Emory Law Journal Refuses To Publish Scholarly Article Challenging “Systemic Racism”

Emory Law Journal Refuses To Publish Scholarly Article Challenging “Systemic Racism”

That the United States suffers from “systemic racism” must not be questioned on college and university campuses. It is near religious dogma related to Critical Race Theory.

Yet many people are questioning it, including me:

Do you believe systemic racism is present in America? Why or why not?

I don’t believe that America is systemically racist in the way that term is used by so-called “anti-racist” activists. Our system and laws stand against racism, and that is embedded at almost every level of government and increasingly the rest of society. The goal should be to help this systemic anti-discrimination live up to its promise, not to tear down the system itself or engage in our own retaliatory discrimination.

Maybe differences in outcomes are not necessarily the result of systemic racism, but of other factors. Prof. Wilfred Reilly addressed this issue at our December 2020 event on Critical Race Theory:

Glenn Loury, Professor at Brown University, wrote an amazing column at The Washington Examiner, that is a must read, Unspeakable truths about racial inequality in America. Read the whole thing, here’s an excerpt:

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.

But we should all want to stay in touch with reality. Common sense and much evidence suggest that, on the whole, people are not being arrested, convicted, and sentenced because of their race. Those in prison are, in the main, those who have broken the law — who have hurt others or stolen things or otherwise violated the basic behavioral norms which make civil society possible. Seeing prisons as a racist conspiracy to confine black people is an absurd proposition….

Nor does anybody actually believe that 70% of African American babies being born to a woman without a husband is (1) a good thing or (2) due to anti-black racism. People say this, but they don’t believe it. They are bluffing — daring you to observe that the 21st-century failures of African Americans to take full advantage of the opportunities created by the 20th century’s revolution of civil rights are palpable and damning. These failures are being denied at every turn, and these denials are sustained by a threat to “cancel” dissenters for being “racists.” This position is simply not tenable. The end of Jim Crow segregation and the advent of the era of equal rights was transformative for blacks. And now, a half-century down the line, we still have these disparities. This is a shameful blight on our society, I agree. But the plain fact of the matter is that some considerable responsibility for this sorry state of affairs lies with black people ourselves. Dare we Americans acknowledge this?

Prof. Loury focused on being “cancelled” for contesting systemic racism, and that just happened to U. San Diego Law Professor Lawrence Alexander. He wasn’t fired, but he did have a scholarly article rejected by the Emory Law Journal precisely because he questioned systemic racism. Prof. Alexander’s colleague, Prof. Gail Heriot, wrote at Instapundit and Reason Magazine about what happened.

Here’s the summary from Prof. Heriot’s Reason 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.

I have reviewed some of the email communications, and can confirm Prof. Heriot’s account. Here’s the key portion of one of the emails:

Hi Professor Alexander,

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.

To which Prof. Alexander responded:

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.

Prof. Heriot also writes at Reason that the ELJ complaint about the terms “blacks” and “the blacks” does not hold up, and:

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.” ….

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.

I have confirmed that at least two professors withdrew their articles in protest. One of the professors, Steven Smith from U. San Diego Law School, wrote to ELJ:

Dear ELJ editors:

I understand that you have declined to publish the invited festschrift contribution of my friend and colleague Larry Alexander because of disagreements you have with some of its contents and modes of expression. I’ve read Larry’s article, and I certainly understand that there is much in the article that some people will disagree with, as is their right. I myself would have questions or objections to parts of the article. I also believe, however, that especially in these contentious times, a commitment to free speech is especially vital; conversely, the kind of censorship you are practicing is especially objectionable and unfortunate. I don’t want to be part of such a project. I therefore regretfully choose to withdraw my own contribution to the issue as well.

Best,
Steve Smith

I emailed the ELJ Editor-in-Chief and Executive Articles Editor, both of whom were on the email exchanges, for comment. As of this writing, no response has been received.

The “banned” article is not incendiary. It takes the arguments of Prof. Michael Perry of Emory Law School and addresses them over 10 pages of text. It was hard to find the “controversial” portions to excerpt, so keep in mind the excerpts below are not the entirety.

Michael is surely correct about the disadvantages blacks have suffered at the hands of government. Slavery, Jim Crow, and discrimination are facts about the past. And they undoubtedly have left indelible traces in the black community today–-although, as I shall discuss below, their effects on the individuals who make up today’s black community is a more complicated matter.

Is Michael’s DRI test a form of affirmative action, a mild form of reparations for past unjust treatment? He denies that it is. He points out his DRI test does not call for allocating scarce resources to blacks. And poor whites will benefit from the absence of laws disadvantaging poor blacks. They will not benefit from preferential treatment of blacks under affirmative action.

* * *

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. And finally, it depends on a definition of race, and of blacks in particular, that it does not give us. Because humans are one interbreeding species, any definition of races will be arbitrary, and mating across such arbitrary lines will create the need for new arbitrary lines.

Perhaps the weakest part of Michael’s case for DRI theory is his account of the etiology of the handicaps he attributes to the blacks….

* * *

Third, Michael’s causal claims are shaky. For example, after centuries of slavery followed by years of racially discriminatory laws, the black family in the early 1960s was relatively intact. Black marriage rates were about the same as those of whites. The dissolution of the black family really begins in the mid-1960s with enactment of the so-called War on Poverty. It is less a product of past injustice and more the unintended consequence of societal good intentions. Moreover, parallel trends have occurred among whites and Hispanics. It is well documented that family dissolution correlates with poor educational outcomes. And poor educational outcomes are also correlated with a lack of emphasis on education by parents and by a disdain for educational achievement among peers. Putting aside the politically incorrect possibility that heredity might also play a role, poor educational achievement’s connection to the past evils of slavery and Jim Crow is questionable at best and most likely untrue.

So, given that non-job-related tests for public employment are a bad thing, they only fail constitutionally under Michael’s DRI theory if blacks fail them disproportionally, even if they would have passed them disproportionately in the absence of their putative handicaps. Moreover, those handicaps, if they exist, are most likely not the result of slavery and Jim Crow. Nor are those handicaps unique to blacks.

There are similar weaknesses in the application of DRI theory to school assignments and to low-income housing sitings. In school districts, however rare, where blacks are relatively affluent and whites are poor, and most blacks go to one school and most whites go to another school, DRI theory would demand that those student assignments be invalidated and, if possible, blacks and whites be assigned to schools in numbers proportionate to their percentage in the district. It is hard to see, however, why the “racial isolation” of the relatively affluent blacks is bad for them, or that the blacks would benefit from having a proportionate number of whites in their schools.

Moreover, even if we drop the stipulation that the blacks are more affluent than the whites, is it true that “racial isolation” is uniquely harmful to blacks? We don’t consider the racial isolation of whites or of Asians to be harmful to them educationally. And there are plenty of examples of racially isolated black schools whose students performed at a high level…..

* * *

I expect a rebuttal from those claiming systemic racism to go as follows: Had there not been slavery and Jim Crow, blacks would have been proportionately represented in all fields, and not well represented only in a few, such as athletics. Slavery and Jim Crow bred the pathologies that afflict blacks and lower their performances in all areas other than athletics and a few others. In that sense, the absence of across-the-board proportional racial representation is “racist” in that it reflects the legacy of slavery and Jim Crow.

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.

Recognizing this problem, many have called instead for paying reparations to current blacks based on the premise that slavery and Jim Crow have injured them and that no other remedy for the harms caused today by these past injustices is feasible. But the prospect of paying current blacks as reparations for these past injustices has not only doubtful political prospects. As a conceptual matter, it is thoroughly flawed.

* * *

Michael Perry has had a long and very distinguished career, one more than worthy of this celebratory symposium. I suspect his major intellectual legacy will be his writings on international human rights and their role in U.S. constitutional law and Supreme Court decision making. Although I have some disagreements with what Michael has written on these topics, my focus in this article has been elsewhere, on things Michael wrote many years ago about race and equal protection. What he wrote then resonates with demands one hears today for racially proportionate policy outcomes. Although Michael’s arguments were much more measured and limited than those today to which I am referring, if his arguments should be rejected, then today’s more extreme demands surely must be. We will continue to live in exceedingly fraught times unless we return to focusing on how individuals are faring rather than the groups to which they are arbitrarily said to belong.

Reading Prof. Alexander’s writing, it’s clear there isn’t a lot of daylight in the approach he takes to “systemic racism” and that taken by Profs. Reilly and Loury. An increasing number of people are questioning the dogma of systemic racism. But questioning dogma carries the risk of cancellation.

So enjoy the full article. But don’t tell anyone you read it, or you too could be cancelled.

UPDATE (1/6/2022 9:30 p.m.)

I just received the following statement by email from Susan Clark, Associate Dean for Marketing & Communication at Emory Law School:

I am writing in reference to your earlier inquiry to the Emory Law Journal to provide you with the following statement from Emory Law.

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.

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