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Today, Dean Theodore Ruger of the University of Pennsylvania Carey Law School did an about-face, abandoning both his earlier defense of the importance of faculty expressive rights and his university’s to secure those rights. 

Two weeks ago, Ruger issued a sharply denouncing professor Amy Wax, whose comments on immigration during an off-campus spurred a renewed round of pressure on the institution to curtail her speech. But while condemning Wax’s views, Ruger explained — rightly — that taking steps to sanction her for her “protected” speech would undermine the expressive rights of all faculty members:

Yet Wax makes these statements as a faculty member with tenure, a status that has done, and continues to do, important work in protecting the voices of scholars on a range of controversial topics including those who are actively challenging racism, sexism, and other inequities in society. The same academic freedom principles that permit current scholars to engage in critical and overdue analysis of this nation’s historical and structural discrimination – despite zealous efforts to censor such speech by some – also apply to faculty like Wax who voice xenophobic and white supremacist views.

Universities should — and, if they receive federal funding, legally must — address discriminatory conduct. But holding or espousing offensive views is not the same as acting on them.

Ruger was right that expressive rights are the shield against pressures on faculty of all ideological perspectives. Witness the legislative efforts to curtail conceptions of critical race theory — efforts that too often, including in Penn’s own Pennsylvania, seek to apply prohibitions to discussions in higher education. Or consider the routine chorus of complaints — from social media, conservative commentators, and lawmakers — that a faculty member’s views on racism frustrate conservative or white students’ expectations of fair treatment in light of a professor’s views on racism or conservative politics. 

But Ruger’s statement did not satisfy students, who signed an calling for the university to sanction Wax and establish a committee to “reform tenure” to “ensure that tenure is consistent with principles of social equity.” (If this “reform tenure” rallying cry sounds familiar, it’s because you can also hear it echoing from the halls of ruby red state legislatures also eager to curtail academic speech they don’t like.) And it did not satisfy members of Philadelphia’s city council, who sent a letter demanding action (and subsequently explained to the student newspaper that the city council would pressure the university if it did not adequately respond). And it did not satisfy Pennsylvania state lawmakers, who held a outside of the law school.

As that press conference unfolded, Penn issued a statement promising “imminent” action. Today, Ruger followed through on his pledge to cave,  his prior defense of academic freedom and announcing that he will become the complainant in bringing disciplinary charges against Wax.  Those charges may lead to "major" sanctions against Wax, which include the possibility of suspension or termination for "just cause," notwithstanding her status as a tenured professor.

Universities should — and, if they receive federal funding, legally must — address discriminatory conduct. But holding or espousing offensive views is not the same as acting on them, and student discomfort or speculation that they will not get a fair shake cannot serve as a justification to punish otherwise protected extramural speech. Penn’s open-ended approach invites suppression of any speech that offends some segment of society. It will not be limited to Wax, but will instead be deployed against faculty whose speech angers students, media outlets, activist groups, or lawmakers. 

Indeed, forecasts of discriminatory treatment are frequently marshaled to justify sanctions against faculty members whose speech about race or racism rankles predominantly white communities or garners conservative media outrage. Take Essex County College (NJ), where administrators justified the suspension of an adjunct lecturer — for comments about Black Lives Matter on Tucker Carlson’s show — on the basis that they had been “inundated” with concerns from students and faculty (public records sharply contradicted that claim.) Or Rutgers, where administrators initially ruled that a professor had violated a discrimination and harassment policy because his comments about gentrification and white people led to “student concerns over taking [his] classes.” Or a West Virginia professor who was terminated, despite being tenured, ostensibly due to concerns for student comfort (but, according to an administrative law judge, more likely because of pressure from state lawmakers) over her comments complaining about unmasked Trump supporters at rallies, in which she sardonically said she hoped they’d die out before the election. 

Wax’s detractors will naturally — and not unreasonably — point out that she was penalized in 2018 over comments about the grades of minority students. As FIREsaid at the time, Penn could reasonably address confidentiality concerns, but cautioned these must be “fairly and consistently enforced” and not “used pretextually to punish Wax for the substance of her views.” Penn did sanction Wax at the time, removing her ability to teach first-year classes. But Wax’s 2018 comments are not a blank check to sanction her for any offensive speech in the future, and the balance of complaints about Wax appear to concern protected extramural speech — that is, speech outside of the classroom, where the institution’s interest in regulating faculty expression is at its lowest. 

It would be tempting to say Ruger’s action is shortsighted and discounts the likelihood that it will hurt Penn’s ability to defend other faculty members in the future. But Ruger knows that, and is through tenure and freedom of expression to get at Wax, if it will relieve the pressure on the university. Penn’s capitulation should concern even Wax’s harshest critics, especially those professors in other parts of the country who find themselves in the political minority.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIREtoday. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).