Chronicle of Higher Education Op-Ed: Defending Academic Freedom Means Defending Amy Wax, by Alex Morey (Foundation for Individual Rights and Expression):
The controversial law professor offers a test of principle.
Why should a professor’s speech outside of class, on a matter totally unrelated to their area of expertise, be protected by academic freedom?
Arizona State University professors Richard Amesbury and Catherine O’Donnell don’t think it should be. In a recent Chronicle Review essay, they argue that the University of Pennsylvania properly disciplined law professor Amy Wax for “unprofessional” extramural comments. Wax has stated quite controversially that Black students have lower average cognitive ability and get worse grades in her classes, and that America would be “better off” with fewer Asians.
Amesbury and O’Donnell argue that the First Amendment principles broadly protecting free speech at public colleges and universities (and at the many private ones like Penn that adopt those principles independently) are fully distinct from academic freedom. So while the Constitution insulates Wax’s extracurricular commentary from government intrusion, academic freedom — which they characterize as protecting “the ability to assess the content of what is said on its merits” — ought not insulate her from faculty-sanctioned discipline.
But Amesbury and O’Donnell are working from a faulty premise. Academic freedom doesn’t work like that. …
Today, with the rapid proliferation of “divisive concepts” laws barring teaching certain views on race and gender, and as colleges routinely cave under pressure campaigns from legislators and other powerful actors to fire faculty members they disagree with, oxygen is being pumped out of higher ed at alarming rates. Accusations of “unprofessionalism” and “incivility,” entirely subjective determinations easily malleable to the political whims of administrators, are now popular tools used to silence controversial professors.
Make no mistake: Discrimination and harassment are also serious threats to campus climates and should be swiftly punished. But a far more reliable metric for doing so is to insist upon the precise definitions in antidiscrimination law, under Titles VI and IX, for example, rather than chipping away at professors’ expressive rights as an end run toward the same goal.
In Wax's case, Penn sought to prove allegations of actual discrimination — allegations, importantly, that arose only after Penn announced that it was looking for a way to oust her. Even with the slim procedural protections it afforded her, Penn could never prove Wax actually discriminated against any student. Instead, they punished her for “flagrant unprofessionalism.”
But if expressing controversial views alone is enough to cost a professor their job, faculty with any views those in power find unwelcome are at serious risk.
To honor the transcendent value of academic freedom, faculty need breathing space in and out of the classroom. Protecting extramural speech as a core tenet of academic freedom gives it to them.
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