensive or at least factually wrong. I have listened to her interviews with the popular podcaster and economist Glenn Loury for years.

My takeaway is that she represents a kind of paleoconservative view that is deeply skeptical of cultural change, one that is almost extinct in academia today. Her commentary reflects an almost paranoid view of the people around her, and she is clearly unsettled by the changing demography of the country.

But in all of its investigation of Wax, the university did not find that she was directly discriminating against students — such as by giving students of different ethnic or religious backgrounds worse grades or preventing them from having access to instructional materials.

Were Wax a teacher in a K-12 public school, it would be more than fair to question whether these sorts of acerbic remarks would make her an inappropriate educator for children who have no choice but than to take her class.

Law school, however, is different. Everyone there is an adult, and they are there by choice. Unlike the public school system, UPenn is not directly operated by the government. Parents are not being forced to pay for her salary and to have their children sit in her class.

One way for students who object to Wax’s remarks to respond to her would be to simply stop taking her classes. Colleges cancel classes all the time because they are undersubscribed. If a student feels uncomfortable being taught by someone who regularly makes offensive utterings, they would have the power to opt-out.

But the more UPenn sanctions Wax and punishes her for her political rantings, the more they are actually taking power away from students. Students who are adults should have the right to be exposed to ideas, even ones that many people find challenging or offensive. If they want to take her class, they should be allowed to do so. By starting down the road of sanctioning her, the university risks doing exactly what the faculty senate said it didn’t want to do: punish someone for freely expressing their speech.

Over the past couple decades, colleges and universities have become increasingly censorious. The sources of that censorious pressure are numerous, but they can include anything from students, to administrators, to donors, and now even the U.S. Congress.

While we don’t know what tomorrow’s free speech controversy will look like, one thing is clear: censorship is cumulative. As soon as a university decides to punish one professor, student, or administrator for their political speech, another one is guaranteed to be on the chopping block in the future. Every new prohibition creates a new norm, and that norm may be used against someone you dislike today while being used against someone you like tomorrow.

Absent evidence that Wax was actually discriminating against her students in a way that denied them an education or fair treatment, this case seems like a blow against free speech.

Those of us who are adamant about freedom of expression and the idea that adults should be able to talk things out without an authority coming in and pushing ideological transgressions have to defend Wax, even if she’s far from a perfect martyr.

I’ve noticed that when she’s criticized for an offensive remark, she tends to double down rather than ever show any introspection or reflection. But life doesn’t always give you perfect exemplars to defend your principles (in fact it rarely, if ever, does). Which is why I think people should listen to the free speech group FIRE on this one:

In our hyper-polarized political moment, faculty increasingly find themselves called “unprofessional” for their views on Israel and Gaza. Or on race. Or gender. Or abortion, or immigration, or the police, or COVID-19, or politics more broadly. Often the only thing standing between the angry college administrator — or the disgruntled donor, or the social media mob, or the local legislator coming for that professor’s job — is the time-honored principle of academic freedom.

That’s why, regardless of whether you care for Amy Wax’s opinions, you should care what happens to her. 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.