The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My focus on the op-ed is on whether there is or should be a hate speech exception to academic freedom and tenure protections. Many of those who were calling for Penn to fire Wax for her comments on the Glenn Loury podcast have been arguing that hate speech is unprotected. This claim seems as misguided in this context as it is in the larger First Amendment context. As I note there:
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.
As a bonus, the editors at the Inquirer wanted a contrasting position to pair with mine, and they used a piece from a third-year Penn law student, Apratim Vidyarthi. That piece, arguing that Wax can no longer perform her duties on the faculty, can be found here as well. Vidyarthi is willing to bite the bullet and argue that "We already draw a line as to what speech is acceptable," though interestingly the examples offered for when speech is obviously over the line and would lead to a professor being fired are in fact examples that are clearly protected under traditional academic freedom principles. Professors who deny the Holocaust have been protected by those principles, so long as they are expressing such views in their private capacity in the form of extramural speech and are not teaching, for example, twentieth-century European history or holding themselves out as a scholarly expert on the Holocaust.
Also on the Amy Wax front, the Business Insider has a report on allegations relating to Wax's behavior on campus involving students in and out of the classroom. Those allegations are an entirely different matter. If proven true, Wax would be in a much more vulnerable position and could not easily seek shelter under academic freedom protections. Penn would do well to make very clear that its announced investigation will not be focused on her protected extramural speech but rather on her on-the-job conduct. Penn should investigate such allegations carefully and in good faith, and Wax should have ample opportunity to defend herself against such charges.