The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE, from Eugene Volokh: For those who want to review it for themselves, here's an 11-page PDF of Larry Alexander's article.]
Being a conservative can make it a little harder to get one's articles published in a traditional law review. And if one is writing about race or sex, it can be quite a bit harder. (I don't even try; I go straight for the specialty law reviews that were founded in part for the purpose of ensuring that articles by conservative scholars get published.)
I was therefore pleased to learn that my colleague Larry Alexander—one of the University of San Diego's Warren Distinguished Professors of Law—had been invited to write for the Emory Law Journal and that Larry had chosen to write on a race-related theme.
But it was not to be. After offering to publish Larry's essay (which was for a Festschrift for Professor Michael Perry) and then trying to edit away the meat of his argument, the ELJ has now withdrawn its acceptance. Editor-in-Chief Danielle Kerker sent an ultimatum to Larry: Either "greatly revise" the essay or the ELJ will have to "withdraw our publication offer." Larry understood how destructive to academic values it would be to cower under such pressure. He declined to revise the article. Good for him.
Kerker wrote that the ELJ Executive Board had "unanimously stated they do not feel comfortable publishing this piece as written." "We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive." "Additionally," she wrote, "there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term 'blacks' and 'the blacks' . . .) . . . ."
(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.
(Why not? One reason is that all laws have a disparate impact on some racial or ethnic group. If your theory of the Constitution renders all laws unconstitutional, you need to re-think. There are a lot of racial and ethnic groups out there. They differ in many ways—culture, heredity, religion, geography, history and just dumb luck. There is no need to jump to the conclusion that discrimination underlies every disparate impact.)
I suspect the real beef the ELJ Executive Board has with the essay is that Larry explicitly stated that racism isn't the problem today. Instead, he pointed to "the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty." This is just mainstream conservatism: Rearing children in one-parent families is not ideal, no matter what your race or ethnicity. It can't always be helped, but all too often it's the result of irresponsibility. At 69.4%, the out-of-wedlock birth rate for African Americans is particularly and tragically high.
Here's the good news for Larry's essay: This opera isn't over. Two law professors (one conservative and one liberal) have withdrawn their essays from the ELJ in protest over its treatment of Larry. Two more professors, both of whom I believe to be left of center, have said that they will publish only if they can include a blurb in front of their essays that protests the decision not to publish Larry. They do not necessarily agree with everything in Larry's essay. But standing up for him doesn't require agreement.
The ELJ has declined to comment.