Editor’s Note: After this article was published, Emory University and others responded to the Emory Law Journal controversy in general and to this article in particular. To read Louis Bonham’s follow-up response to these responses, click here.
Another year, another incident of fundamental scholarship principles being sacrificed in favor of “feelings” and the woke agenda—and more worthy nominees for the next Minding the Campus Trofim Lysenko Award for the Suppression of Academic Speech.
Our latest episode comes courtesy of the Emory Law Journal (ELJ) editorial board, helmed by current Editor-in-Chief Danielle Kerker Goldstein and assisted by Executive Articles Editor Shawn Ren. The ELJ had invited University of San Diego Law School professor Lawrence Alexander to contribute an article to a Festschrift in honor of longtime Emory Law School professor and constitutional law scholar Michael Perry.
However, after Professor Alexander declined to “greatly revise” the bulk of his article (which, inter alia, challenged the concept of “systemic racism”), the ELJ board took the admittedly “extreme action” of withdrawing its publication offer, finding Professor Alexander’s writing to be “hurtful and unnecessarily divisive.” This censorship has led two of the other contributors to the Festschrift to withdraw their articles in protest, and two others to demand that their contributions be published with an introductory blurb protesting the ELJ’s shameful treatment of Professor Alexander.
Thus, what was supposed to be an honor to Professor Perry and a contribution to constitutional law scholarship has now degenerated into an episode of cancel culture writ large, and a huge black eye for the ELJ, Emory University School of Law, and, quite possibly, the careers of the students involved.
The World of Law Journals
First, a bit of background about law journals. Unlike other scholarly publications, most law reviews and law journals are run by law students, not academics or professionals. This means that, except in rare circumstances, law review articles are not peer reviewed—law review members will edit and “cite check” an article selected for publication to make sure that the references given are accurate and support the propositions for which they are cited, but the articles are not reviewed by experts or scholarly peers. That law students—most of whom have no advanced degrees or material scholarly expertise, and none of whom are even rookie lawyers yet—are the ones deciding what scholarly articles are worthy to publish and how they should be edited has long been a source of controversy and consternation.
Traditionally, this was mitigated somewhat by the severely meritocratic selection process for flagship law reviews. Most members were invited based on first-year grades (e.g., the top 5% of first-year students invited as “grade-on” members), with a few additional spots awarded to the winners of a writing competition (“write-on” members) that was judged blindly by a panel of law review members. Members spend their second year of law school doing much of the cite-checking and other scutwork for the journal, and some work on their own articles (which might be chosen for publication in the journal as a Student Note). At the end of their second year, a few of the members would be chosen (by election at some journals; by the outgoing board at others) to be the editorial board for the next year. This meritocratic model meant that the flagship law reviews were typically staffed by the some of the law school’s very top students.
However, with many law schools abandoning strict grade curves (or even abandoning letter grades and class rank altogether), membership on a law school’s flagship journal editorial board is no longer strictly meritocratic. Indeed, many premier journals have openly embraced “equity” over merit, with identity-group quotas for membership and even editorial board positions up for grabs. Perhaps not surprisingly, some flagship journals like the ELJ have now discarded their traditional apolitical stances to instead become openly partisan organizations (e.g., “ELJ is committed to being an anti-racist organization, both in our ranks and in our scholarship”).
Alexander’s Contribution to the Perry Festschrift
Last year, the ELJ announced a Festschrift in honor of Emory Law School professor Michael Perry and invited a number of scholars to contribute articles to it. One such invited scholar was Professor Lawrence Alexander, a constitutional law scholar and longtime friend of Professor Perry who has appeared with him at various constitutional law symposia for more than forty years.
Professor Alexander’s article is entitled “Michael Perry and Disproportionate Racial Impact.” In some of his early work, Professor Perry disagreed with the Supreme Court’s 1976 Washington v. Davis opinion, which held that just because an employment criterion can be shown to have a disproportionate impact on racial minorities (e.g., a written examination that certain minority groups fail more than whites), such is not sufficient to make out an equal protection violation. Instead, a plaintiff must show that a discriminatory purpose was behind the government’s choice of the criterion that produces the disparate impact. Professor Alexander’s thesis is:
I intend to look at Michael’s early work, and in particular, his work on equal protection. I think some of what Michael wrote on this topic was misguided. But I focus on it, not to find a bone to pick somewhere in Michael’s impressive body of work, but because his error in that early work has an analogue in today’s political discourse, which makes that error of many years past of contemporary importance.
So far, so good. Indeed, a fellow scholar’s retrospective examination of the honoree’s prior work and application to current events is exactly what you might expect in a Festschrift contribution.
Part I of the article examines the Supreme Court’s view of disparate racial impact and details Professor Perry’s disagreement with it and his proposed alternative. Part II is Professor’s Alexander’s critique of Professor Perry’s views and proposal, including why he finds them erroneous. Part III applies those principles to today’s racial politics, especially to the concept of “systemic racism” and proposed solutions such as reparations.
As you will see from reading Professor Alexander’s article (which I encourage you to do—it is a short article that is very well written), his language is the measured prose of the law professor and scholar. However, he does not mince words or shy away from pointing out facts that are inconvenient for adherents of the current cult of wokeism. Here are several examples:
I believe, however, that Michael’s DRI theory has a more basic problem: It treats blacks as a monolith. It does not distinguish between blacks who descended from American slaves, and blacks who emigrated from the West Indies or from Africa. It does not distinguish between blacks who face economic and educational handicaps and blacks who do not. And among blacks who do face such handicaps, it does not distinguish among blacks whose difficulties stem from past mistreatment and blacks whose difficulties stem from their own choices and behaviors. With respect to the latter, it seems to assume that such choices and behaviors have been caused by past injustices.
. . .
My interest in Michael’s 1977 article on DRI lies, as I said at the outset, on its relevance to contemporary racial politics. One hears a lot these days about so-called “systemic racism.” That term is usually not defined, nor are the “systems” that it refers to identified.
. . .
What I believe lies at the heart of the claim of “systemic racism” is not an indictment of this or that “system” but is rather the claim that unless blacks are proportionately represented in all sectors of American life, we can presume racism is the cause. The problem with this claim is that it is manifestly false. There are many causes for why races, however defined, are not proportionately represented in all domains. Asians, for example, are “overrepresented” in science, medicine, and technology. This may be due to native intelligence, cultural preferences, educational diligence, or some combination of factors. The same things may explain the disproportionate number of Jews in the professions, or the disproportionate number of blacks in professional sports. There is nothing racist in the selection processes in any of these fields of endeavor.
. . .
There is no question that the dissolution of the black family, which has resulted in poor educational performance, poverty, and an increase in criminality, has made it impossible for blacks to achieve parity with groups in the upper echelons of the economy. As I pointed out earlier, however, there is reason to doubt that slavery and Jim Crow caused the current pathology of family dissolution. Nor is it clear what the remedy should be. Government cannot magically put dissolved black families back together, or instill love of education and an aversion to criminality in black children. Nor should we just overlook deficiencies in qualifications for positions. No patient wants an underqualified doctor; no client wants an underqualified lawyer; no bridge builder wants an underqualified engineer; and so on.
Reasonable minds can disagree with Professor Alexander’s arguments (he certainly is not afraid to have his views challenged and debated), but none of these arguments are novel or beyond the pale. Fifth Circuit Judge James Ho has pointed out the stark conflict between settled federal law and the “anti-racist” views of “equity” and disparate impact. A recent tour de force article by Brown University Professor Glenn Loury (“Unspeakable truths about racial inequality in America”) raised arguments similar to Professor Alexander’s in a much more pointed way. Indeed, because his article is a transcript of a speech he gave several months ago, Professor Loury accurately predicted the cancel culture mindset the ELJ Board would exhibit in response to such arguments:
The first unspeakable truth: Downplaying behavioral disparities by race is actually a “bluff”
Socially mediated behavioral issues lie at the root of today’s racial inequality problem. They are real and must be faced squarely if we are to grasp why racial disparities persist. This is a painful necessity. Activists on the Left of American politics claim that “white supremacy,” “implicit bias,” and old-fashioned “anti-black racism” are sufficient to account for black disadvantage. But this is a bluff that relies on “cancel culture” to be sustained. Those making such arguments are, in effect, daring you to disagree with them. They are threatening to “cancel” you if you do not accept their account: You must be a “racist,” you must believe something is intrinsically wrong with black people if you do not attribute pathological behavior among them to systemic injustice. You must think blacks are inferior, for how else could one explain the disparities? “Blaming the victim” is the offense they will convict you of — if you’re lucky.
I claim this is a dare, a debater’s trick. Because, at the end of the day, what are those folks saying when they declare that “mass incarceration” is “racism” — that the high number of blacks in jails is, self-evidently, a sign of racial antipathy? To respond, “No, it’s mainly a sign of anti-social behavior by criminals who happen to be black,” one risks being dismissed as a moral reprobate. This is so, even if the speaker is black. Just ask Justice Clarence Thomas. Nobody wants to be canceled.
(Credit where due: Cornell Law Professor William Jacobson and I independently realized that Professor Loury’s piece was quite germane to the analysis of ELJ’s cancellation of Professor Alexander, but his article quoting it beat mine to publication. Both Professor Jacobson’s and Professor Loury’s articles are excellent and worth reading in full.)
The ELJ Cancels Alexander’s Contribution
Exactly as Professor Loury prognosticated, uttering these “unspeakable truths” was just too much for the woke sensibilities of the ELJ board. First, Executive Articles Editor Ren requested large-scale changes to parts II and III, which Professor Alexander declined to make. His refusal prompted a shocking letter from Editor-in-Chief Kerker Goldstein, which in pertinent part provided:
Thank you for reading the memorandum and considering our edits. I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.
We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)). And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.
Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.
Unsurprisingly, Professor Alexander was not intimidated by this immature tantrum:
I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.
Reaction to the ELJ’s woke censorship has been swift and universally negative. Two of the other Festschrift contributors have pulled their pieces in protest, and two others are requiring a statement be published at the top of their pieces protesting the ELJ’s refusal to publish the Alexander article. That the Festschrift honoring Professor Perry will now be remembered not for his work or the scholarship written in his honor, but for the students on the ELJ board hijacking it for their own virtue-signaling exercise, is simply appalling.
As noted by professor and U.S. Civil Rights Commission member Gail Heriot, Mrs. Kerker Goldstein’s specific allegations against Professor Alexander are ridiculous, and appear contrived:
If the term “black” in reference to African Americans is “objectifying,” a lot more than just Larry’s essay will need to be canceled. As for “the blacks,” I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn’t using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The “the” was intended to make that clear.
The editors probably wish they could argue with Larry’s discussion of disparate impact in constitutional analysis. But, there, Larry was just being mainstream: He was agreeing with the Supreme Court in Washington v. Davis (1976) that a statute that was not intended to disadvantage a particular race or ethnicity isn’t rendered unconstitutional simply because it has a disparate impact on such a group.
Meanwhile, National Association of Scholars President Peter Wood’s reaction is scathing:
The unanimous decision by the editorial board of the ELJ to refuse publication of Professor Larry Alexander’s article is extraordinary. In the last few years, we have seen the rise of a new kind of censorship in higher education where articles or even books once accepted for publication are scrubbed because editorial boards have flinched in anticipation of or response to controversy. This happened, for example, with Professor Bruce Gilley’s article on colonialism in the journal Third World Quarterly, and it happened as well with Lawrence Mead’s article slated for the journal Society. So the demand to modify, remove, or delete part of an article is not unprecedented. But the precedents are shameful and have resulted in grave damage to the reputations of those journals.
That Mr. Ren and the members of the ELJ’s editorial board might be uncomfortable in reading forceful arguments against an idea they cherish—or possibly an idea they recognize cannot be challenged without the risk that others will object strenuously—is all the more reason why they should have upheld Professor Alexander’s intellectual freedom. The ideal of intellectual freedom is not to provide comfort for those whose ideas conform to prevailing opinion. It is, to the contrary, to create space for those who dissent from the status quo. In attempting to force Professor Alexander to remove this section of his essay, they have betrayed the foundational principle of their journal. Possibly by this betrayal they have purchased themselves some respite from accusations of racism or even from threats of violence. We have seen both in similar situations. But rather than courageously standing up against such animosity, they have made themselves into its megaphone.
Professor Heriot’s post holds out some hope that “this opera isn’t over.” Perhaps the grownups at Emory University will explain the facts of academic life and scholarship to the ELJ board, starting with Mrs. Kerker Goldstein and Mr. Ren, who now get to start their legal careers with the reputation of being the principal architects of this debacle. Indeed, if they are unable or unwilling to deal with views and concepts (especially ones based on well-settled law) that make them “uncomfortable” or that they find “hurtful” or “unnecessarily divisive” because they contradict the “woke” worldview of “systemic racism everywhere,” and instead find it appropriate to deplatform opposing views rather than consider and confront them, then I question whether Emory Law has taught them the skills necessary to be an effective attorney. But unlike Professor Heriot, I am much less sanguine that wiser heads at Emory will prevail, particularly given that the law school and its dean have steadfastly ignored this embarrassing betrayal of fundamental principles of scholarly discourse.
The silver lining in this episode is that, like MIT’s cancellation of Dorian Abbot, this controversy will likely result in Professor Alexander’s “canceled” message being heard and considered by far more people than if it had it been published in the ELJ.
Author’s Note (1/6/22): I requested comment from the Emory University press office, the Emory University School of Law communications officer, Emory University School of Law Dean Mary Anne Bobinski, Mrs. Kerker Goldstein, and Mr. Ren. None of them responded before the publication of this article. I also requested comment from Professor Michael Perry, who responded “no comment.”
Editor’s Note (1/7/22): After the original publication of this article, Emory University Associate Dean for Marketing & Communication Susan Clark provided Louis Bonham with an official statement on the ELJ controversy, which we republish here:
The student-run and edited Emory Law Journal has been working with a wide range of contributors on a Festschrift issue to honor the pathbreaking scholarly contributions of retiring Robert W. Woodruff Professor Michael Perry.
As is common practice for a Festschrift issue, authors were invited to contribute pieces for the issue and their submissions did not go through the Emory Law Journal’s standard article selection process. In a communication with one of the authors, the student executive board requested certain edits related to the piece’s topic, relevance, and scholarly merit. The board stated that the piece’s discussion related to systemic racism was “hurtful and unnecessarily divisive” and suggested specific changes to strengthen the work. The board expressed concern about the author’s repeated references to “blacks” or “the blacks” and noted the absence of citations that any law journal would require to support some of the author’s assertions. Moreover, the board emphasized a crucial concern that a portion of the piece was not strongly connected to commentary on Professor Perry’s work, the intended focus of the Festschrift issue.
The editorial board’s requested changes were not intended to censor the author, but rather to ask that the author address concerns regarding the degree to which the submission met the quality and sourcing standards of the Journal and properly focused on the impact of Professor Perry’s scholarship. The author declined to consider the edits and pulled the article from publication. The students carried out their responsibilities to ensure the high quality of the work published in the Journal in a professional manner.
The law school and the Emory Law Journal board continue to maintain a deep commitment to academic freedom and to fostering robust debate about important and sometimes controversial topics. We look forward to the publication of this special volume celebrating Professor Perry’s distinguished career, which will include articles by nearly a dozen globally renowned scholars, later this year.
Author’s Note (1/7/22): I have requested comment on Emory’s official statement from a number of people involved in this episode, which I will use in a response to the statement. Minding the Campus will publish my response as a separate article.