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.