Should Penn revoke tenure for controversial law professor Amy Wax over racist comments? | Pro/Con

Penn Law professor Amy Wax is no stranger to offending people. She has a history of making controversial and racist comments: In 2017, she said she didn’t think she’d ever seen a Black student graduate in the top quarter of the class at Penn Law and “rarely, rarely in the top half;” recently, she’s come 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 tenure — an “indefinite appointment,” according to the American Association of University Professors, which can only be terminated for “cause or under extraordinary circumstances.” The goal of tenure, says the AAUP, is to give professors the academic freedom to pursue ideas and knowledge without bowing to outside pressures.

But should a history of making racist remarks be considered part of academic freedom?

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

By Apratim Vidyarthi

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

She has said America is “better off with fewer Asians and less Asian immigration” because Asians have a “single-minded focus on self-advancement, conformity and obsequiousness, lack of deep post-Enlightenment conviction, timidity toward centralized authority (however unreasoned), indifference to liberty, lack of thoughtful and audacious individualism, and excessive tolerance for bossy, mindless social engineering, etc.” In general, she thinks the country would be “better off with more whites and fewer nonwhites.” Case in point: According to her, Black students rarely graduate in the top half of their class at the University of Pennsylvania Carey Law School.

So what should Penn do about this?

In 2018, the law school partially stripped her of her duties, without revoking her tenure. Earlier this month, Penn Law dean Theodore Ruger announced that the university has begun an investigation into her statements, after grassroots pressure from students (including myself), alumni, and others.

Some people say Wax shouldn’t lose her tenure because doing so would infringe upon academic freedom and free speech. I am a Penn Law student focusing on First Amendment issues, and I thoroughly disagree. Her words leave little doubt about what she is doing: masquerading policies that support white supremacy as “intellectual” theories. I believe that Wax should lose her tenure and be fired, because this is not a free speech issue, and even if it were, there are limits to free speech.

“Simply put, Wax cannot fulfill her duties as a professor, making this an employment and workplace issue.”

Here’s why this is not a free speech issue: Wax cannot fulfill her role as a professor, nor adhere to the university’s behavioral standards, which include being “fair and principled” and nondiscriminatory. The fact that she hasn’t stopped to change her racist behavior indicates that previous consequences imposed on her were inadequate, and she cannot be counted on to be objective and fair toward her students. Her small seminars are implicitly off-limits to those worried that they will be treated as though they are obsequious, inferior, or incapable of succeeding because of their race.

Her work serves not to advance academic freedom, but as a platform to legitimize white supremacy and far-right policy arguments, without the rigor necessary for scholarship. Simply put, Wax cannot fulfill her duties as a professor, making this an employment and workplace issue.

Even if this is a free speech issue, the sky will not fall if Wax’s tenure is revoked. We already draw a line as to what speech is acceptable. If a professor advocated for genocide, denied the Holocaust, or supported slavery, this wouldn’t be a debate. The real question is whether Wax’s statements of white superiority and Black and Asian inferiority fall beyond the boundaries of socially acceptable speech. In my view, they clearly do. But even if you disagree, the correct approach is not to pretend a line doesn’t exist, but to define the limits of free speech. The Supreme Court does this all the time: you can’t shout “fire” in a crowded theater; you can’t insult someone in a way that could cause them harm (so-called “fighting words”); and you can’t burn draft cards. The answer is not to deny that a workable solution exists, but to fine-tune it.

» READ MORE: Penn law dean starts process that could lead to sanctions on professor Amy Wax

I understand that scholars are concerned about the impact on academic freedom. But academic freedom is the freedom to search for the truth, not the freedom to propagate white supremacist views without consequences. Wax’s statements are the opposite of searching for the truth. They are either complete lies or statements that are deceptive and that have been discredited. And her propagating white supremacy has real consequences, adding a compounding cause to the hate crimes against Asians.

Penn Law must revoke Amy Wax’s tenure. She is free to take her speech to the public square and advocate for her misguided and factually false arguments there. She should not continue to have the platform as a professor, whose job it is to search for the truth and educate future lawyers, rather than to indoctrinate and instigate hate.

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

By Keith E. Whittington

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

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

» READ MORE: Penn law professor Amy Wax enraged people with her comments about Asians. Now, she may face sanction.

Such strong protections are essential to protecting intellectual freedom on American campuses and the ability of professors to share their scholarly expertise with the public. It is this very principle that forced the University of Florida this past year to back off of its effort to prevent professors from testifying as expert witnesses in voting rights lawsuits filed against the state of Florida. It is this very principle that forced the chairman of the board of trustees of Temple University to back off his demand that professor Marc Lamont Hill be fired for his speech that criticized Israel at the United Nations. Then, too, the trustee insisted, “Free speech is one thing. Hate speech is entirely different.”

American courts, however, have not accepted that there is a “hate speech” exception to constitutional protections for free speech because doing so would invite all manner of mischief. Justice Samuel Alito recently wrote for the Supreme Court, expressing a point with which all the justices agreed: “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

It is not hard to weaponize a hate speech exception to academic freedom in order to drive out professors with unpopular views. One student complained that professor Wax should be sanctioned for making students feel “uncomfortable” and “unheard,” and a student petition called for tenure rules to be modified to ensure that tenured professors must follow “principles of social equity.” But such claims can be multiplied endlessly. In 2020, College Republicans announced that it felt unwelcome on campus because of a history professor’s anti-MAGA social media posts. Sponsors of measures that oppose critical race theory justify them, in part, by arguing that professors who teach critical race theory are creating a hostile educational environment for white students. If academic freedom principles are changed to escort professor Wax out the door, she will not be the only one to find herself out on the street.

“It is not hard to weaponize a hate speech exception to academic freedom in order to drive out professors with unpopular views.”

If we go down the road of carving out a “hate speech” exception to academic freedom, expect university administrators to be inundated with charges against professors on the left, right, and center. Do not be surprised if some politicians decide to sweep out hordes of professors who have said something that offends some constituency. Donors and alumni are sure to get into the act at private universities, as they routinely did before academic freedom protections were adopted in the first place. Once the purges are over, we can certainly expect universities to be quieter places as the remaining faculty learn to keep their controversial ideas to themselves. They will also cease to be serious institutions of higher education and scholarly inquiry.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, visiting fellow at the Hoover Institution, and the chair of the Academic Freedom Alliance.