Should Penn revoke the tenure of a controversial law professor?

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Penn Law professor Amy Wax is no stranger to offense. She’s used to making controversial and racist comments: In 2017, she said she didn’t think she’d ever seen a black graduate student in the top quarter of the class at Penn Law and “rarely, rarely in the middle superior; She recently came under fire for saying she thinks “the United States is better off with fewer Asians and less Asian immigration.”

At the University of Pennsylvania, Wax has a term — an “indefinite appointment,” according to the American Association of University Teachers, which can only be terminated for “just cause or in extraordinary circumstances.” The goal of tenure, says the AAUP, is to give faculty the academic freedom to pursue ideas and knowledge without bowing to outside pressures.

But should a history of racial slurs be considered part of academic freedom?

We asked a Penn Law student and academic freedom expert: Should Penn revoke Amy Wax’s term?

By Apratim Vidyarthi

Professor Amy Wax’s white supremacist statements have become something of a ritual.

She said America is “better off with fewer Asians and less Asian immigration” because Asians have a “resolute focus on self-advancement, conformity and obsequiousness, lack of deep belief post -Enlightenment, shyness towards centralized (even unreasonable) authority, indifference to freedom, lack of thoughtful and daring individualism, and excessive tolerance for authoritarian and senseless social engineering, etc. In general, she thinks the country would be “better with more whites and fewer non-whites.” Case in point: According to her, black students rarely graduate in the top half of their class at the University of Pennsylvania’s Carey Law School.

So what should Penn do about it?

In 2018, the faculty of law partially stripped her of her duties, without withdrawing her mandate. Earlier this month, Penn Law Dean Theodore Ruger announced that the university had opened an investigation into his statements, after popular pressure from students (including myself), alumni and teachers. ‘others.

Some people say Wax shouldn’t lose his tenure because it would undermine academic freedom and free speech. I’m a Penn Law student who focuses on First Amendment issues, and I strongly disagree. Her words leave little doubt as to what she is doing: disguising policies that support white supremacy as “intellectual” theories. I believe Wax should lose her term and be fired, because it’s not a free speech issue, and even if it was, there are limits to free speech.

“Put simply, Wax can’t perform his duties as a teacher, making it a job and workplace problem.”

Apratim Vidyarthi

Here’s why it’s not a free speech issue: Wax can’t fulfill his role as a professor, nor adhere to the university’s standards of behavior, which include being “fair and principled” and non-discriminatory. . The fact that she has continued to change her racist behavior indicates that the consequences imposed on her before were inadequate and that she cannot be counted on to be objective and fair to her students. His minor seminaries are implicitly off limits to those who fear being treated as obsequious, inferior, or incapable of success because of their race.

His work is not used to advance academic freedom, but as a platform to legitimize white supremacy and far-right political arguments, without the rigor necessary for scholarship. Simply put, Wax can’t perform his duties as a teacher, making it a job and workplace problem.

Even though this is a free speech issue, the sky will not fall if Wax’s mandate is revoked. We are already drawing a line as to what speech is acceptable. If a professor advocated genocide, denied the Holocaust, or supported slavery, it wouldn’t be a debate. The real question is whether Wax’s statements about white superiority and black and Asian inferiority cross the boundaries of socially acceptable discourse. In my opinion, they clearly do. But even if you disagree, the right approach is not to pretend a line doesn’t exist, but to define the limits of free speech. The Supreme Court does it all the time: you can’t shout “fire” in a crowded theater; you can’t insult someone in a way that could hurt them (so-called “fight words”); and you cannot burn drafts. The answer is not to deny that a viable solution exists, but to refine it.

READ MORE: Penn law dean begins process that could lead to sanctions against Professor Amy Wax

I understand that academics are concerned about the impact on academic freedom. But academic freedom is the freedom to seek the truth, not the freedom to propagate white supremacist opinions without consequences. Wax’s statements are the opposite of the search for truth. These are either complete lies or misleading and discredited statements. And his spread of white supremacy has real consequences, adding an aggravating cause to hate crimes against Asians.

Penn Law must revoke the mandate of Amy Wax. She is free to make her speech in the public square and to defend her erroneous and factually false arguments there. She should not continue to have the platform as a professor, whose job it is to seek the truth and educate future lawyers, rather than to indoctrinate and incite hatred.

Apratim Vidyarthi is a third-year law student at Penn.

By Keith E. Whittington

It has become common to hear claims that “hate speech is not free speech”. The new controversy sparked by Amy Wax, a law professor at the University of Pennsylvania, has encouraged a new twist on the claim: that academic freedom does not include hate speech. Both statements are false, and it is important to understand why.

Academic freedom has many components, but the issue here involves a professor’s public expression of his or her personal political views. In this context, the principles of academic freedom largely mirror the protections provided by the First Amendment. When faculty speak in public as citizens on matters of public interest, the American Association of University Teachers has long insisted (and most American universities have agreed in their own legally binding faculty regulations) that they “should be free from censorship or institutional discipline” for what they might say.

READ MORE: Penn law professor Amy Wax enraged people with her comments about Asians. Now she is in danger of being punished.

Such strong protections are essential to protect intellectual freedom on American campuses and the ability of professors to share their scientific expertise with the public. It is this very principle that forced the University of Florida last year to back down from its efforts to block professors from testifying as expert witnesses in voting rights lawsuits against the state of Florida. . It was this very principle that forced the chairman of the board of trustees of Temple University to reverse his request to fire Professor Marc Lamont Hill for his speech criticizing Israel at the United Nations. Then, too, the trustee insisted: “Freedom of speech is one thing. Hate speech is entirely different.

US courts, however, have not accepted that there is a “hate speech” exception to constitutional free speech protections because it would lead to all sorts of wrongdoing. Justice Samuel Alito recently wrote for the Supreme Court, expressing a point on which all the justices agreed: “the greatest pride of our jurisprudence on freedom of expression is that we protect the freedom to express ‘the thought we hate'”.

It is not difficult to weaponize an exception to academic freedom for hate speech in order to hunt professors with unpopular opinions. A student has complained that Professor Wax should be disciplined for making students ‘uncomfortable’ and ‘unheard of’, and a student petition has called for tenure rules to be changed to ensure tenured professors must follow the “principles of social equity”. But such claims can be multiplied endlessly. In 2020, College Republicans announced that they felt unwelcome on campus due to a history professor’s anti-MAGA social media posts. Sponsors of measures that oppose critical race theory justify them, in part, by claiming that professors who teach critical race theory create a hostile educational environment for white students. If the principles of academic freedom are changed to escort Professor Wax out the door, she won’t be the only one left on the streets.

“It’s not hard to weaponize an academic freedom exception for hate speech to hunt professors with unpopular views.”

Keith E. Whittington

If we commit to creating a “hate speech” exception to academic freedom, expect university administrators to be inundated with accusations against professors from the left, right, and center. Don’t be surprised if some politicians decide to brush off hordes of professors who have said something that offends some voters. Donors and alumni are sure to get in on the act at private universities, as they regularly did before academic freedom protections were enacted in the first place. Once the purges are over, we can certainly expect universities to be calmer places, as the remaining professors learn to keep their controversial ideas to themselves. They will also cease to be serious institutions of higher education and scientific research.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, Visiting Scholar at the Hoover Institution, and President of the Academic Freedom Alliance.

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