Amy Wax has provided a perfect test case for accessing the state of academic freedom. On paper, just about any college would be lucky to have her. She earned both an MD and a JD, argued 15 cases before the Supreme Court, and then became a law professor at a top college for three decades. But in practice, the university where she teaches—the University of Pennsylvania (Penn)—is trying its best to get rid of her. Penn recently decided to strip her of a chaired professorship, suspend her for a year at half pay, and deny her summer pay for the rest of her life. What did Wax do to deserve such punishment? She said politically incorrect things about race and culture.
The most controversial undisputed remarks centered around statements that she had not seen many black students graduate at the top of the law school where she teaches and that to preserve American culture and values, the country should limit immigration from cultures that are vastly different. There are also several alleged statements that are either disputed or distorted by selective editing to appear more inflammatory.
The reason this is a perfect test case for academic freedom is that all other claims against her have been disproven. Some are claiming that she discriminated against minorities, but these claims are misinformation. Penn commissioned an independent investigation by Daniel Rodriguez, a former dean at Northwestern University Law School, which cleared her of the charges. As Aaron Sibarium summarizes, the investigation found “the most serious charges against Wax were baseless. There was ‘no evidence’ she had ‘breach[ed] the anonymity of exams,’ ‘graded minority students differently,’ ‘denied them access to professional opportunities,’ or ‘singled them out for special ridicule.’” Thus, her punishment is based solely on her speech. As Wax said, “This is a game-changer, because it’s a pure case of speech … If they succeed in punishing me for that, it will eviscerate academic freedom as we know it.”
There is certainly an interesting conversation to be had about whether Wax’s statements were correct or incorrect. Regarding the relative performance of black students at Penn, it used affirmative action for years, which entailed granting admission to less qualified black students, so it would not be a surprise if those students underperformed their peers. There is an entire literature on this phenomenon; see, for example, Richard Sander and Stuart Taylor Jr.’s Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. Of course other scholars, such as Matthew Chingos, dispute the idea. The fact that Penn claims she is wrong while refusing to release the data to show it indicates that Wax’s observation is probably correct.
But whether or not Wax is right about the performance of black students at Penn, the larger point is that her statement was a perfectly reasonable claim to make and should be handled the way any other academic dispute is, by different teams of researchers formulating theories and testing them with data to see who is right—or more likely, under what circumstances each is right. What shouldn’t happen is for those on one side to face punishment for making their case. To their great credit, many who think Wax is wrong oppose punishing her. Prominent examples include John McWhorter and Zaid Jilani.
But sadly, many people and organizations are abandoning long-held principles like free speech and academic freedom for short-term ideological gain. For example, Jeffrey Sachs called out the hypocrisy of the American Association of University Professors (AAUP), which has raised no objection to Wax being disciplined by a top college, while objecting to an obscure college firing a professor who supports those trying to commit genocide against Jews, with one student claiming she was “using her classroom as a political platform for spreading personal bias since October 7, and that it had become ‘the most uncomfortable classroom environment I have ever stepped foot in.’”
Judging by AAUP’s stance, it appears as though statements supporting the attempted genocide of Jews warrant the protection of academic freedom, while statements about racial matters like mismatch, on which there are academic books written, do not warrant the protection of academic freedom.
The hypocrisy of the AAUP is even more galling given that it created one of the foundational documents on academic freedom that states professors “should be free from institutional censorship or discipline.”
There is simply no convincing way to square the AAUP’s claimed support for academic freedom with their tacit support of Wax’s punishment. The AAUP’s defenders are attempting to claim Wax was afforded due process in a faculty-driven manner. This is false.
As Glenn Loury writes, it is merely “using pretextual arguments to punish her for thought crimes.” FIRE notes, Penn used “dubious procedural efforts — which stripped Wax of many of the due process protections tenure affords.” Aaron Sibarium documents that Penn “ignored the results of an outside investigation that found ‘no evidence’ Wax had treated students unfairly—then launched a second investigation,” which never even contacted Wax to discuss the charges against her. And the “faculty driven” process was headed by a woke ideologue who argues that professors that resist “core values like diversity, equity, and inclusion” (DEI) should be stripped of tenure and fired.
So, to recap, Penn 1) ignored investigations that cleared Wax, while launching new ones until it got the desired conclusion, 2) stripped Wax of the due process protections of tenure, 3) stacked the judge and jury against her by making sure it was composed of those that think it is kosher to fire their ideological opponents. If this is the AAUP’s idea of upholding academic freedom, no one should ever take them seriously in the future.
So, what has this case revealed about the state of academic freedom? The statement by FIRE—reproduced in its entirety—is spot on:
After years of promising it would find a way to punish professor Amy Wax for her controversial views on race and gender, Penn delivered today — despite zero evidence Wax ever discriminated against her students.
Faculty nationwide may now pay a heavy price for Penn’s willingness to undercut academic freedom for all to get at this one professor. After today, any university under pressure to censor a controversial faculty member need only follow Penn’s playbook.
But academic freedom is designed to protect controversial faculty from being punished for their speech or opinions. In an era when political forces right and left are all too eager to sanitize campuses of voices and views they dislike, faculty nationwide must be able to rely on the time-tested principles of academic freedom.
Wax is the canary in the coal mine. If Wax’s punishment stands, academic freedom is effectively dead on American campuses.
Image of Huntsman Hall at the University of Pennsylvania by WestCoastivieS on Wikimedia
Yes, indeed.