The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In December 2021, University of Pennsylvania Law Professor Amy Wax appeared on Glenn Loury's podcast. During that podcast, Wax called for a more restrictive immigration policy, and specifically argued that the United States should accept fewer immigrants from Asian countries. In response to a listener, Wax further elaborated on that position in a written response. This sparked new calls for Wax to be disciplined by the university. A student petition called for a reform of the tenure system if necessary to remove her. Local politicians demanded that she be fired, contending that academic freedom and tenure did not protect "hate speech."
Wax is not new to such controversies. In 2018, she was removed from teaching first-year classes as a result of her public claims (also on the Glenn Loury podcast) that black students did not perform well at Penn. In 2019, she delivered a speech at the National Conservatism Conference arguing that immigration to the United States should primarily be restricted to immigrants coming from "Europe and the First World." There were calls for her to be fired then, and I argued that academic freedom principles protected her.
This past weekend, the Academic Freedom Alliance wrote to the leadership of the University of Pennsylvania urging it to resist bending its established rules so as to punish Wax for her personal political opinions expressed in constitutionally protected speech. I wrote in the letter:
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.
As is often the case, defending academic freedom principles sometimes means defending the right of speakers to say things with which I strongly disagree. That is certainly the case here. But if universities were to bow to the pressure of politicians and discipline professors for expressing unpopular political views in their personal capacity and carve out exceptions from academic freedom protections for speech someone might find hateful, then professors across the political spectrum will be much more vulnerable to university discipline and termination. I have no confidence that such a reduced version of academic freedom protections would not be leveraged by university officials to get rid of controversial professors whenever the heat gets turned up sufficiently by politicians, students, or activists. The Foundation for Individual Rights in Education emphasizes that broader context in its statement on the Wax situation.
The dean of the law school has subsequently announced that Wax will be subjected to disciplinary procedures that could lead to her firing. I expect that she will mount an aggressive defense, and so Penn better be prepared for a fight.