Guest blogger Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author of Speak Freely: Why Universities Must Defend Free Speech.

Amy Wax, a professor of law at the University of Pennsylvania, has once again annoyed her colleagues and students and provoked calls for her prompt dismissal. It is worth considering why academic freedom protects even Amy Wax and she should not be fired.

The saga begins, more or less, with a newspaper op-ed published in the summer of 2017, in which Wax and a co-author complained about the decline of “bourgeois culture.” She soon elaborated that “not all cultures are created equal,” and more particularly that “everyone wants to go to countries ruled by white Europeans,” since those are the countries that display the “superior” cultural values. She was swiftly denounced by her dean and her colleagues. After saying in an interview that black students did not perform well in her classes or at the law school, she was barred from teaching mandatory first-year classes at the law school.

This summer, Wax made an appearance at the National Conservatism Conference, a pro-Trump event designed to add some intellectual weight to the restrictionist position on immigration. There Wax gave a speech in which she called for immigration restrictions based on a vision of “cultural distance nationalism,” arguing that “we are better off if our country is dominated numerically, demographically, politically, at least in fact if not formally, by people from the First World, from the West, than by people from countries that had failed to advance.” In practice, she admitted that curbing immigration from the “Third World” would mean an immigration policy that would allow in “more whites and fewer non-whites.” Needless to say, this is a controversial position. Whether Wax’s comments would have gotten the same attention if not for the controversy the previous year or for President Trump’s own loaded rhetoric about immigrants and race is hard to say, but given the context it is no surprise that there were new calls for her to be fired or relieved from all teaching duties. Her dean issued a strongly worded statement denouncing her.

Some have suggested that this “raises some hard questions about the limits of academic freedom.” Wax might become “a magnet for students who subscribe to the views that Penn says it deplores” and minority students might fear that she will not treat them fairly. Or more directly, perhaps the school should not “continue to employ her for the purpose of facilitating her scholarship and public writing/speeches” that are “repugnant to the core values and institutional practices” of the school.

The Wax case is not a hard case. She should be fully protected from employer sanction based on the content of the views that she has expressed in her public writings and speeches. This principle is foundational to the modern protection of academic freedom, and there is no exception for faculty speech that makes students uncomfortable or contradicts a dean’s opinion about the values of the institution. Wax is being criticized not merely for how she says things, but for the very substance of her ideas, ideas that are close to her scholarly endeavors. If her speech is not well inside the protected sphere of academic freedom, then academic freedom has little to offer those who might hold controversial views.

As an aside, the Wax case also points to the importance of protecting the right of faculty to speak freely in an extramural context in order to effectively protect the core concerns of academic freedom in teaching and scholarship. Strictly speaking, Wax is in hot water for her personal political opinions as expressed at political events. This is a classic example of “extramural speech,” and we might reasonably think that her right to engage in wrongheaded and tendentious extramural speech is analytically distinct from her right to engage in professionally competent speech on controversial topics in her teaching and scholarship. But protecting her extramural speech is essential to protecting her freedom to pursue controversial scholarship. In this case, her public advocacy of “cultural distance nationalism” builds on her published scholarship. The structure of the attacks against her makes no distinction between her political advocacy or her scholarship. It is the content of her substantive ideas that is in tension with the ideas of school administrators and that makes students uncomfortable, and her critics think she should be punished for those ideas and it would matter little if she had restricted her expression of those ideas to law review articles and policy white papers.

There are limits to academic freedom, but Wax’s critics have not yet shown she has crossed them. Precisely because Wax’s remarks about immigration policy are related to her scholarship, it might be possible to demonstrate that her remarks are evidence of professional incompetence and scholarly malpractice. If so, that might justify her being sanctioned by a university. In the context of legal scholarship, that is a very heavy lift. In the course of their scholarly activities, law professors say lots of wrongheaded things about which they have limited scholarly expertise. Any reasonable standard that would result in Wax being dismissed for professional incompetence would sweep fairly broadly through the ranks of the elite law schools. For academic purposes, far better to ignore her work or demonstrate its flaws than denounce it as repugnant.
It might be the case that Wax in fact treats some of her students unfairly. If there were evidence of bias in her teaching, then she should be subject to discipline. Since law professors routinely grade students based on identity-blinded exams, it seems unlikely that Wax in fact awards poor grades based on race, even if she were inclined to do so. Her critics, including her dean, have marshalled no evidence suggesting that she has violated any professional responsibilities in the classroom.

All we have is the argument that she holds bad opinions, that her normative values are contrary to the normative values of university administrators, and that she makes students uncomfortable because her opinions reflect on them. None of those concerns goes to the legitimate qualifications to academic freedom, and none justifies violating her academic freedom.

Professors are allowed to hold bad opinions. They are even allowed to like the current president and his policy agenda. They are even allowed to be magnets for drawing students who might share or be persuaded by their bad opinions. Professors are allowed to question the core values of their institutions. If universities are committed to open inquiry and the advancement and dissemination of knowledge, professors are allowed to argue that they should not be committed to that and instead should be committed to the advancement of a particular political agenda and vision of social justice. If universities are committed to diversity and inclusion, professors are allowed to argue that they should not be committed to that and instead should be committed to a restricted community that excludes faculty and students on any number of grounds. If deans are allowed to sideline or terminate professors for holding bad opinions or questioning institutional values, then academic freedom in any meaningful sense is effectively at an end.

Likewise, professors are allowed to denigrate groups of people in such a way that students might fear that they will not be treated fairly in the classroom. Professors are not allowed to in fact treat students unfairly. They are not allowed to single out and harass students in the classroom. They are not allowed to assign poor grades or diminish a student’s participation in class because of professionally irrelevant factors, such as the student’s race or political preferences. Professors might say things in public that give administrators good cause to scrutinize whether professors are in fact treating students unfairly. But the fact that students are made uncomfortable by the fact that a professor might think badly of a group to which they belong – or even think badly of an individual student! – does not define the boundary of academic freedom.

It is a sad fact of life that sweeping generalizations and poisonous vituperative are common to political rhetoric. Denigrating one’s political foes is par for the course. Stigmatizing some people and behavior, while valorizing others, is a key feature of cultural politics. Thinking about the proper boundaries of inclusion and exclusion is an often an important part of institutional politics. If professors engage in political rhetoric, they will on occasion engage in such overheated and offensive rhetoric. If that is a firing offense, then public politics will be largely off-limits to academics.

Amy Wax’s case is hardly unique in making some students feel like she might not think highly of them or value their contributions to the campus community. Infamously, the argument now being turned against Amy Wax is the exact same argument that was turned against Stephen Salaita when the University of Illinois sought to unhire him because some Jewish students might be reluctant to take his classes. It is the exact same argument that was turned against Marc Lamont Hill at Temple University, against Kevin MacDonald at Cal State-Long Beach, and against Joy Karega at Oberlin. It is the same argument that has been turned against professors who engage in racially inflammatory rhetoric that might make white students think they would be judged by the color of their skin, as with Johnny Eric Williams at Trinity or George Ciccariello-Maher at Drexel or Zandria Robinson at Memphis. It is not hard to imagine the same kind of argument being turned against professors who publicly announce that conservatives are too dumb to engage in serious academic work, as with Robert Brandon at Duke or Jason Rosenhouse at James Madison, or against professors who denounce members of fraternities, as with Jonathan Zimmerman at Penn or Lisa Wade at Occidental, or against professors who argue that legacies or athletes are improperly admitted to universities.

I have little sympathy for Amy Wax’s arguments about immigration. I suspect they are empirically dubious, and they certainly reflect values that are not my own. But they also reflect a set of positions that has substantial support in the political arena and that has often influenced American public policy. She offers actual arguments for her views, and generally does not engage in the kind of rhetorical excesses that, say, our current president and many of our university faculty regularly use on social media. It would be far more productive to show why those views are wrong than to try to suppress the rare individual who tries to make those arguments in a university environment. If we choose not to bother to do that, we can at least recognize she has the same right to offer bad arguments as every other professor in America. If we want to sanction her for expressing her controversial opinions in public, then we better be prepared to sanction a very large number of additional academics who sit on the other side of the divide from her in the political and culture wars.