The hard case for free speech: Amy Wax

April 18, 2022 • 12:30 pm

As John Stuart Mill emphasized, free speech must protect words we find odious and offensive, for it is only by honing our own beliefs against such words that we can truly examine how well we can defend our beliefs. And in some cases what we find offensive might actually cause us to reconsider or views, or even change our minds.

Amy Wax, the Robert Mundheim Professor of Law at the University of Pennsylvania Law School, seems to fall largely into the first class: those who say repugnant things that most reasonable person can only oppose. I haven’t followed her statements closely, but she does seem to have a racist bent, and the Wikipedia article on her cites a number of racist statements she’s made along with other statements that have offended people (and me). The thing is, however, that she’s made them all outside of class, and “extramural speech” like that is protected by the First Amendment as well as by the consonant policies of the University of Pennsylvania (a private school). So long as Wax doesn’t import bigotry into the classroom, creating an atmosphere that harasses students, she is protected by tenure and her school’s avowed policies.

That doesn’t cut any ice with people like Hana M. Kiros, a black Harvard student who wrote an editorial in the Crimson (the Harvard student newspaper) calling for Wax to be fired.  Click to read:

Kiros cites a number of Wax’s statements that she finds racist, white supremacist, and offensive. Here are a few:

Put plainly, Wax favors non-white people being kept out of leadership positions and, ideally, the country. That’s in America’s best interest, she argues, because “countries ruled by white Europeans” simply have values that are “superior.”

“The third world, although mixed, contains a lot of non-white people,” she warns.

Tracking Wax’s declarations of white supremacy is genuinely dizzying. This month’s iteration is a viral clip of her on Tucker Carlson Today, in which Wax described her Indian colleagues at Penn as coming from a “shithole.” She then complains that “non-Western people,” particularly “American Blacks,” feel a “tremendous amount of resentment and shame” towards “Western peoples” because of their “outsized achievements and contributions.” Wax scrunches her face. “I mean it’s this unholy brew of sentiments.”

Wax’s April interview with Carlson, who hosts America’s most-watched cable news show, has led to a resurgence in calls for her firing — a cause that last surged this January when Wax said the U.S. was “better off with fewer Asians.”

And Wax was punished by Penn for one of her statements.


Wax was barred from teaching required classes in 2018 after implying, falsely, that Black Penn Law students never graduated in the top quarter of their class. [JAC correction; the linked article says top half of their class, but that statement was also false.] This January, Penn Law Dean Tedd Ruger initiated the University’s process for formally sanctioning tenured faculty “to address Professor Wax’s escalating conduct.” Ruger declined to comment for this article to “preserve the integrity of this process.” He wrote, however, that “[t]he Law School has previously made clear on multiple occasions that Professor Wax’s views do not reflect our values or practices.”

I haven’t seen Wax’s quotes in context, but I’ll take Kiros’s word that Wax is a bigot towards non-white people. But whether she should be sanctioned for that, given that these statements were made outside class, seems to me doubtful under the First-Amendment-modeled speech principles of her university. In fact, the Academic Freedom Alliance (AFA) has called for rescinding the sanctions against Wax (see their letter to Penn here). They are not defending her views, but are vigorously defending her right to express them—extramurally.  Here’s an excerpt from the AFA letter written to Penn by Keith Whittington, chair of the organization’s Academic Committee. (Note again that Penn is not a state university, and therefore punishing her is not punishment by the government, but, as Whittington notes, the school has embraced First Amendment principles vis-à-vis extramural speech. Further, any good school, even if private, should fully embrace the First Amendment.)

Whittington to Penn:

This call for the university to take formal action against Professor Wax is a clear threat to her freedom of speech. Such a public interview is a form of what the American Association of University Professors calls “extramural speech.” Extramural speech is a protected form of freedom of expression. When professors “speak or write as citizens, they should be free from institutional censorship or discipline.” As the AAUP has emphasized, “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for the position.” The University of Pennsylvania has explicitly embraced those principles in Article 11 of the Statutes of the Trustees. The university has stated clearly that faculty members have the right to express their personal opinions as citizens and “when speaking or writing as an individual, the teacher should be free from institutional censorship or discipline.” Professor Wax was acting well within those rights in commenting on American immigration policy. It is quite clear that her public comments as a private individual on matters of public concern cannot, consistent with Article 11 and general understandings of free speech in the United States, be understood to constitute a “flagrant disregard of the standards, rules, or mission of the University or the customs of scholarly communities” that might give rise to disciplinary action under the Faculty Handbook, and the list of major infractions provided in the Handbook in no way resemble the actions at issue here.

Politicians and members of the campus community are free to disagree with Professor Wax and to publicly express those disagreements, but the university must stand firm when those disagreements turn into demands that members of the faculty be sanctioned or terminated for expressing their political opinions in public. The AFA calls upon the leadership of the University of Pennsylvania to reaffirm and adhere to its free speech principles by making clear that Professor Wax will not be sanctioned in any way for her constitutionally protected speech.

I think Whittington’s argument is sound. Wax is being punished for extramural speech, which violates the the stated principles of Penn. It doesn’t matter that it is offensive and vile; the First Amendment (and Penn’s own policy) is there to protect all speech, and of course almost all political speech is considered offensive and vile by some people. (Again, I am not agreeing with what Wax said!).

Kiros (and apparently Penn) is trying to circumvent the AFA’s argument with her own novel response: Wax’s extramural speech makes students so uncomfortable that they have been rendered incapable of learning from her. Wax’s bigotry has, it’s claimed, rendered her ineffectual as a teacher. Kiros echoes the charges against Wax that Penn is now “investigating”:

First: “That her conduct is having an adverse and discernable [sic] impact on her teaching and classroom activities.”

Second: That Wax’s “pervasive and recurring vitriol and promotion of white supremacy” made it “impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus.”

These charges are a bit conflated. If Wax’s teaching and behavior in the classroom is impaired by how she acts in the classroom, or if she makes statements intended to offend students in her class because of their race, then yes, she is violating her duties as a professor and should be sanctioned. But if her teaching is “impaired” solely because of bigoted statements that she makes outside of class, then the students must try to ignore that and concentrate on what she says in class. If they can’t ignore that, then they should not take her classes. But in this second case Whittington is right: sanctions are not appropriate given Penn’s own policies.

Kiros doesn’t support the first accusation, but it’s clear that she herself would find it hard to learn from Wax (she is at Harvard and doesn’t take Wax’s classes, which are given at Penn):

If a student knows their professor views them as inherently inferior, how can learning proceed?

I attended a majority Black high school but, during senior year, was the only Black student in my physics and math class. In them, I learned to shrink myself: never speaking unless cold-called or daring to ask questions, even when I desperately needed to. In those classes, Black students not on our school’s “advanced” track (teachers and students called them “the general kids”) only existed as the butt of cruel jokes — mocking, relentlessly, how they dressed. Spoke. Existed. So I chose to never say a word, terrified that if I did, I might slip up and confirm the worst I knew some assumed of me. My learning — which, ideally, should’ve allowed for fearless inquiry — undeniably suffered.

That, however, isn’t a very good parallel to the Wax situation, because Kiros is simply assuming that her teachers were bigots and looked down on her. But Kiros continues:

If Penn’s process rules that Wax’s public comments are un-sanctionable, it will be a depressing day. Such a decision would signal to all of academia that clean-cut advocacy for white supremacy is employable conduct if you have tenure — something unfathomable in nearly any other profession. Under such a system, it’s students that lose.

Again: the argument is that some “free extramural speech” by professors should be prohibited because it offends people to the degree that it makes them unable to learn. Ergo, it impairs the professor’s ability to teach. I am not sympathetic to this argument, and would tell the students to leave their offense at the classroom door.

If, on the other hand, Wax is indeed violating normal expectations for what she teaches and what atmosphere she creates in her classroom, then she should be investigated. I have seen no evidence for that, but I suppose it will be sorted out by Penn. And if she’s sanctioned illegally, lawsuits will settle it, as the courts have a pretty settled concept of “free speech” and Penn has clear policies about it.

Yes, this is a hard case, but it’s the hard cases that make good law, at least when free speech is concerned.

h/t: Scott

24 thoughts on “The hard case for free speech: Amy Wax

  1. On the grounds that it’s fair to judge people on their full, in-context statements (rather than on sentence-fragments quoted by such as Kiros who wants them fired) — and perhaps on the grounds of giving someone enough rope to hang themselves — here is a 3-min segment containing the “shithole” description:


    It is certainly not tactful. And it says things that, nowadays, are never said in “polite society”. She very definitely is culturalist, that is, lauding the superiority of European-origin culture. That itself is not “racist” (under sensible definitions of that term). Does she go beyond culturalism into racism?

    It’s worth noting that similar statements by academics deprecating white culture would be ten-a-penny nowadays.

    1. That’s what Wikipedia implies. I’ll just take for granted that she’s a culturalist and a racist; my point is that if she says these things extramurally, she should not be sanctioned by her university. Of course those who oppose her ideas have every right to direct counterspeech at Wax or anybody else.

      1. I agree that what she says should be within the limits for an academic — if, for no other reason than a few people saying such things being a necessary foil for others to then produce counter-arguments. (And I don’t see any evidence that she is treating students in her classrooms unfairly.)

    2. Right, I don’t see her saying anything that should count as outright racist. Do cultural differences have zero consequence? Is that what the left now believes?

  2. I agree with Jerry. If a professor, extramurally, denies that the penis is a female sex organ, can a student then legitimately claim that they can no longer learn from this professor? What about a professor, who, extramurally, says that abolishing the police is stupid? What about a professor, who, extramurally, denies that words are violence? It seems to me that what we have here is an example of the standard modus operandi of the woke: expand the concept of harm in order to silence people who you disagree with.

  3. When I was a young, still untenured, paleontology professor, I taught a course on the history of the earth and its life, called Historical Geology. Not surprisingly, there was a strong dose of biological evolution in that course for, as Dobzhansky rightly said “Nothing makes sense, except in the light of evolution.” One student in the class disrupted my teaching regularly, complaining that she shouldn’t have to be subjected to evolution in the classroom. Eventually—after considerable concern that she might complain to the administration and bring about more trouble than a young professor needs—I put my big boy pants on and told her the following (paraphrasing): “No one is forcing evolution upon you. If you don’t want to hear about it you can drop the class and take something else.” It worked. She went away. Penn students can take another class if they don’t like the subject matter or the way it’s being taught. College students need begin the transition to the adult world, which is rife with things we don’t like but that we nonetheless have to deal with in a civil way.

    1. Yikes! That must have been stressful. I’ve had some pushy creationists in my classroom too, but not quite that bad. I wonder if reminding them that Jesus was said to have said “Render unto Caesar the things that are Caesar’s”, would be of any help.

  4. Wax’s extramural speech makes students so uncomfortable that they have been rendered incapable of learning from her.

    This is a bad argument. Professors should make students uncomfortable…i.e. by challenging their assumptions and conclusions, to see if the student’s ideas are well reasoned.

    …rendered her ineffectual as a teacher.

    Better, but still not good. I can see students ignoring her arguments on because they think she’s just being racist, or not taking her (elective) classes because she is a racist. This could be bad for the school, depending on how far it goes. If Penn wants to be a foremost legal school on Example Law, and nobody is now taking Example Law because Wax teaches it, that’s a problem. But that’s an extreme example; in practice, it’s hard to say if she’s really ineffectual or just disliked without “on the ground” data about student patterns (who takes and specializes in what).

    “That her conduct is having an adverse and discernable [sic] impact on her teaching and classroom activities.”

    Again better but not good. Probably the sort of charge that should be investigated and based on actual student data, not simply assumed to be true because she’s a racist.

    That Wax’s “pervasive and recurring vitriol and promotion of white supremacy” made it “impossible for students to take classes from her without a reasonable belief that they are being treated with discriminatory animus.”

    This is probably the best argument of the lot. The fact that she has made prejudgmental statements about Penn law students based on race is something I think the school should act on, because that indicates (at least to me) that she can’t separate her “extracurriculars” from her job. I know some folks might see this as splitting hairs, but IMO if she wants to go on Fox and say blacks are stupid, okay free speech. If she wants to go on Fox and say at Penn black law students can’t do as well as white ones, then that’s a workplace discrimination issue and likely violates some non-discrimination clause in her professorial contract with Penn. It’s a difference equivalent to a professor telling a sexist joke on tv vs. hitting on one of their students.

    Something of a tautology I know, but if you can’t separate your work speech from your social speech, then everyone can very reasonably expect that you can’t separate your work values from your social values. If you can’t talk your right-wing points socially without mentioning Penn, then Penn administration and students are justified in thinking you can’t practice your right-wing values socially without practicing them at Penn.

    And look, this is not something I’m just making up for Wax. Every professor should or does know this: you don’t drag your employer/university into your personal battles. Not by representing it when you don’t. Not by trash talking it. She’s trash talking her place of employment.

    1. > If she wants to go on Fox and say at Penn black law students can’t do as well as white ones, then that’s a workplace discrimination issue and likely violates some non-discrimination clause

      Do you have a source for her saying this?

      What she says in the linked piece is that, in the past, statistically speaking, they have not. Not that they cannot, or could not. But that they did not, past tense, in terms of the law school’s own grading rules. This is a factual statement which her employers could easily refute, by releasing factual data which they certainly have on file, if they know it to be false. Or showing this data to a few trusted 3rd parties. They have not done this.

      Whether facts can be discriminatory appears to be a matter of some debate. But the traditional idea of workplace discrimination would require behavior by one person towards other specific people.

      It’s possible that some facts (or potential facts) are so ugly, so divisive, that those with teaching duties should be forbidden to speak about them, as a condition of employment. That may not be a crazy rule to have, in the name of peace & learning. Although it would surely need to be written into the contract before hiring them. And it downgrades professors to something more like teachers, hired hands, brand ambassadors for Penn — where the traditional understanding would have been the reverse, the university is defined by its faculty, it’s collection of scholars.

      1. The linked article indicates she hedged comments with phrases like “I don’t think I’ve ever seen…” And why should anyone take the results of her course as an objective measure of performance? That is circular logic – you cannot cite the statistical results of the professor’s grades of black students if the issue in question is whether the professor is grading black students fairly.

        I would not say that she should be forbidden to speak ugly facts about black student performance at her place of employment. But I would say that nobody should be doing it in an off the cuff manner. Pull student records, do a survey, publish it in a journal, then talk about your research results. Compare grades across courses, to see not only if your intuitions hold up about your own class but about others. Better yet, have peers who don’t share your biases help you do the research, because that will send a much more powerful message to the administration if you’ve got libs and conservatives agreeing on the facts. In these ways, see if your intuitions hold up to scientific scrutiny before you talk about your place of employment on Fox. That’s professional. That’s responsible. The truth is a good defense, but “In my opinion” type statements are not that sort of truth. They’re merely a way of lowering the truth bar to get your opinion in.

        Someone who persists in making ‘in my opinion’ derogatory statements about their workplace, in public, without that sort of research? Yep I have little problem with their employer calling them to the carpet over it. Note also they didn’t fire her. They didn’t even stop her from teaching. They just shifted her teaching load from early year required classes to electives. Some might consider that failing upward.

        1. > results of her course as an objective measure. That is circular logic

          I am pretty sure that law schools routinely rank the whole class based on all courses. A student’s rank is very important for jobs and clerkships etc. This would be what “top half of the class” means. It’s not about one course.

          And I also think she has clarified somewhere that her own course’s exam was graded blind, perhaps even by other people.

          > Pull student records, do a survey, publish it in a journal, then talk

          Yes, this would be better. But the problem isn’t that she is lazy to do the work. The problem is that such records are jealously guarded.

          > The truth is a good defense

          Yes. And to refute her (admittedly anecdotal) claims, her employer could easily release data showing it obviously false. Like the class ranks for the last 10 years, by race, SAT scores, etc. Her class vs other professors’. They have this in a spreadsheet somewhere, for sure.

          But they don’t take this path. Instead, they release carefully worded statements about people’s emotions.

          It’s possible that there’s no way to square this. To both have honest open factual enquiry, *and* a welcoming atmosphere to all individuals. Both seem desirable. I think this is a core problem which diverse, democratic, societies don’t really have an answer for. Much as I like science I’m not sure that open factual enquiry here will improve society. But having a priesthood (of deans) spout socially convenient fictions instead also appals, as I’m sure it does many other irreligious readers.

  5. “It worked. She went away.” I would consider that a defeat.
    Don’t get me wrong, some defeats are inevitable.

  6. I am curious why nobody here, so far, has noted that Wax has been removed from teaching REQUIRED CLASSES. In other words, classes that all students must take to earn their degrees. Doesn’t that change anything? Based upon her statements, even extramural, I believe it is unconscionable to expect non-European students to be in a classroom with a professor who clearly believes you are inferior and unworthy. My mind could be changed on this if there are guarantees that no minority student would ever have such an odious person have the power to determine his or her grade.

    1. Yes, that’s a distinction worth making. She still teaches classes, but has been removed from teaching mandatory intro law classes. It seems a fair compromise given her tenure status.

  7. I would never accept anyone’s word that someone was a racist these days. The word is tossed around far too easily and meaninglessly. I listed to the link that Coel provided above (thanks!), and if what she says is not to be permitted in the US than we might as well give up hope of combating the Woke. This isn’t about racism, it’s about making sure there is a monolithic view in our institutions, and that’s bad.

    1. Notice the need to play weird word games in making these accusations. It’s dishonest, and the accusers know it:

      > after implying, falsely, that Black Penn Law students never graduated in the top quarter of their class.

      This is claimed “false” because a dean said:

      > “Black students have graduated in the top of the class at Penn Law,”

      What does “in the top of the class” even mean? It’s a made-up expression. *At* the top means the top score (or tied). It wants to sound like that, but not say that — so we should infer that this didn’t happen. Should we also infer that none scored in the top quater? That would have been the more obvious refutation of the claimed statement.

      But this statement also isn’t what Wax said. She made a statistical claim: “I don’t think I’ve ever seen a black student graduate in the top quarter of the class, and rarely, rarely, in the top half”.

      This claim would also be easy for deans to refute, if it were false. They could simply release a spreadsheet of class ranks by race, suitably anonymised. They certainly have this data. But they won’t.

  8. I heard her on Gad Saad’s (?) podcast awhile ago. Her opinions are quite far right but not hateful (there, anyway) and certainly didn’t rise to the level of even considering cutting her out of the debate and silencing her.
    Otherwise how would we know she’s wrong on many things? The left is too fast to cancel people they don’t agree with often citing “harm”. Right wing is not automatically KKK.

  9. Am I off the mark with this analogy…

    John Wayne was a racist and misogynist – I still want to watch his films because they are good (he’s not the director, so any problematic themes are not his doing).
    I could boycott his films – but his acting is divorced from his personal views.

    Only an analogy – not one-to-one correspondence.

    ‘Countries ruled by europeans have superior values…’
    Of course, the woke equivalent is ‘countries rules by europeans have inferior values…’
    Both seem problematic and as a binary, unproveable. But I am not going to boycott a class taught by a wokeish lecturer (who decries european values en masse), as long as that is not conveyed during the course.

    I would feel uncomfortable with someone who expresses racist or supremacist ideas OUTSIDE of the class only – and I don’t know if I would feel settled in their class even if those ideas were never voiced – BUT – if they are a good teacher, I fall back on my belief in free speech (and more importantly, free thinking) and would probably be okay – AND my conviction that I could identify and separate and call out any overlap in the classroom (I mean, even the professors I agree with have ideas and thoughts that I disagree with and don’t want seeping into class).

    But of course, I am not the target of those problematic ideas (as a white male). But when I was younger, I was a ‘wog’ here in Australia – a second generation aussie of Italian parents – and I WAS on the end of problematic ideas in (and out) of the classroom, so I DO know what it is like (despite not being a POC – at that time, we were treated the same as later Asian immigrants, and today’s muslim immigrants).
    But in my day (oh, so old now), I never felt oppressed by the oppression. My parents never ‘hid’ behind an oppression narrative.

    Yikes – I think I went a little lateral there – these are the thoughts this evoked.

    Apologies for the diatribe.

  10. Here is the link to the original Philadelphia Tribune article recounting the “rarely at the top of the class” claim she made on Glenn Loury’s interview show in 2017. The interview itself (an hour) is clickable from the Tribune story.

    From the Trib: “I don’t think I’ve ever seen a black student graduate in the top quarter of the class, and rarely, rarely in the top half,” Wax said [in the interview, beginning at 48:20 for context. The Trib used the lower-case b in original, published in 2018.]

    The Law Dean’s attempt to falsify her claims did not in fact do so. From the available evidence (without actually looking at graduating class standings) her claims and the Dean’s claim could both be true, especially since, “I don’t think” and “rarely, rarely” are not falsifiable to begin with and cannot therefore be “false”.
    A comment to the article — the only one! — provides helpful context for us foreigners.

    Of course the issue is her right to free speech in an institution with First Amendment values. But I think this is important because if she had said something she ought to have known was untrue, there would be cause for censure.

    I didn’t know of Prof. Wax until today. I can see why she is controversial. One place I (and Loury in another interview) do find her off in left field is in her animus against South Asian culture. She was a specialist physician (in neurology) before law school. I’m checking out her video on wokeness in medicine to see if that sheds light on where she’s coming from. She had referred to perverse cultural impacts of South Asians in medical training, which was not my experience with the many gifted and culturally well-acclimated doctors of Indian origin whom I worked with.. I hasten to say that someone can be hostile to foreign cultural norms and therefore not want them as immigrants without necessarily prejudging such an individual based on race. But I’m reserving my opinion about her (which as I say is not germane to the free-speech issue.) I bring this up because so far I don’t find her a “hard case” for Freedom of Speech. Hana Kiros should stick to her own loom.

  11. I have heard Wax speak multiple times on Glenn Loury’s podcast and most of what she’s accused of being racist for seems to be total nonsense and exaggeration. But she really did cross the line into legitimate racist territory in her most recent appearance there (this episode: where she said something along the lines of how the US would be better off without as many Asians as there are because they don’t care about liberty and freedom. I couldn’t believe it when I heard it. Glenn pushed back on it and got a lot of feedback for her comments.
    But her remark about the underperformance of blacks at Penn was not proven false at all. In fact, she has repeatedly challenged the school to disprove her by simply producing the numbers and they have failed to do so.

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