Anita Allen (Penn) is a distinguished legal scholar and philosopher, whom I greatly respect, which makes her remarks here all the more shocking. She is clear that she is expressing only her "own opinion," but given that she was a highly-regarded Vice Provost at Penn for many years, one can only worry about the future of academic freedom at Penn if the university and its Faculty Senate embrace her views.
Although Professor Allen notes that Penn is committed to the AAUP academic freedom principles, what she proposes is a clear violation of those principles, in particular, the principle that "[w]hen [faculty] speak or write as citizens, they should be free from institutional censorship or discipline." By contrast, Professor Allen proposes that faculty can be sanctioned (perhaps even terminated) for speech that:
(1) "poses a significant hazard to the interests of [the academic] community or its express academici and moral values" (around 13 minutes);
(2) poses "a significant hazard to the community or its core values, such as equity, inclusion, and diversity" (around 19:30)
(3) "ha[s] a negative impact on recruitment and retention of diverse faculty, students and staff" (around 21:30)
(4) "repeatedly requires onerous extra, highly stressful work by administrators due to students', parents', colleagues', staff's, alums' and others concerns and complaints" (around 21:30).
She also states that while "dissent" is "rarely sufficient grounds for termination" (rarely?), dissenting views that are "highly offensive and hurtful to students, colleagues or staff," as well as racist, sexist, homophobic, and discriminatory speech may be sufficient (around 26 minutes).
Obviously, Professor Allen's remarks are a brief for sanctioning Penn law professor Amy Wax, whose racist extramural speech satisfies most of these requirements. As the Academic Freedom Alliance has noted, Professor Wax's extramural speech is clearly protected by the AAUP principles. (Discriminatory conduct in the classroom would not be protected, obviously; and other statements by Professor Wax fall outside the scope of academic freedom, as I have noted previously.) While I empathize with the exhaustion of Wax's colleagues at Penn, it seems to me dangerously short-sighted to adopt standards like those Professor Allen proposes. One need only remember (as we had occasion to note just yesterday!) that plenty of Republican elected officials view Critical Race Theory as "racist" speech, that is "highly offensive and hurtful" to white students, and there's no doubt that public university administrators in red states are facing "onerous extra, highly stressful work" to defend the academic freedom of their colleagues working in and around CRT. It won't do to simply say that's a "misapplication" of the standard: unintended consequences of rules and laws are something that has to be taken into account, and especially when the evidence is right before us of how these standards will be construed at certain institutions and in certain states.
My colleague, the geophysicist Dorian Abbott, is opposed to diversity in academic hiring and admissions, and his views would almost certainly run afoul of Professor Allen's strictures. The University of Chicago President responded very differently than a university that took Professor Allen's guidelines seriously. As the Chicago President stated: "Faculty are free to agree or disagree with any policy or approach of the University, its departments, schools or divisions without being subject to discipline, reprimand or other form of punishment." In Professor Allen's vision for the university, faculty are not free to disagree with the core values of the university, such as diversity, equity and inclusion.
As noxious as Professor Wax's extramural speech is, it would be disastrous in the long-term for Penn, or any other serious university, to adopt standards like those Professor Allen articulates. They would quickly justify massive infringements on not just the right of faculty to speak as citizens about matters of public interest, but on core academic freedom values in scholarship as well. (Recall, e.g., the public controversy over the book The Israel Lobby and U.S. Foreign Policy by two leading international relations experts at Chicago and Harvard, which surely ran afoul of Professor Allen's criteria [accusations of anti-semitism, burdens on administrators, complaints from alums, students etc..)
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