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Higher Education’s Amy Wax Problem

When should faculty face major sanctions?

July 31, 2022

When I was a junior faculty member, I considered the word “professional” one of those value-laden terms that could be invoked to disparage anyone who didn’t fit in.

To criticize someone as unprofessional struck me as a much too easy way to attack colleagues on the basis of their ideas, their demeanor or even their appearance.

As I’ve grown older, my position has changed. I’ve grown more sensitive to the ways that faculty can abuse their professional status: not only to bully, harass and intimidate, but to justify virtually anything they might say or do.

I now believe there is a right to expect professionalism among our colleagues—even though that concept’s meaning isn’t crystal clear or self-evident.

I much enjoyed Jonathan Zimmerman’s recent Inside Higher Ed essay entitled “My Amy Wax Problem,” which I consider among the most insightful, thoughtful and balanced arguments I’ve read on the limits to free speech in the academy.

His argument—that academic freedom protects Amy Wax’s right to speak her mind, but not to demean or discriminate against individual students—is a striking example of the balance and nuance that Zimmerman brings to discussions of key educational controversies, whether these involve sex education, poor teaching or free speech.

And yet, even though I agree with Zimmerman’s argument in this particular instance, I do think there are several tough issues that deserve further scrutiny.

One of those issues strikes me as relatively easy: To what extent should college and university administrators denounce faculty behavior that they view as inappropriate or worse prior to a finding by the relevant faculty committees?

For example, was it appropriate for the University of Pennsylvania’s Law School dean to issue a call for major sanctions against Wax based on her “public statements” and purportedly unprofessional behavior? I think not.

While administrators might speak in general terms about their institution’s values, I consider it wrong to appear to prejudge a case, no matter how deeply these individuals feel about a particular matter. Administrators shouldn’t play to the crowd, nor should faculty members feel threatened with reprisals for failing to follow the administration’s preferred course of action.

In my view, the faculty and the faculty alone, should adjudicate such cases, free from any impression that failure to act in the way that the institutional leadership prefers would be problematic. Administrators shouldn’t create expectations about her or his preferred outcome.

Two issues strike me as much tougher. The first has to do with the issue of harm. How should we interpret the legal and moral principle that students should not be subjected to a hostile learning environment?

Obviously, no student should be subjected to “severe, pervasive, persistent” harassment or bullying. But what about the broader principle that students shouldn’t be placed in an environment that denies, limits or interferes with their ability to learn? Might not a faculty member’s outside-the-classroom statements be so patently offensive that any reasonable students would be correct in perceiving bias, prejudice or favoritism?

One recurring example involves those Jewish students who fear that their attitudes toward Israel will be held against them. After all, we do have examples in which faculty members refused to write letters of recommendation for students to study in Israel. I have myself heard from students who fear voicing opinions in class that conflict with their professor’s apparent point of view.

Must the faculty member’s derogatory statements be directed at individual students (which is alleged to be the case in the Wax affair) or are generalized statements sufficient to demand a remedy? And what is an appropriate response?

  • Should a chair or dean counsel the faculty member? Hold a hearing? Consult with an executive committee? Act unilaterally and proactively?
  • Is it sufficient to give students the option of taking a class from another instructor? Or can the impression of partiality and prejudice be so extreme that this warrants a faculty member’s suspension or dismissal?

There are no easy answers to these questions, but it does seem to me that a sound guiding principle is transparency. Administrators must ensure that all faculty members understand the institution’s policies regarding extramural and face-to-face faculty-to-student speech. Faculty should also be informed about legal rules designed to protect students from a harmful education environment and the possible consequences of violating those rules.

A second issue that I find especially tough has to do with professional integrity and fitness. Can faculty members’ extramural remarks or other forms of behavior suggest unfitness to be in the classroom?

What about faculty members who tout conspiracy theories—or, as in the Wax case, who openly express prejudice or bigotry? Or, to take a very different example, what about a faculty member who believes that grades are unfair and gives every student or certain students an automatic A?

Should it make a difference if the instructor does or doesn’t have tenure?

Please don’t consider these issues ethical abstractions. Among the examples that have recently come up:

Many will also recall the case of Ward L. Churchill, whose references to the victims of the Sept. 11 terrorist attacks as “little Eichmanns” prompted the University of Colorado to launch an investigation and dismiss him over purported research misconduct.

Or take the more recent firestorm that erupted after the University of Chicago political scientist John Mearsheimer argued that “the U.S., in pushing to expand NATO eastward and establishing friendly relations with Ukraine,” had helped prompt the Russian invasion.

Those who bear the brunt of criticism for unfitness tend to be those whose ideas stray outside the established consensus, not those who fail to keep up with the most recent scholarship, whose teaching is deficient, whose scholarship is shoddy or nonexistent, who consistently alienate students, or who grade unfairly or inconsistently.

Don’t expect the controversies involving toxic, harmful, unsafe or hostile educational and workplace environments or professional misconduct, integrity and fitness to go away. In today’s highly politicized, polarized and partisan society, the academy is anything but an ivory tower or a safe space for difficult conversations. Colleges and universities lie at the very epicenter of many of the most divisive and contentious controversies of our time.

Meanwhile, in the age of social media, there are many incentives for faculty to be deliberately provocative and confrontational and to voice their opinions in inflammatory and sometimes insulting language. Indeed, I know of instances in which colleges and universities hired faculty members precisely because of their controversy-fueled reputation.

What, then, is to be done?

  1. In most instances that involve perceptions of professorial bias or prejudice, we should follow Zimmerman’s advice and focus our attention on acts or statements that mock, ridicule, denigrate, demean and target individual students.
  2. We must be extraordinarily careful not to encourage, intentionally or inadvertently, students or fellow faculty members to “weaponize” accusations of a hostile educational environment or of professional unfitness as a way to punish those we disagree with. We must recognize that even the process of formally investigating such accusations will inevitably have a chilling effect.
  3. Any administrative response must be utterly consistent and carefully calibrated to the severity of the offense. Colleges and universities should follow the principle that the punishment should fit the crime that similar offenses must face parallel penalties.

Academic freedom and free speech are fragile flowers that do hinge on an acceptance of difference and a degree of civility. If colleges and universities are to function as laboratories for the free exchange of ideas, as bastions for independent thinking and as cauldrons where intellectual controversies can flourish unreservedly, we must beware the temptation to purge our adversaries, quash the enemies within and quell disagreement.

But that doesn’t mean that all opinions are acceptable. Making judgments about harm or professional fitness ultimately depends on the very professionalism that I once, earlier in my life, mistakenly called into question.

Steven Mintz is professor of history at the University of Texas at Austin.

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