BY HANK REICHMAN

Yesterday Princeton political scientist and legal scholar Keith Whittington posted to this blog a piece entitled “Academic Freedom, Even for Amy Wax.”  Wax is a University of Pennsylvania law professor whose extramural expression, most recently at the pro-Trump National Conservatism Conference, has been widely condemned as intolerant and racist.  More than 1,000 student groups and individuals affiliated with Penn have signed a petition calling for her to be relieved of all teaching duties.  Her dean, Ted Ruger, issued a statement condemning her remarks.  Whittington, however, argues that repugnant as Wax’s views are, her comments and, most important, her academic position must be protected by academic freedom.

I wholeheartedly agree and applaud Whittington for his thorough and perceptive response.  “The Wax case is not a hard case,” he writes.  “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.”

But there is more to be said about some issues raised by this case that I want to discuss in this post, which may be considered, I hope, an extension of Whittington’s as well as a friendly response to it.  However, first, I should clarify that Wax has not been subject to university discipline — although, as I’ll argue later, her prior reassignment to teach only elective classes could be construed as such — and to my knowledge she has not yet protested her treatment by the university.  Were disciplinary action to be taken and were Wax to seek the assistance of the AAUP, the organization’s response would be based on a thorough investigation and presumably greater information than is presently available to me (or, for that matter, to Professor Whittington).  Hence nothing in this post should be taken as a prejudgment of this case beyond an individual attempt, consistent with Whittington’s, to apply longstanding AAUP principles to publicly available information and to explore broader questions of principle raised by the response to Wax.

On Twitter McGill University professor and political theorist Jacob Levy, whose views I always find stimulating even when (maybe especially when) I disagree with them, suggested that Dean Ruger’s condemnation of Wax was inappropriate, implying that it strayed dangerously close to a threat to academic freedom:

Academic freedom watch: The university, school, president, dean, etc that employs or enrolls a professor or student should not do this about their extramural speech. No, not even in the case of Wax’s white nationalism.https://t.co/Csbb8piM7K

— Jacob T. Levy (@jtlevy) July 24, 2019

Levy’s extension of protection for extramural expression to students, which he acknowledged may be idiosyncratic, need not concern us here.  But should it be a basic principle that college and university officials must never publicly condemn controversial remarks by their faculty members, even when such remarks run counter to fundamental principles embraced by the institution?  Whittington does not address the issue, but since in the thread that ensued from his tweet Levy invited my input, I will try to do so here.

The question is not new to this blog.  Recently John K. Wilson, the NYU chapter of the AAUP, and Steven Lubet disagreed about whether NYU administrators were right to publicly reprimand a graduation speaker for comments critical of the Israeli government.  Wilson accused the administration of “chilling” free speech.  NYU AAUP added that “any official rebuke of speech on campus is a grave threat to fundamental tenets of academic freedom.”  Lubet, however, replied that when earlier this year DePaul University students and the school’s provost condemned a professor’s article that was hostile to the Palestinian cause, a condemnation endorsed by the university’s Faculty Council, Wilson wrote the following on this blog: “There is no call for censorship here. The petition asks for the university to censure Hill, which means criticizing him, not silencing anyone.”  Lubet concluded that “criticism is not censorship.”

Which is it?  Should university administrators be free to criticize or even condemn controversial faculty expression so long as they do not actually seek to discipline them?  Or, as Levy suggests, is such criticism always a threat to academic freedom via the chilling effect it may exert?  The answer depends somewhat on context.  As a matter of general principle, because colleges and universities are devoted to the unfettered search for truth, as institutions there are very few things they should take “official” positions on.  Consider, for example, the theory of evolution.  If asked whether a university endorses the theory, in principle the appropriate response of a university president might be that the institution has no official position, but that its scientists all embrace the theory.  To be sure, institutions of higher education can and should publicly endorse some basic principles requisite to the pursuit of their mission, not least of all academic freedom.  But even here administrators should exercise caution.

For example, when last December the campus Chancellors of the University of California system issued a joint statement condemning the academic boycott of Israel as a “direct and serious threat to academic freedom,” a position supported by the AAUP (and by me personally), leaders of the Berkeley Faculty Association wrote to Chancellor Carol Christ to complain that “for the Chancellors to take a side in such a political debate can only have a chilling effect on campus speech, especially giving faculty pause as they consider taking a public position that is well within the purview of their academic freedom.”  This was a good point, since, as I have argued elsewhere, opposition to academic boycotts is not inconsistent with defense of the right to advocate for such a boycott.  Christ responded that she was exercising her own individual academic freedom, a claim somewhat undermined by the many instances in which university leaders have publicly disassociated their institutions (and themselves) from individual faculty speech, which of course the UC chancellors did not do.  The controversy was not new.  In 2016, the UC Regents sought to endorse a statement on “Principles Against Intolerance” that equated anti-Zionism with antisemitism.  Speaking before the regents, Berkeley professor Judith Butler noted that “anti-Zionism names a political viewpoint that individuals have a right to express under the First Amendment and to debate according to the principles of academic freedom.”  Further, she added, “The university is a place where contested views can be articulated and understood, and where we stand a chance of gaining an informed understanding of conflicts at the center of public debate.  If the Regents accept the language of the preamble that names anti-Zionism as anti-Semitism, they agree to the censorship of particular viewpoints, and that is viewpoint discrimination; further, they undermine the role of the university as a place where free and open inquiry can take place on matters of common public concern, even when those matters are contentious.”

Each time a college or university administrator publicly passes judgment on behalf of the institution on the extramural expression of an individual faculty member, that administrator effectively takes an “official” position on the issue at hand.  If this becomes a habit, it is not very difficult to see the problems ahead.

As a general rule, all public comments made by faculty members as citizens, whether controversial, indisputable, or merely innocuous, never “represent” the institution.  That should always be clear.  Hence an administration need not, and in many, perhaps most, cases should not publicly criticize its faculty’s controversial views.  When Syracuse University faculty member Dana Cloud was subjected to an online mob attack after a provocative tweet, the university’s Chancellor, Kent Syverud, forcefully rejected calls for her dismissal while refusing to comment at all on the content of her expression.  In April I was on a panel with Syverud where he forcefully and unequivocally declared that in cases where faculty members are targets of harassment it is critical that administrators defend their academic freedom without recourse to criticism of their views, however controversial or even distasteful to the administrator.  (At the time I invited Syverud to post his excellent comments on this blog; I now reiterate the invitation.)

Defending his position in the thread that followed his original tweet, Levy wrote,”Without putting such condemnation into surrounding language about academic freedom and about how no one scholar speaks for the institution, it’s an open invitation to those who have been demanding and continue to demand some kind of punitive treatment to keep up the pressure.”  He then added, “Wax is probably too powerful, tenure at an Ivy League law school probably too secure, for her to face a genuine threat to her employment, but most of the time deans and presidents indulge their desire to personally-but-also-institutionally condemn that’s not true.”

Still, in cases where certain fundamental institutional commitments central to fulfillment of higher education’s mission are concerned, condemnation may be necessary, especially if the faculty member is not the target of a potentially dangerous online (or even physical) mob that such condemnation might encourage.  And the Wax case may be such a case.  It’s certainly debatable, but in this instance I don’t find Levy’s stance entirely convincing.  I cannot fault Dean Ruger for his effort to disassociate Penn Law from Wax’s comments and to speak to those in the campus community offended and distressed by them.  It’s part of his job.  (Although I must add that to some extent disassociation may not be needed.  When Wax told a reporter that she had no plans to leave the school because “When I’m gone, the place goes full North Korea. (It’s 95% there)” it’s pretty clear she wasn’t speaking for the institution.)  Unfortunately, however, Dean Ruger’s statement failed even to mention Wax’s right to extramural expression or to indicate that Penn would defend her academic freedom.  This was mistaken and wrong.  But it was not, in and of itself, a violation of academic freedom.  Administrators are within their rights to criticize or even condemn remarks or positions taken by their faculty members; such comments alone do not abridge academic freedom.  But in most cases such criticisms are nevertheless ill-advised and may prove harmful, especially when they are not accompanied by a vigorous defense of the faculty member’s right to make controversial public statements.

Whittington writes, “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.”  And he continues, “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.”

I agree.  However, I fear that Whittington may be drawing too clear a line here.  I will explain.  Since the mid-1960s the AAUP has held 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 to serve.  Extramural utterances rarely bear upon the faculty member’s fitness for continuing service.”  But what is required for “fitness?”  In 1971, an AAUP investigating committee in the case of the dismissal of Angela Davis from a lecturer position at UCLA sought to answer that question:

Most obviously, it means the capability and the willingness to carry out the duties of the position.  First among these, for most academic personnel, are the duties of a competent and responsible teacher. . . .  Depending on his discipline, rank, or assignment, and the practices of the institution, a faculty member’s position may involve other responsibilities, in research, in advising students, in sharing departmental chores or administrative duties, and the like.  To meet the AAUP’s standard of unfitness, then, the faculty
member’s shortcoming must be shown to bear some identified relation to his capacity or willingness to perform the responsibilities, broadly conceived, to his students, to his colleagues, to his discipline, or to the functions of his institution, that pertain to his assignment.  Thus, under the quoted principles, institutional sanctions imposed for extramural utterances can be a violation of academic freedom even when the utterances themselves fall short of the standards of the profession; for it is central to that freedom that the faculty member, when speaking as a citizen, “should be free from institutional censorship or discipline” except insofar as his behavior is shown, on the whole record, to be  incompatible with fitness for his position.

The Davis report then wisely added,

At some stage in a contested argument over academic responsibility and fitness to teach, appeal must be made to someone’s judgment in applying what are necessarily somewhat imprecise standards for the
limits of propriety of extramural controversy.  The judgment to be made is how far the condemned polemics fall below a professionally tolerable norm, and about the gravity, the frequency, and other circumstances of the incidents along with other evidence bearing on the speaker’s overall academic responsibility.  It is entirely possible, even likely, that the balance might be struck differently on the same evidence by leaders of the academic community and by members of a governing board, especially where political and other public controversy is involved. . . . In the light of these considerations, the wisdom of the AAUP procedural standards—which require careful exchange of views between faculty committees, administrations, and governing boards in disciplinary actions of the present kind—is apparent.

Whittington’s post includes a long and bracing paragraph in which he points to how the argument that Wax should somehow surrender her academic freedom because she makes “some students feel like she might not think highly of them or value their contributions to the campus community” has in fact been made against a whole series of faculty members, from Steven Salaita to Johnny Williams, most of whose opinions are antithetical to Wax’s.  Among the cases he cites is that of Joy Karega at Oberlin College, a case that I discuss in chapter 3 of The Future of Academic Freedom.  But Karega was dismissed from her position and the AAUP did not object or investigate, even though a strong argument could be made that her extramural antisemitic comments did not merit dismissal.  But a duly constituted faculty committee disagreed and our procedural standards were largely observed.  This is not to say the decision was one I would have agreed with or that Whittington is wrong to draw the parallel with Wax, but only to point out that the line between denigration and fair treatment may not be as easy to identify as Whittington suggests.

Could it not be argued that Wax’s repeated disparagement of minorities, including of minority students at Penn, creates a situation in which such students “could not reasonably expect that Wax would treat them even-handedly,” to quote a tweet by NYU law professor Christopher Sprigman, even if evidence that she has in fact done so is inadequate?  And could it therefore not be said that this goes to “fitness” for her position?  “Are we really unable to distinguish between legitimate concerns that Wax won’t treat non-white students fairly vs those of, say, conservative students who claim that a law faculty’s supposed liberalism makes them uncomfortable?” asks Sprigman. 

In fact, Penn administration has already made a negative assessment of Wax’s “fitness” for certain tasks previously central to her appointment.  Last year after video of an interview with Wax circulated in which she made unsubstantiated (and empirically false) claims about black law students at Penn, including that none had ever finished in the top quarter of her class, Dean Ruger barred her from teaching required classes.  “As a scholar she is free to advocate her views, no matter how dramatically those views diverge from our institutional ethos and our considered practices,” Ruger wrote at the time.  “As a teacher, however, she is not free to transgress the policy that student grades are confidential, or to use her access to those Penn Law students who are required to be in her class to further her scholarly ends without students’ permission.”  Whittington mentions this action, but offers no comment on its legitimacy.

Apparently Wax did not contest the decision and it did not come before a faculty committee.  On the one hand, removal from teaching required classes can be seen as a legitimate use of institutional authority to assign workload.  After all, faculty appointments, including those with tenure, do not guarantee that appointees will always be able to teach the classes they desire.  On the other hand, there is at least a whiff of disciplinary action here.  Could such a reassignment not be seen as punishment?  Frankly, I can’t say, and the question would best be resolved through academic due process at the institutional level.  But I can say that with such an action the question of whether Wax’s extramural expression impacts her fitness to carry out at least one portion of her job has, at least for the moment, been answered affirmatively by her dean.

It would be — and most definitely should be — extremely difficult to dismiss a tenured faculty member for unfitness on the grounds that her extramural expression could create a classroom atmosphere so intimidating to the learning of some students that this goes to her fitness for the position.  But in principle, I think, this is not inconceivable.  Whether Wax will, upon her return from a previously scheduled 2019-20 sabbatical, provide a test for that principle remains to be seen.

Wax most definitely is entitled to the protections of academic freedom.  But she must not be protected from legitimate criticism.  And in that light, I will conclude by quoting the final paragraphs of a post by Paul Campos of the University of Colorado Law School:

If Amy Wax were, say, a Maoist, or a proponent of the divine right of kings, I wouldn’t pay any attention to her.  One of the costs of tenure is that sometimes people will use their academic positions to push intellectually bankrupt, morally noxious, off-the-grid points of view.

The problem of course is that Wax’s views, while intellectually bankrupt and morally noxious, are the opposite of off the grid.  White supremacy is at the center of the contemporary American right wing, which is why such desperate efforts are being made both to deny this, and to cover it up with the thinnest of pseudo-academic gloss.  This is why Wax was given a starring role at the National Conservatism conference, despite the organizers’ valiant attempts to try to ensure that the intellectual defense of contemporary American conservatism would get back to saying the loud parts quietly again.

Amy Wax’s name is legion, although most of her fellow travelers do a better job of keeping their real views a bit more on the down-low.  She is a symptom of how depraved American conservatism has become in the age of Trump, and the fact that she is such florid symptom of the underlying disease should be acknowledged and studied by students of that disease.