I think that this is certainly the right way to frame this issue, and the argument reaches what I see as the right conclusion: academic freedom protections are essential to US higher education and need to be applied regardless of speech content (except when speech becomes action, as defined by court precedents).
One additional solution available to Penn that could be mentioned is that grading responsibilities in Professor Wax's courses could be assigned to a third party, such as another member of the Law School faculty. There is, of course, a cost, and Professor Wax would be being relieved of a burden, but I have seen this solution applied in a similar case elsewhere, and it is effective in relieving students considering enrollment of any anxiety about unfair grading.
My one point of disagreement concerns the need to approve guest speakers. So long as there is a rationale for inviting the speaker that is germane to the course subject, I don't think any professor's academic freedom rights should be curbed on that score at this point (I can imagine an even more dystopian tomorrow where I'd feel differently). Jared Taylor is a very good example to choose. Taylor is well educated, articulate, and respected beyond, I think, any other member of the intellectual alt-right. His views are as described, but he frames them in ways that make debate challenging, not least his urbane and civil manner. It seems to me you could hardly design a more effective learning exercise for law students than one that says, "Listen to this person carefully and then devise a question or brief comment that will effectively expose how one of his arguments is wrong." It is true that had Professor Wax invited a bomb-thrower like, say, Nick Fuentes or (somehow) Andrew Anglin to class, there would have been no intellectual challenge and an increased risk of counterproductive incivility. But Wax did not invite someone like that, and would, I think, be unlikely to do so because of academic norms that generally govern faculty of all political views (not to mention because of security issues involved). I don't see that the Wax case itself requires us to constrain academic freedom in the realm of guest speakers.
"One additional solution available to Penn that could be mentioned is that grading responsibilities in Professor Wax's courses could be assigned to a third party, such as another member of the Law School faculty. There is, of course, a cost, and Professor Wax would be being relieved of a burden, but I have seen this solution applied in a similar case elsewhere, and it is effective in relieving students considering enrollment of any anxiety about unfair grading."
I do think this is an interesting proposal, though I think it impinges on the promise of tenure in a way that some of the other options don't. The reason is there are two things basic to a professor's job in a classroom: teaching and evaluating. To effectively strip a professor of the latter not only signals their unfitness, in a way, but it also relieves them of an elemental aspect to their job that tenure ought to protect. Perhaps a more informal requirement that a course's TAs would handle the grading could work, but anything official where the professor is deemed too biased to perform her evaluative duties is, I think, to conclude she's unfit to be a professor.
You make a good case for Taylor, while odious, being the best embodiment from that perspective to be allowed to speak to the class.
Mar 31, 2023·edited Mar 31, 2023Liked by Berny Belvedere
Thanks for responding!
I see what you're getting at on the substitute-grader approach, but I believe you're extending the idea of tenure beyond its appropriate scope. Tenure protects a faculty member's employment status, but does not concern her specific task assignments. Those matters generally fall under conditions of work that can be grieved through a due process system, usually involving faculty boards of review, which are guided by institutional policies concerning terms of employment that courts have held to be legally binding as elements of an employment contract. If Professor Wax felt that Penn exceeded cause in its resolution of her classroom assignments, she could grieve that issue through due process. Actually, unless Penn has policies prohibiting it, it probably would be within the scope of tenure even if it simply reassigned Wax to full time research and service duties, with no teaching role (and, of course, Wax could grieve that too).
Cases like this show how difficult it is to maintain robust protection for academic freedom--they show a visible cost entailed with protecting the speech of all tenured faculty. Tenure itself inevitably comes under strong fire when some of the people it protects act like Wax (and, on the Left, we may soon see a similar case with Wayne State's Professor Shaviro). Universities sometimes need to improvise responses that protect employment but that to various degrees quarantine individual faculty. That flexibility protects tenure and academic freedom. A university could naturally abuse that flexibility, but that's what policy-bound due process and faculty review boards are meant to address.
The grading in traditional American law school courses differs from everything else in two ways.
First, the grade is determined entirely by only a single final exam; there are no quizzes, no midterms, etc. Even class attendance and participation are not considered.
Second, the grading is "blind" in that students are given a code (usually a number) to write on their final exam and admonished not to identify their work by any other means. Typically, the test proctor(s) are also responsible for verifying that each exam has only a code as an identifier before they are given to the professor for grading. Finally, the professor submits the coded grades and exams to the school administration; once grades are assigned and published, the exams are held for a period and then destroyed.
Under this system, which (per ABA guidelines) would likely be used for any required class, such as the one taught by Wax, it would be difficult for a professor to materially act upon their prejudices, and far more difficult to build a compelling bias case against a professor.
At least, that is how it was done at the University of Illinois school of law when I was there.
Funny sidenote: because of these grading restrictions (and the fact that courses followed the book so closely), we were able to get away with utterly laughable class attendance and preparation habits. A very close friend of mine had a class that met three times a week, for fourteen weeks. He attended a grand total of seven times. That isn't even fifteen percent. He got a B plus. (The class in question was legal ethics, but that is another story).
I think that this is certainly the right way to frame this issue, and the argument reaches what I see as the right conclusion: academic freedom protections are essential to US higher education and need to be applied regardless of speech content (except when speech becomes action, as defined by court precedents).
One additional solution available to Penn that could be mentioned is that grading responsibilities in Professor Wax's courses could be assigned to a third party, such as another member of the Law School faculty. There is, of course, a cost, and Professor Wax would be being relieved of a burden, but I have seen this solution applied in a similar case elsewhere, and it is effective in relieving students considering enrollment of any anxiety about unfair grading.
My one point of disagreement concerns the need to approve guest speakers. So long as there is a rationale for inviting the speaker that is germane to the course subject, I don't think any professor's academic freedom rights should be curbed on that score at this point (I can imagine an even more dystopian tomorrow where I'd feel differently). Jared Taylor is a very good example to choose. Taylor is well educated, articulate, and respected beyond, I think, any other member of the intellectual alt-right. His views are as described, but he frames them in ways that make debate challenging, not least his urbane and civil manner. It seems to me you could hardly design a more effective learning exercise for law students than one that says, "Listen to this person carefully and then devise a question or brief comment that will effectively expose how one of his arguments is wrong." It is true that had Professor Wax invited a bomb-thrower like, say, Nick Fuentes or (somehow) Andrew Anglin to class, there would have been no intellectual challenge and an increased risk of counterproductive incivility. But Wax did not invite someone like that, and would, I think, be unlikely to do so because of academic norms that generally govern faculty of all political views (not to mention because of security issues involved). I don't see that the Wax case itself requires us to constrain academic freedom in the realm of guest speakers.
Excellent reply.
You wrote:
"One additional solution available to Penn that could be mentioned is that grading responsibilities in Professor Wax's courses could be assigned to a third party, such as another member of the Law School faculty. There is, of course, a cost, and Professor Wax would be being relieved of a burden, but I have seen this solution applied in a similar case elsewhere, and it is effective in relieving students considering enrollment of any anxiety about unfair grading."
I do think this is an interesting proposal, though I think it impinges on the promise of tenure in a way that some of the other options don't. The reason is there are two things basic to a professor's job in a classroom: teaching and evaluating. To effectively strip a professor of the latter not only signals their unfitness, in a way, but it also relieves them of an elemental aspect to their job that tenure ought to protect. Perhaps a more informal requirement that a course's TAs would handle the grading could work, but anything official where the professor is deemed too biased to perform her evaluative duties is, I think, to conclude she's unfit to be a professor.
You make a good case for Taylor, while odious, being the best embodiment from that perspective to be allowed to speak to the class.
Thanks for responding!
I see what you're getting at on the substitute-grader approach, but I believe you're extending the idea of tenure beyond its appropriate scope. Tenure protects a faculty member's employment status, but does not concern her specific task assignments. Those matters generally fall under conditions of work that can be grieved through a due process system, usually involving faculty boards of review, which are guided by institutional policies concerning terms of employment that courts have held to be legally binding as elements of an employment contract. If Professor Wax felt that Penn exceeded cause in its resolution of her classroom assignments, she could grieve that issue through due process. Actually, unless Penn has policies prohibiting it, it probably would be within the scope of tenure even if it simply reassigned Wax to full time research and service duties, with no teaching role (and, of course, Wax could grieve that too).
Cases like this show how difficult it is to maintain robust protection for academic freedom--they show a visible cost entailed with protecting the speech of all tenured faculty. Tenure itself inevitably comes under strong fire when some of the people it protects act like Wax (and, on the Left, we may soon see a similar case with Wayne State's Professor Shaviro). Universities sometimes need to improvise responses that protect employment but that to various degrees quarantine individual faculty. That flexibility protects tenure and academic freedom. A university could naturally abuse that flexibility, but that's what policy-bound due process and faculty review boards are meant to address.
The grading in traditional American law school courses differs from everything else in two ways.
First, the grade is determined entirely by only a single final exam; there are no quizzes, no midterms, etc. Even class attendance and participation are not considered.
Second, the grading is "blind" in that students are given a code (usually a number) to write on their final exam and admonished not to identify their work by any other means. Typically, the test proctor(s) are also responsible for verifying that each exam has only a code as an identifier before they are given to the professor for grading. Finally, the professor submits the coded grades and exams to the school administration; once grades are assigned and published, the exams are held for a period and then destroyed.
Under this system, which (per ABA guidelines) would likely be used for any required class, such as the one taught by Wax, it would be difficult for a professor to materially act upon their prejudices, and far more difficult to build a compelling bias case against a professor.
At least, that is how it was done at the University of Illinois school of law when I was there.
Funny sidenote: because of these grading restrictions (and the fact that courses followed the book so closely), we were able to get away with utterly laughable class attendance and preparation habits. A very close friend of mine had a class that met three times a week, for fourteen weeks. He attended a grand total of seven times. That isn't even fifteen percent. He got a B plus. (The class in question was legal ethics, but that is another story).