The Volokh Conspiracy

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Prof. Andrew Koppelman (Northwestern) on the Emory Law Journal Controversy


From his Chronicle of Higher Education article (registration required):

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as "hurtful and unnecessarily divisive," an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the journal rejected it. Two other contributors to the same issue of the journal withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: One of the authors who withdrew is on the left. Some have been asking, Who is that guy, and what was he thinking?

I'm that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is indifferent to the welfare of the people it purports to help. This isn't a left/right thing.

The law journal had invited papers for a symposium honoring Michael Perry, one of the most important living constitutional theorists. An invitation of this sort normally includes a commitment to publish if basic scholarly standards are met. One invitee was the University of San Diego professor Larry Alexander, whose piece engaged with Perry's work on racial discrimination. Alexander argued that the principal causes of Black poverty are not racism but the cultural factors that have produced family disintegration, which in turn have produced poor educational achievement and crime.

The Emory editors told Alexander that they would not publish his essay unless he deleted an entire section of his discussion. Their initial memo declared that "our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit." It noted that "as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint." But when it became clear that Alexander would stick to that thesis, the editors evidently changed their minds. The next email was an ultimatum. It conceded that "there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer." But, they said, his piece was "hurtful and unnecessarily divisive."

"Crucially," they declared, "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." (If you read the whole piece, you'll see that this is obviously false.) …

don't agree with Alexander's description of the world. I have fought with him in the past. (Jonathan Turley offers a good critique of his essay.) But it is a possible world, he offers evidence for it, and it is important to know whether he is right. The editors do not allege falsity or offer any evidence of scholarly dereliction. It's been claimed that he resisted editing, but the editors did not ask for his claims to be better supported. They demanded the deletion of the entire final third of the article….

The editors think that academic work ought not to describe what the scholar takes to be reality if revealing or calling attention to that reality is "hurtful" and "divisive." That notion, which is increasingly common, attacks the scholarly enterprise at its root….