Sanctions Against Trio of Tenured Faculty Demonstrate Wide Range of Threats to Academic Freedom

Let’s remember why we protect academic freedom in the first place.

In the span of one week, three institutions recently issued significant sanctions against tenured members of their faculty. Digging into the details, we see plenty of reason for concern.

Muhlenberg College fired outspoken pro-Palestinian anthropology professor Maura Finkelstein apparently for her anti-Israel bias. The University of Pennsylvania Carey School of Law—my alma mater—has now suspended Professor Amy Wax at half pay, effective next Fall, primarily on the grounds that her public statements on race relations allegedly created a discriminatory environment. And the University of Wisconsin Regents terminated former UW at  La Crosse Chancellor Joe Gow from his tenured faculty position for making and publishing pornographic, vegan cooking videos with his wife in his spare time, having already fired him from his role as Chancellor last year when the videos surfaced.

All three examples are alarming because they reveal that more and more institutions will jettison academic freedom when faculty express disfavored views, regardless of where those views fall on the political spectrum, or whether they were partisan at all. But before diving into the cases, it is important to remind ourselves why we protect academic freedom in the first place.

As far back as 1957, in a case called Sweezy v. New Hampshire, the Supreme Court declared that the need for academic freedom was “almost self-evident” and explained that, “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.” 

For institutions of higher education to thrive, they must embrace open inquiry, viewpoint diversity, and constructive disagreement—the foundations of our universities as truth-seeking, knowledge-generating institutions. Academic freedom simply cannot survive where professors cannot express controversial views.

The cases for sanctioning Finkelstein, Wax, and Gow each relied, at least in part, on the professors’ controversial expressions to justify their punishments. 

As reported by the Muhlenberg Weekly, after her institution issued a statement on Hamas’s attacks on October 7, Finkelstein sent a statement to the college faculty, where she called Israel a “settler colonial state,” Gaza an “open air prison,” and closed with the assertion that “[f]or Palestinians in Gaza, Israel’s acts of revenge will likely result in absolute annihilation.” On social media, she made similar claims and had arguments with those who disagreed. 

These instances, including an allegation that she exhibits bias in the classroom, were the central basis of a change.org petition calling for her termination and a complaint with the Department of Education. According to the petition, “[b]ecause of this dangerous rhetoric, we … demand Dr. Finkelstein is removed … to protect the students and the college from her radical and hateful views.” 

Last week, the Department of Education resolved the complaint against Muhlenberg by entering into a Resolution Agreement with the institution. In the agreement, OCR asserts that Muhelenberg failed to meet its obligations under Title VI, when it concluded that Finkelstein’s online expressions were protected and required the institution to provide the agency with proof that it, “completed an investigation(s) [sic] into whether actions by the Professor, based upon the totality of the circumstances, created a hostile environment for Jewish students on campus.”

As controversial as her views are, there is no doubt that Professor Finkelstein had the right to express them online. Moreover, there’s no question that her views on the Israeli-Palestinian conflict are germane to at least one course she teaches, titled, “Special Topic: Borders & Boundaries,” exploring issues related to mass migration and refugee crises. Expressing strong viewpoints alone does not create a hostile environment. We are aware of no evidence that she ever discriminated against any students in her classes.

Making matters worse, the AAUP, which has opened an inquiry into the situation, reports that Muhlenberg College summarily suspended Finkelstein and then fired her without a hearing. If the institution had an independent basis for firing Finkelstein, it must provide the evidence and give her a fair opportunity to respond. Regardless of how one feels about Finkelstein’s views, there is no academic freedom when faculty can be suspended and dismissed without due process.

While Finkelstein’s termination shows that progressive faculty can find their academic freedom violated, the Amy Wax case demonstrates that conservative scholars cannot consistently rely on academic freedom either. 

Penn justified its decision to sanction Wax with the assertion that she had created an “unequal learning environment” when she made “sweeping, blithe, and derogatory generalizations” about various minority groups, repeatedly made disrespectful statements about those groups, and when she allegedly repeatedly breached the “confidentiality of student grades.” 

In several media interviews Professor Wax made a series of racially-motivated public policy arguments that would undoubtedly be protected from government censorship. For example, she argued that America would be “better off with fewer Asians and less Asian immigration.” In another interview she argued, "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."  

As offensive as many may find those views, free expression and academic freedom cannot only protect the inoffensive. Academic freedom protects faculty who flag potential performance issues in the student body—even if their claims ultimately prove false—and Penn produced no evidence that Wax actually disclosed any particular students’ grades.

When they function properly, universities serve as the home and sponsor of social critics. This is true even when those critics question how the university itself functions or allege that groups of students are underperforming. Over time, a critic’s arguments may prove foolish. By its very nature, the activity of these critics may be upsetting. But universities protect the right of faculty to make offensive arguments because we cannot test our understanding of the world without the power to offend. Academic freedom is designed to protect professors from external pressures from those in authority, including those from the university itself. 

Joe Gow’s termination from his tenured position at the University of Wisconsin at LaCrosse, wasn’t motivated by the usual political biases, but it raises similar free expression concerns. The Regents voted to fire Professor Gow from his tenured faculty position having concluded that his online pornographic/vegan cooking videos were “disgusting,” “abhorrent,” and caused “significant reputational harm” to the University.

But even if the vegan recipes were distasteful, that would hardly be grounds to fire a tenured faculty member. And under First Amendment jurisprudence, most pornography—excluding child pornography which was not at issue here—is a protected form of expression. 

As my former colleagues at FIRE succinctly explained, “Academic freedom generally protects faculty from punishment for what they do or say off the clock. The same law that shields faculty from getting fired or punished for their political opinions or associations also protects their right to create porn.”

Removing Gow from his role as Chancellor did not violate his academic freedom because Chancellors—unlike faculty—routinely speak on behalf of their institutions. However, institutions cannot punish faculty for protected expressions—especially those made off the clock— to protect themselves from reputational harm. 

When viewed together, the sanctions against Finkelstein, Wax, and Gow underscore the need for all institutional leaders—regardless of their politics—to reaffirm our national commitment to academic freedom. When schools punish faculty for “wrong-think,” they cease functioning as knowledge-generators and instead become status-quo reinforcers. Even the act of dealing with an offensive professor—through argument and discussion—can turn out to be educational and productive, whereas using power to shut down arguments teaches entirely the wrong lesson.

If we don’t wish to “imperil the future of our Nation,” we must recommit to upholding every scholar’s academic freedom. After all, what good is academic freedom if it only applies to faculty who don’t rock the boat?