On October 2, five days before Hamas slaughtered 1,400 Israelis in cold blood, the University of Pennsylvania issued a confidential memo to trustees about the school's commitment to free speech.
Penn was facing blowback over the Palestine Writes festival, an event sponsored by several university departments that brought a number of anti-Semites to campus, including former Pink Floyd frontman Roger Waters, who has referred to Jews as "kikes," worn Nazi uniforms on stage, and emblazoned inflatable pigs with Jewish stars.
The memo, obtained by the Washington Free Beacon, came from university president Liz Magill and board of trustees chairman Scott Bok. It explained why the festival had been allowed to take place. "Penn does not regulate the content of speech or symbolic behavior," Magill and Bok wrote, including speech "incompatible" with the school's values. Noting that Magill had condemned Waters in a public letter to the Anti-Defamation League, the memo added that faculty members were free to invite speakers with "hateful views," provided they do not pose "an imminent threat of harm."
Now, as donors revolt over the school's equivocal response to Hamas's rampage, Penn's pronouncements about free speech are likely to complicate its approach to a separate controversy—or at least to highlight the hypocrisy of the school's administrators.
As Penn officials have stood by arguing they are helpless to police anti-Semitic speech on campus, they have also been trying to revoke tenure from a controversial law professor, alleging that her classroom and extramural utterances amount to discriminatory conduct that has "harmed" students.
Penn announced in January of 2022 that it would seek to sanction Amy Wax after she said that the United States would be "better off with fewer Asians." She has since been locked in bureaucratic combat with the school over a litany of other statements that Penn claims "undermines" its "core mission": attracting a "diverse student body to an inclusive educational environment."
Wax's offenses include arguing that racial groups differ in average IQ, assigning conservative thinkers such as Enoch Powell, and inviting Jared Taylor, an advocate of white identity politics, to speak to her class on conservative thought.
The case, which is slowly working its way through multiple committees, has alarmed advocates of academic freedom, who say that Wax's speech—like Waters's—falls within the bounds of protected expression and should not be subject to university reprisals. With Penn suddenly singing a different tune about its power to police offensive speech, the embattled professor is seeking to use the fallout from the Palestine Writes festival to her advantage, arguing that the positions taken in the confidential memo should shield her from discipline.
"The [memo] makes clear that even if Jews are 'harmed' by the speech of radical left Palestinian supporters appearing at the [Palestine Writes] Festival, those organizing the [Palestine Writes] Festival and inviting Jew-hating Palestinian nationalists will not be punished because Penn permits and protects the expression of all viewpoints, even those that are contrary to Penn's 'institutional values,'" Wax's lawyers wrote in a letter to university officials. "But if a strongly conservative and tenured professor invites Jared Taylor, assigns Charles Murray and Enoch Powell, and takes to social media to tell very hard-to-hear truths about group differences, she is not protected. Rather, she is sanctioned."
The letter, sent two days after the Hamas attacks, argues that the "glaringly obvious" double standard proves that Wax was the "victim of selective prosecution" and should not be punished in any way.
A spokesman for the University of Pennsylvania, Ron Ozio, declined to comment.
The confidential memo from early October explicitly rejects bans on "hate speech"—a term Penn used in its formal complaint against Wax—echoing arguments she herself has made in the adjudication process. It notes that hate speech is "complex to define" and describes how, following high-profile complaints of racial harassment, Penn did away with an anti-hate-speech policy in 1994.
"Penn concluded in the mid-1990s, based on hard experience, that defining and policing robust debate, even with respect to the most disturbing issues, is unwise," the memo reads. "This understanding of Penn's approach, while extremely challenging in cases such as the one at-hand, is consistent with the First Amendment, and the policies of our peer private institutions."
Canceling the Palestine Writes festival, the memo added, would have been "unprecedented" and risked "long-term reputational consequences."
As those consequences materialize anyway, the school has responded by doubling down on the free speech nostrums, giving Wax more ammo to argue she's been treated unfairly. Among the bodies adjudicating her case is Penn's faculty senate, which last week released a statement defending academic freedom from "outside" pressure.
"We write to affirm our commitment to freedom of thought, inquiry, and speech as foundational values of our University," the statement said. "Academic freedom is an essential component of a world-class university and is not a commodity that can be bought or sold by those who seek to use their pocketbooks to shape our mission."
That line appeared to be a reference to the donors who have pledged to stop supporting Penn over its handling of anti-Semitism. Billionaires Marc Rowan and Cliff Asness, as well as former U.S. ambassador Jon Huntsman, are just some of the luminaries to close their checkbooks since October 7.
It is not clear whether the faculty senate will apply its stentorian defense of free speech to Wax, who spent the past year feuding with the body over what she says is a rigged adjudication process. And Magill, Penn's embattled president, has in recent days taken a more muddled line on free expression, writing that "hateful speech has no place at Penn." That statement, which came after the donor revolt began, seemed designed to stem the bleeding from the university's coffers and quell calls for her resignation.
But while some donors have attacked Penn's decision to host September's Palestine Writes festival, most have not called for anti-Semitic speakers to be canceled. The problem, they say, is that the school failed to condemn those speakers until it was pressured to do so, using free speech as an excuse for equivocation.
"The Administration has shown no leadership, moral courage or an ability to distinguish between what is clearly right and clearly wrong," Jonathon Jacobson, who founded the investment firm Highsage Ventures, told Magill in an email. "Hiding behind free speech, which I am a huge advocate of, as an excuse for your fecklessness is laughable."
Without referring to Wax by name, other donors have attacked the double standard her case seems to illustrate.
"I'm 100% for free speech," Asness told Penn in a letter, "but not asymmetrical free speech where some have it and some don't. Imagine Penn's action if that event was as anti-anyone else other than Jews!? Hiding behind 'free speech' when it is a right only embraced for antisemites and other fellow travelers is not ok."