The muddled rules governing campus speech may finally get their day in court in a potential test case of national proportions, pitting Amy Wax, an outspoken and controversial (formerly chaired) professor of law, against her home institution, the University of Pennsylvania. Though not posed this way, the question on the table is whether a professor may be disciplined for holding and expressing racist, sexist, homophobic, or other kindred beliefs.

This past September, Wax was upbraided and punished by the university after a multi-year investigation into her very public practice, both on and off campus, of uttering racist, offensive, and demeaning statements about supposed characteristics of groups of people classified by race, sex, and ethnicity, among other things. She was suspended at half pay for the 2025-26 academic year, removed from her named professorial chair, and barred for life from receiving summer research grants. In 2018, she had been precluded from teaching required first-year courses. Despite demands over the years by thousands of students that she be fired, she remains a tenured professor. (Professors at some law schools would consider such a suspension the equivalent of a full-year sabbatical at half pay.)

A formally appointed university investigating committee found, in the words of a letter of reprimand signed by Penn’s provost, that Wax has “engaged in ‘flagrant unprofessional conduct’ that breached your responsibilities as a teacher to offer an equal opportunity to all students to learn from you. That conduct included a history of making sweeping and derogatory generalizations about groups by race, ethnicity, gender, sexual orientation, and immigration status; breaching the requirement that student grades be kept private by publicly speaking about the grades of law students by race and continuing to do so even after cautioned by the dean that it was a violation of University policy; and, on numerous occasions in and out of the classroom and in public, making discriminatory and disparaging statements targeting specific racial, ethnic, and other groups with which many students identify.”

The Case against Wax

Even conservative commentators agree that Wax is “undeniably a bomb-thrower.” Among the incidents that Penn cited in issuing its reprimand:

• “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.’”

• “Commenting in class that gay couples are not fit to raise children.”

• “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American,’ adding, ‘It’s a good thing, trust me.’”

• She invited “a renowned white supremacist, Jared Taylor, to be the featured guest speaker in a regular meeting of her Law School course.”

Wax has said repeatedly in public that few black students ever earn grades that put them in the top half of the class at Penn’s Carey Law School. In 2017, in a public video discussion on affirmative action policies, she said: “I don’t think I’ve ever seen a black student graduate in the top quarter of the class, and rarely, rarely, in the top half. I can think of one or two students who scored in the top half of my required first-year course.” Penn heatedly denied these claims and it was this incident that led to her being barred from teaching first-year required courses.

Over the years she has publicly made sweeping generalizations about differences among groups of people. Wax has said, for example, that “women, on average, are less knowledgeable than men.” She has also said: “On average Blacks have lower cognitive ability than whites. That’s just a fact.”

Wax has threatened to sue Penn unless it disavows the sanctions. Such a suit would likely claim breach of contract (although as a private university Penn is not bound by the First Amendment, it does purport to honor principles of academic freedom for its professors) and may also include claims of racial discrimination. Wax has pointed to many instances of unsanctioned antisemitic rhetoric on campus. Though many of the facts, at least as reported, remain murky, the case may finally bring clarity to a tangled set of issues involving speech rights on campus.

Scholars and advocacy groups have lined up on both sides of the controversy. Free-speech absolutists condemned the university sanctions. Speaking for FIRE (Foundation for Individual Rights and Expression), Alex Morey, vice president of campus advocacy, told The New York Times that Penn’s actions “should send a chill down the spine of every faculty member, not just at Penn but at every private institution around the country.” Others have pointed to distinctions between First Amendment principles and those of academic freedom. The First Amendment does not give a fig about the veracity of academic claims or the professionalism of the speaker. But, according to some views, professional norms very much do matter in determining the limits of academic freedom.

The nub of the opposition to Penn’s sanctions is simple: freedom of speech entails the right to speak out on any controversial topic, regardless of who is offended or the truth of the opinion. To the university and its proponents, however, the right to impose its punishments is equally simple: no one has the right, in the words of a University hearing board, to “engage in ‘flagrant unprofessional conduct’ that breached your responsibilities as a teacher to offer an equal opportunity to all students to learn from you.”

Let’s be clear that Amy Wax is not a simple-minded provocateur, an addled lawyer who managed to cling to a teaching position from which she could mouth conservative talking points. Her credentials make clear that her intelligence and abilities put her in a far more elevated category. Her academic record is stellar — and surprising. She graduated from Yale in 1975 with a B.S. summa cum laude in molecular biophysics and biochemistry. The following year she took an M.Phil. at Oxford in philosophy, physiology, and psychology. She then enrolled at Harvard Medical School, earning her M.D. degree with distinction in neuroscience in 1981. During her last year at Harvard, she was simultaneously enrolled at the Law School. Afterward, she interned and was a resident in neurology at Montefiore Hospital Medical Center and New York Hospital-Cornell Medical Center. While working as a consulting neurologist, she finished her law degree at Columbia Law School in 1987. She then clerked full-time for Judge Abner J. Mikva of the U.S. Court of Appeals for the DC Circuit, thereafter working six years in the office of the U.S. Solicitor General, where she argued 15 cases before the U.S. Supreme Court, before starting her legal teaching career at the University of Virginia Law School in 1994. If she’s a crackpot, she’s a sophisticated and determined one.

Though no lawsuit has yet been filed at year’s end, let’s work through some hypotheticals that might shed light on what’s at stake. Does freedom of speech (and academic freedom, if it is different) convey an absolute right to pronounce, true or false, on anything at all, or at least on matters of public controversy? Or does the answer depend on the context in which the speech was made? Specifically, does the community setting of the university and the bestowal of “academic freedom” on the professoriat add to or subtract from the right to say anything about everything?

Eleven Hypotheticals

Hypothetical 1. Professors 1A, 1B, and 1C, who teach in different academic departments of a public university, repeatedly assert in class that the sun goes around the earth. Students who disagree will find their grades lowered. Professor 1A teaches basic astronomy; Professor 1B teaches comparative religion. Professor 1C teaches microeconomics. It seems safe in a blog to conclude that a university must have power to reprimand and even discharge professors who do not know their own subject and who penalize students for correctly disagreeing (1A), or for teaching likewise in a course that bears only a tangential relation to the issue falsely taught (1B), or for even talking about it in a course that has nothing to do with the false claim (1C). So while anyone can safely spout a false claim about a scientific fact in public, there is no safe harbor for a teacher doing likewise in a classroom.

Hypothetical 2. Professor Two, whose appointment is in the electrical engineering department, announces on the first day that this year he will be lecturing exclusively on his hobby collection of southeast Asian postage stamps. That his lectures contain no false assertions, truth or falsity is not the beginning and end of the university’s supervisory powers. Relevance counts, and a professor who cannot remember where he is or why he is there cannot rely on the First Amendment or any claim about academic freedom to proceed as Prof. Two has announced.

Hypothetical 3. Professor Three maligns her own discipline, saying scholars within its ranks have meretricious motives and have “persistently uttered lies about the discipline’s foundational principles.” As long as she teaches the course (and provides some sort of background and evidence for her claims), academic freedom ought to protect the maverick teacher.

Hypothetical 4. Professor Four says he doesn’t believe in grading and announces to his students on the first day of a course that he will give everyone an A, notwithstanding a university-imposed grading curve. As above, I trust my readers will conclude that whether you consider grading useful or pernicious, a university may require that courses be graded in a manner reasonably related to the norms of the courses taught.

Hypothetical 5. Professor Five publicly lies about specific student grades and how they are arrayed across various groupings, like race, sex, religion, and national origins. It seems enough to say that false claims about such matters are likely defamatory as well as invasions of privacy and that speaking falsely about university practices, thereby bringing the institution into disrepute, would not rouse the First Amendment to voice an objection when Professor Five is fired.

Hypothetical 6. Professor Six truthfully reveals that the university has lied in reports of how student grades are arrayed across various variables, like race, sex, religion, and national origins. The public employee whistleblower faces different rules and problems that to enumerate would take us well beyond the scope of this post. In Garcetti v. Seballo, a 2006 case, the Supreme Court said that the First Amendment does not shield employees whose speech is part of their official duties, if what they say is contrary to the wishes of their employers. But the Court left open the possibility that the outcome would differ for jobs involving scholarship and teaching. Whatever the resolution of Professor Five’s problems under Garcetti, they do not, at least not without evidence, bear on Wax’s case. (And in any event, Wax is not a public employee.)

Hypothetical 7. In front of the entire class, Professor Seven repeatedly mocks a student who stutters. I know of no case that would prevent the university from punishing or firing a teacher who directly abuses his own students, especially when there is not even a pretense of a pedagogical purpose.

Hypothetical 8. On several occasions, Professor Eight has publicly stated that he cannot abide the looks of a particular student. Ditto. Though opinions of this sort are plainly protected by the First Amendment, I’m dubious that a court would allow Professor Eight to hide abuse behind the label of “opinion” in a classroom setting, certainly when the speech in question is wholly unrelated to the content of the course.

Hypothetical 9. Every time a Bible-quoting evangelical student who has persistently denied the reality of biological evolution raises her hand in his evolutionary biology course, Professor Nine exclaims: “not another comment from a student whose beliefs are crazy!” and then calls on the student to speak. This and the next two hypotheticals raise the problem of discrimination in its more subtle forms. This hypothetical pits the disruptive student against an exasperated professor who has lost his cool. We’d need to know more.

Hypothetical 10. Professor Ten publicly and repeatedly affirms in class his belief that “the races differ inherently in intelligence, morality, decency, and knowledge.” The First Amendment would shield the rabble-rousing speaker from governmental retribution if he’s running for office, working the cash register at the local supermarket, or writing or promoting a book. Whether the First Amendment shield would stay upright in front of the classroom is another matter. What’s missing are facts to substantiate or disprove the claim that a teacher who espouses such an opinion is one who is necessarily or likely discriminating against students on the basis of race. The Supreme Court has made it clear that laws barring hostile and pervasive workplace environments can overcome free speech claims. I see no reason to exclude classroom settings from this principle. These considerations extend to Amy Wax’s case. But we don’t have sufficient facts to decide the case. One of the biggest failings of the news accounts is the paucity of detail beyond the sensational one-line quotations. I spent more than 30 years in teaching environments in which exams were graded anonymously. Each student submitted the exam with a number, instead of a name. I did not get a copy of the number key until the exams were graded and recorded by the registrar. That does not mean, of course, that pervasively hostile and bigoted comments would not affect classroom performance by the students. Such comments would provide ample reason to investigate how the professor taught. What Penn’s law school grading practices are and whether Penn investigated Wax’s classroom performance are not matters of public record (or at least they are not matters easily accessible). The journalists have not done their jobs.

Hypothetical 11. Professor 11-A, who teaches constitutional law, has emphatically stated that the Fourteenth Amendment’s Equal Protection Clause does not prohibit school segregation, an assertion that is manifestly untrue, at least as the Court has read the Clause for more than 70 years. Professor 11-B tells his students that Brown v. Board of Education was wrongly decided. Professor 11-C tells her students: “I would vote to overrule Brown.” You see where this is going. Now the statements are directly connected to the course being taught, so there’s no dealing with any of these professors on the grounds of relevance. But Professor 11-A is simply wrong, unless what he’s saying is that the constitutional text as written does not prohibit segregation. If I were the academic dean, I’d be having words with him, the sooner the better. Professor 11-B, on the other hand, is clearly stating an opinion. She can’t be called to account for it, unless it is taken as some evidence of an intent to discriminate. All the more so, Professor 11-C’s statement. Hypotheticals 10 and 11 are not easily decided, but that their expressed statements deserve further investigation, as I used to say before I learned to edit myself, seems clear beyond all peradventure.

Where does that leave Professor Wax? On the face of it, sitting as I do in an armchair far removed from her classroom or from having heard the context of the longer remarks from which all the offending comments have been pulled, she has a strong case against the university. As inelegant as her rhetoric has sometimes been (for example, she’s blasted various non-Western nations as “shitholes”), and as intemperate as many of her comments undeniably are, at least without much more background to inform us, the First Amendment is a tough old bastard, and high enough to shield her — unless.

Unless these statements are subterfuges for discriminatory intent and conduct. There’s much to be said about the effect of pugnacious offensiveness on those entrusted to the speaker’s care. And about the ethos of the classroom. It is not an intuitive answer that no student is required to take her courses. If there is reason to believe certain students would be at a disadvantage sitting in an invective-filled classroom, Penn’s policy, without more, simply ensures that affected students will be excluded from a course that the law school offers. That itself is a form of discrimination.

The great gall of Amy Wax is that she pugnaciously taunts the avenging angels by arguably standing close to but not over the line. She manifests (to some observers at least) an expressed racism without (so far) providing any evidence that she has let her offensive beliefs and statements dictate her further conduct. What we need, as a society, is to understand how to determine whether bigoted beliefs, at least in the form of non-nuanced statements, are necessarily harbingers of bigoted (read, discriminatory) actions — and whether Penn’s policies (or lack thereof) contribute to the offense-giver’s ability to hit her target (if that is her intention). You might object to this narrow reading of bigotry’s effect. Might this case reach even further, ultimately deciding whether the mere presence of the bigot in a classroom need not be tolerated? That seems an unlikely outcome, but these are revolutionary times.

It is possible, although I think it a weak case, that separately Wax may have run afoul of university regulations (and applicable laws) that student grades may not be disclosed. I’m not persuaded that claiming students of a particular description rarely wind up in a high place on the grade distribution list is a disclosure of grades prohibited by law or policy. Perhaps it is. That may be a colorable claim. But it’s almost New Year’s Eve and I’m not going to try to pin it down.

I leave, for today, with the thought that if Amy Wax actually does file suit, then in some new year, maybe not the one coming up, given the truly offensive slowness of the American legal system, we may finally be given answers to important and practical questions about the power of community environments, like classrooms and workplaces, to contain the penchant for offensiveness that will surely become ever more pervasive in the years ahead.

Happy New Year.