Professional sanctions are perfectly compatible with academic freedom

It was none other than the French thinker Montesquieu who noted that, in a commercial republic, social penalties for offensive behaviour are a feature, not a bug.

Montesquieu, who greatly influenced Alexander Hamilton and other American founders, admired the power of shaming. He thought that “commerce cures destructive prejudices”, and that a commercial society could inflict more effective punishments than the state for extremist, prejudicial and unethical behaviour. Such a society would encourage a “spirit of frugality, economy, moderation, work, wisdom, tranquility, order and rule”.

One need not agree that commercial society always results in such a utopia to recognise the wisdom of Montesquieu’s point: that social sanctioning mechanisms, including the labour market and the employment relationship, often serve to regulate behaviour. That wisdom is worth keeping in mind as American academia in general and the University of Pennsylvania in particular confront the case of Amy Wax.

Wax, the Robert Mundheim professor of law at Penn, has made numerous statements about Americans generally and Penn’s own students specifically that are widely considered racist. Her latest offering calls for clearly illegal and unconstitutional anti-Asian discrimination in immigration policy.

Penn Law School dean Theodore Ruger has called a meeting of the faculty senate to consider sanctions for this and an “aggregation” of other incidents. In response, the Academic Freedom Alliance (AFA), of which I am a proud member, has argued that Penn’s only “appropriate” response is to “publicly reaffirm the free speech rights of the members of its faculty”. In this case, I think the AFA is wrong. As a private institution and as an educational institution, Penn can both censure Wax and impose limited sanctions on her without in any way violating academic freedom.

Academic freedom protects what professors do. It doesn’t apply – although the First Amendment does – to other university staff. It defends a professor’s core office: their position as a teacher and scholar and their voting membership on a faculty body. It does entail that a person should not lose her professorial position because of public statements alone, but there are other ways to impose sanctions without violating principles of academic freedom. These include censuring, limiting the implicit power that a professor has, and removing the professor from non-essential positions.

The AFA statement neglects to acknowledge that Ruger has already sanctioned Wax once before, by removing her from teaching a required course for law students. And he was not wrong to do so; as I have previously argued, teaching a course that students are formally or informally required to take is not a right but a “rent”, a position of power conferred by expertise. Nor does academic freedom confer upon any professor the right to be a dean or the head of a lab or centre, for instance.

Other sanctions against Wax are also potentially appropriate. Whether Penn should revoke her named chair, for instance (while keeping her as professor of law), I do not know: that is a question for a faculty senate or committee to examine. But whether it can do so while maintaining a robust commitment to academic freedom I have no doubt.

That these sanctions might be employed by educational institutions is a virtue of our system, not a jeopardy. It was precisely in a republic’s system of education, Montesquieu thought, that moderation, even a “renunciation” of selfishness, should be taught.

There are other things to consider. First, as in any system, the level of censure and sanctions should be appropriate to the behaviour in question. A single tweet that crosses a line of ethical behaviour should not, in and of itself, justify penalties. And the AFA is right to insist that pedagogy that some people may find offensive (assigning a reading or a test that includes the N-word, or showing a certain movie in class, for instance) should never result in the removal of a teacher from a classroom.

Second, some speech acts so undermine professional behaviour that they are not protected by academic freedom. Were a professor to repeatedly call her students – be they Black, LGBTQ, Jewish, Native American or White – by an offensive epithet, to their face, then removal from office would potentially be defensible. When a Ferris State University professor recently insulted his students openly and repeatedly (engaging in a clear pattern of unprofessional behaviour), the university was plausibly within its rights to suspend him from teaching.

Third, while all societies sanction behaviour, many critics of “cancel culture” are right to argue that in the US, excessive shaming – especially instantaneous and herd-driven censure on social media – has led to a form of unhealthy puritanism in which many remarks are intentionally or unintentionally taken out of context. Our culture too often pathologises what were differences in judgement or honest mistakes.

Yet these are matters for public debate. In a healthy society, those who shame too much are themselves liable to be shamed. If a dean oversteps the bounds of reason and ethics in sanctioning or censuring a professor, she too can face removal without violating academic freedom.

Academic freedom is not full-fledged ethical licence. Neither social shaming nor private sanction are penalties of state, and it is entirely unpersuasive to argue that they, on their own, “chill” free expression. As Montesquieu wisely recognised, the operation of a commercial republic such as ours depends upon the appropriate deployment of shame.

Daniel Carpenter is Allie S. Freed professor of government at Harvard University.