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Academic Freedom

Academic Freedom Alliance Letter to the University of Pennsylvania

The law school has initiated disciplinary hearings against Professor Amy Wax stemming from her appearance on Glenn Loury's podcast

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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.

You can read the whole thing here.

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.

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  1. "It is a fair summary of history that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Justice Felix Frankfurter, dissenting in United States v. Rabinowitz, 339 U.S. 56, 69 (1950).

    1. This is true. But also there need to be some limits; the marketplace of ideas cannot be an unregulated bazaar.

      The question is where and how to draw that line. SimonP points to where it's drawn now. I'm going back and forth on whether that's the right method to use.

      1. "But also there need to be some limits; the marketplace of ideas cannot be an unregulated bazaar.

        Why the hell not? That was the whole point. If you prefer a "black marketplace" of ideas where things are not subject to review, you encourage truly abhorrent behavior. In an open marketplace, ideas that are beyond the pale are identified.

        Look at the whole discussion of "normalizing" sex with children. You really want to drive that underground?

        1. Identified without sanction is silly. Giving a platform to Holocaust denial doesn't seem the best use of resources to me.

      2. I have no problem with limits, as long as they are determined by democratic processes, meaning that the people's elected representatives (or the people themselves by referendum, where applicable) specify the limits. Allowing that power to any other decision-maker would obviously be tyranny. I'm sure Sarcastro will agree with me that only the people can and should be entrusted with this awesome power.

        1. Tyranny of the majority is still tyranny. I think I agree with Darth, let's have the unregulated bazaar. Keeping in mind Prof. Whittington's point that this is a professor's speech outside of the classroom.

      3. Where is it drawn now? If you're referring to his comment about "customs of scholarly communities," that's about as clear as mud.

  2. Keith, in order to maintain this position, you must maintain that Wax's comments (in the present case and in previous cases) are at least consistent with the "customs of scholarly communities." I see no serious contention made in any of the AFA materials that her comments meet that standard, and I find the implicit assertion that they do a bit surprising.

    1. Professors saying weird shit is quite consistent with the customs of scholarly communities.

      1. Exactly, read the stuff they actually publish sometimes!

  3. Memberberry right after 9/11 that Florida professor who said America deserved it, and very few defended his academic freedom?

    Ahh, good times.

    Remember: These principles actually matter to very few, except in situational ethics, when it helps your position, or is something to be "worked around", on your opposition, who is clearly a demon-guided evil you need to get rid of, because they oppose you.

    1. I thought it was Colorado, but the point stands.

  4. At what point does the expression of virulent racism and bigotry disqualify one for a position such as Wax's?

    Had she said that Jews tend to vote for policies she disagrees with, therefore Jews should be excluded from immigrating to the United States, would the clear anti-Semitism of that statement render her unfit to teach? If so, why doesn't the clear anti-Asian bias of the statement she did make?

    1. Why would it matter? There is a whole bunch of Palestinian professors out there who promote worse than that, and I don't see them paying a price.

      1. Setting aside your spurious whataboutism -

        The question is not, ultimately, about the apparent bias of a person's claims. The question is whether they have any defensible basis in an underlying academic argument.

        It's one thing to say that you've done studies on Jewish immigrants to the U.S. and have found them to be detrimental to American interests in such-and-such ways. That might or might not be good scholarship, but it ought to be the sort of thing academics are free to investigate (and if it's bad scholarship, it deserves criticism on those grounds).

        It's another to make spurious assertions based on little more than - what? What kind of academic argument has Wax actually made, here?

        1. She has not made an academic argument; she has spoken her opinion. Which is protected speech.

          Just because you don't like it, doesn't make it wrong. And you don't get to decide whether she can hold that opinion and announce it to the world.

          You do have the right to decide to not to listen to her; you don't have the right to force he to be silent.

          1. I don't suppose that I have any right to tell her whether or not to express her opinion.

            I do, however, think that an academic institution has some responsibility in ensuring that its members uphold its core mission and standards. So the question is whether she has really done that, in this case. Just because it's her opinion doesn't mean that any ol' opinion she might happen to have and express publicly meets those standards.

            1. You really don't get the whole "Free Speech" thing, do you?

              She did this outside her academic position. The institution has no right to tell it's professors what to say (or what NOT to say) in public.

              What part of that is so damn difficult for you to understand?

              1. Wait....was it? = She did this outside her academic position

                I thought (mistakenly?) that Professor Wax was getting disciplined for comments she directed toward individual students inside the classroom. I'll have to check that.

                Agree = The institution has no right to tell it's professors what to say (or what NOT to say) in public.

                1. Opening paragraph:

                  "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."

              2. The First Amendment does not protect a professor's right to remain employed when they fail to hold up their employer's core mission or values.

                She did this outside her academic position.

                This is just begging the question. When is a professor speaking "outside their academic position"? Is there some distinction between in-class lectures, publishing in academic journals, publishing in non-academic publications, appearing on television or in other public presentations, etc., that is more obvious to you than it is to me?

                Universities are collections of academic professionals who hold themselves out as experts in their chosen fields. They therefore all have an interest in ensuring that other members of their university community uphold a certain standard. Ideally, this means that they will acknowledge that they may sometimes disagree with one another on points up for debate, and learn to respect, at least, one anothers' particular approaches. But this does not mean that they need to tolerate professors who will mouth off any opinion that enters their mind, to any willing audience, without the support of at least some research or rigorous analysis.

          2. I think I may disagree with SimonP on other grounds, but I don't think you can shrug off his argument simply by saying this is protected speech under the First Amendment. A state school is at issue here, but many of the largest and most prominent universities are private ones, not bound by the amendment.
            These schools may be bound by their mission, however.
            I can think of no better discussion of the mission of the university and the threats to it than the draft of the article Prof. Wittington linked to in his posting here a couple of days ago.

  5. Everyone knows that only universities are allowed to discriminate against Asians and limit their admission.

    1. And only after taking the precaution of at least first interviewing the Asian candidates before finding that they uniformly exhibit character deficits.

  6. I wish that some of these people complaining about immigration policy would emigrate (or try to emigrate) to New Zealand, Australia, Switzerland, or any other country with more restrictive immigration policies than the U.S.

  7. Oh, a letter. Sternly worded too.

  8. Curious, does U Penn have any admissions policies that discriminate against Asian applicants?

    1. Hard to see how advocating discrimination against Asians would be contrary to the "customs of [a] scholarly communit[y]" that discriminates against Asians.

  9. " I expect that she will mount an aggressive defense, and so Penn better be prepared for a fight. "

    Well, I suppose they might invest in ankle armor.

    Carry on, bigoted (and bigot--appeasing, and bigot-curious, and "often libertarian") clingers.

  10. The practical lesson for strong faculties is: Don't emulate our fourth-tier yahoo factories by hiring more movement conservatives. Otherwise, you could get stuck with a bigot such as Wax, an authoritarian theocratpot such as Vermeule, a seditious loser such as Eastman, etc.

    (Or, you could have your institutional franchise stained by associated with an old-timey White, male, right-wing blog that is a magnet for strident xenophobes, racists, misogynists, Muslim-haters, and gay-bashers.)

  11. TAKE BASTARD ABATEMENT FOR AN EXAMPLE

    Re: "unpopular political views in their personal capacity"

    I find this problematic and here is why:

    If you are institutionally affiliated (I am not) you cannot "de facto" speak in a personal capacity on a topic within the scope of your scholarship. You can at best make clear that it's just you saying it as an individual, and thereby dispel any notion that you speak for the institution that employs you, or your particular school/department or discipline, or some other collectivity, like your own race, cultus, clan, or tribe (should you identify with one).

    Second, if you choose to pontificate publicly and air an unpopular viewpoint, there is always a possiblity that someone in the audience, perhaps many, will react with revulsion or ire, and someone ( or some-more) might try to get you. Get you fired -- or at least sanctioned/punished/disciplined -- for what you have said or written. And that might even happen with your published scholarship.

    An aggrieved listener or web surver, for example, may send an email to your campus president -- as a "concerned citizen" -- and complain that you are a fascist or a chauvenistic pig because you advocate for equality and respectful treatment of bastards (nonmarital/extramarital post-birth humans), rather than the problem of unwanted surplus population being solved ex ante through safe and readily available abortion "care".

    Voila, you are now an academic that "has been accused" of being a chauvenistic pig. - Can't have such a loathsome creatures on the animal farm. Time to call the knacker.

    BALANCE OF INCENTIVES AND DISINCENTIVES

    The solution to the problem of adverse repercussions for institutionalized academics speaking on sensitive issues of public concern is to disseminate their "personal" take and opinions anonymously or pseudonymously in online forums.

    But then these contributors won't get to reap any potential plaudits and credit either (creating a lack-of-incentive problem) while still enriching or adultering (depending on viewpoint) the marketplace of good and less-than-good ideas if they nevertheless "waste" their limited and precious time on such efforts to weigh in on a public controversy.

    So, both the pull and push forces are all in favor of conforming to the contemporary prevailing orthodoxy and to not rock the boat. The market of ideas is rigged. The suppressors of divergent thought and enforcers of conformity are ready to pounce.

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