Professor Amy Wax Calls Out Higher Education’s Free Speech Double Standard

Amy Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School.

This interview was edited for clarity.

Ari: What precedent does your case set?

Amy: The penalty imposed on me, the punishment I've received, is for opinions I expressed mainly outside of school — in conferences, media appearances, podcasts.

According to academic freedom principles, which the American Association of University Professors and Yale’s Woodward report repeatedly affirm, those expressions are not punishable.

I haven't done anything wrong. So, what my punishment does is effectively undermine that rule —a rule that applies not just to university professors but to all citizens, as we all have the right to express our views publicly.

Professors are no exception. It’s a serious violation of freedom of expression, academic freedom, and long-standing policies on freedom of speech.

Ari: Can you talk about the double standard here? I know it was a big part of your defense, showing how they're selectively applying free speech standards to you but not to everything else happening on campuses.

Amy: You're referring to what happened after October 7 in the Middle East. By that time, my case had already been heard, and the hearing board had issued its decision, so it was moving up on appeal. Unfortunately, the appeal process is strictly for procedural issues.

Although I identified plenty of procedural defects, it didn’t address the double standard in how post-October 7 protesters and faculty were treated versus me.

That’s an argument I’ve made since October 7 and one I’ll pursue in my lawsuit, asserting that Penn has been inconsistent and discriminatory in how it handles comments about Israel and Jews compared to black students or other minorities.

There have been incidents at Penn where one could easily apply the same made-up standard they used against me, “inequitably targeted disrespect,” to comments about Jews.

For instance, a cartoonist, Dwayne Booth, drew raw cartoons depicting Netanyahu with a bloody shirt, Jews drinking the blood of Gazans, and Jews running concentration camps. These tropes are straight out of the Protocols of the Elders of Zion. If that’s not targeted disrespect, I don’t know what is.

While I disagree with the standard itself, if it exists, it should apply to everyone. The irony is that Liz McGill, under oath to Congress last December, testified that Penn abides by strict First Amendment standards, meaning universities have a very narrow ambit for punishing speech.

Yet, in punishing me, they blatantly violated that standard. They’ve said one thing and are doing another.

I also have tenure, which presumably brings along all sorts of protections, and those protections have been stripped from me.

Ari: I read Aaron’s report on the settlement efforts, which seemed aimed at silencing you from speaking out about issues within the university. Why do you think they’re so afraid of dissent from within?

Amy: You’d have to ask them, but I think it’s a mix of arrogance and a belief that they’re untouchable. They think they can do whatever they want without criticism or accountability. They don't want to justify or explain their actions, and they aren’t functioning like an academic institution that needs to make coherent arguments.

From my seven years being prosecuted by Penn, I don't think they have anyone capable of handling these complex issues thoughtfully. The people overseeing free expression don’t seem to have the clear positions that one might expect.

The students have no idea what the standards are either. You would think a university would at least owe it to their students have clarity, but they have ‘omerta,’ a code of silence, “We’ve done this to this professor, and we will never talk about it. We will never explain it.”

Penn’s leadership often sends chirpy newsletters and other communications to the university community and alumni, but they never discuss these controversies.

They refuse to engage in any public forum to explain their actions against me specifically. I know organizations have tried to set up events to discuss what’s happened to me, but Penn has shown no willingness to participate.

I say, “Good luck getting anything out of Penn.” They don't feel the need to justify themselves. They get to do what they want.

Actually, one of the people in the general counsel's office, told my lawyer a while ago, “We don't care if you sue us. We don't care what you say about us, because as long as the students apply and we get federal money and private money, we're good.”

Ari: Do you think this is reflective of today’s student body, compared to students from 20 years ago who had more of a respect for free speech?

Amy: I think it’s well-documented that fewer students seem to value free expression and free speech today. Some still care deeply, but it’s not as common.

I think this erosion of commitment to our core democratic values stems from a rise in far-left progressive ideology and the need to tell noble lies about affirmative actions, group differences, and social reality.

There is also multiculturalism and a cult of diversity which takes the position that Western culture is evil, and attacks everything that goes with Western culture, including a very strong commitment to free expression, to finding the truth, to evidence, to robust debate, as a cover for exploitation and oppression.

These ideas are ingrained in students from day one, eroding their commitment to principles like free expression and robust debate.

Ari: What’s your diagnosis of what went wrong in modern universities? You often mention the bureaucracy and administration, but where do you think universities started to fail?

Amy: It’s complicated. A lot of it is the adoption of far-left, progressive ideologies by elites and intellectuals, who bring these ideas into universities with very partisan professoriate and administrative personnel.

In addition, the bureaucratic apparatus has grown by leaps and bounds from government regulations, the creation of the Department of Education, the proliferation of all these rules, the obsession with diversity, equity and inclusion, which has to be overseen, managed, and propagandized.

This bureaucratic bloat has led to an environment that doesn’t prioritize academic values like intellectual rigor, robust debate, or the preservation of our culture. These institutions are now more focused on branding and maintaining their elite status rather than fostering open dialogue.

They’re really not serving the function that they were meant to serve. And when you extend it to the professional schools, like medical schools, which are huge money centers billions of dollars of federal money.

They receive this federal money for research, for medical care and the like, but they are all in for diversity, equity and inclusion, which has led to double standards, the decline in standards, lack of honesty, doublethink, gaslighting, suppression of dissent, and penal penalties for people who dare to disagree. That just compounds the problem.

Ari: Many people encounter these changes in universities and in professional settings when they go in for a doctor’s office and see pronouns and woke stuff on sheets and forms.

Amy: Medicine has become increasingly partisan and politicized. Patients now often assume their doctors share their political views, which can make things uncomfortable.

But beyond that, it’s alarming that politics now influences areas like medical education and professional standards. Politics shouldn’t play a role in healthcare, where the focus should remain on patient care and evidence-based practice.

Ari: That’s very true. In your view, how should universities move forward? Some advocate for creating new institutions, while others suggest legislation to restore these institutions to their original purpose. Do you think there's a way toward salvation for these higher educational institutions?

Amy: I really don’t know the answer to that. I’m generally pessimistic, but I support creating parallel institutions as one solution. Within state universities, we see some efforts to promote ideological balance by establishing centers focused on civic thought and traditional subjects.

But the Ivy Leagues and prestigious small colleges maintain their reputation, providing a gateway to upper middle class jobs, which keeps them desirable despite these issues. Trustees and donors could play a role in addressing these problems, yet so far, their focus has been narrow.

Some Jewish donors have made an attempt after October 7, but I don’t think it’s changed very much. And I am cautious of Jewish donors’ focus. I do think we need a safe environment for Jews, but I am suspicious of the idea that we need protection from hearing things people don't want to hear.

That idea is instantly turned on conservatives, turned on me. So, as a First Amendment Hawk, I don’t really go for that. I would rather donors focus on creating an atmosphere of open debate across the board. And I haven't seen that really happen yet. There's been a little bit of movement: a big donor just gave money to Chicago to promote free speech.

The iron lock that the far-left progressive woke mentality has on the universities is very hard to break. But I also don’t think DeSantis’ initiatives to dictate what is taught or not taught at universities is the way to go. Then you’re meddling with free speech rights and it probably wouldn’t be allowed under the First Amendment.

But there are measures that can be taken such as federal and state governments using funding leverage to require institutions to abolish DEI departments, adopt colorblind standards, and trim their bureaucracies. Yet, I don’t think this will effect much change at the end of the day.

Ari: Is there anything in this situation that gives you hope?

Amy: Yes, the students who reach out to me give me hope. I’m surprised and delighted by the steady stream of students at Penn and elsewhere who contact me, sign up for my conservative thought class, and share that I’m the only one they can talk to openly.

They say they don’t trust other professors or the administration to support real academic freedom. They know these principles will be violated if they say something that is considered a threat or politically incorrect.

There are a group of students out there who are not drinking the Kool-Aid. They know they are getting screwed by a top-dollar bad education.

Ari: It’s good to hear those students exist, and I think we’re only going to see more of them, as we see the younger men of this country become…

Penny: Men! It’s mostly men. The men are much more questioning of what has been peddled to them, but there are women as well. Women who tend to come from more traditional backgrounds come to college and hear things that are completely at odds with how they’ve been raised.

With men, it tends to be a more intellectual curiosity — seeking out alternative points of view. Commonly, on the internet, they encounter ideas, facts, and evidence that don’t square with the ideology that has been pushed on them.