There is a major controversy brewing over free speech and censorship at Emory Law Journal this month after the student editors refused to publish an essay by San Diego’s Warren Distinguished Professor of Law Larry Alexander. The publication was a Festschrift (or a publication honoring the work) of Emory Professor Michael Perry. (For full disclosure, Perry was my professor at Northwestern University and I edited a prior article by him on the law review. I have also been published by Emory Law Journal). Alexander was solicited for the publication but the editors later demanded that he make extensive deletions (including an entire section) in his essay on systemic racism because they found his “words hurtful and unnecessarily divisive.” He refused and they removed his essay from the issue. In response, two professors withdrew their essays in protest.
Alexander and Perry have known each other for decades. According to Alexander, that relationship began when Perry was a professor at Ohio State and invited him to contribute to a symposium in the 1981 volume of the Ohio State Law Journal. While the two have sharply differing views, they have maintained that relationship and Alexander’s inclusion in the Emory publication not only added someone with a long history with Perry but also intellectual diversity as a conservative scholar.
Given their long history, Alexander’s participation also offered a different focus on Perry’s long and distinguished career. Rather than focus on his better known writings on human rights and more recent constitutional theories, Alexander addressed his earlier work on equal protection and his disparate racial impact (DRI) theory. That was an area where the two academics had had spirited but respectful disagreement earlier in their careers.
The Alexander essay (which is available below) returns to the earlier debate of the two academics over Perry’s views on DRI and “systemic racism.” Alexander lays out the foundation of Perry’s theories in the first two sections of the essay. In the third section, he offers an alternative view and questions the basis for the “systemic racism” assumptions that underlie Perry’s early work. He agrees with aspects of the work while raising doubts over how such claims are applied to support reforms like reparations:
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.
Alexander suggests that Perry’s theories are “vague” in their application and that Perry himself has insisted that “his DRI test does not call for allocating scarce resources to blacks.” The essay maintains that the work shows “the virtues of being flexible and contextually limited” so that they do not have to be justified under the strict scrutiny of prevailing tests. However, Alexander holds that there remains a central flaw in the level of generality applied to the problems of race in America:
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.
That lays the groundwork for Section III, which drew much of the criticism from the student editors. Alexander asks how the DRI theory applies to concrete solutions and whether these alleged generalities break down when presented in the “real world.”
Alexander again recognizes that “[t]here 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. ” However, he attacks the vague reference to “systems” of racism without looking at how specific systems caused or contributed to racism. He also criticizes the use of DRI theory to support such responses to systemic racism as reparations.
The article is hard hitting and controversial. It is also today virtually unheard of for such views to appear in legal academic journals. It is very difficult for conservatives or libertarians to be published today. Indeed, the number of such law faculty members in the country is remarkably low. That number has continued to fall during my three decades as a law professor. I have seen most top faculties shed all but a couple conservatives in what is now an academic echo chamber. This trend is discussed in my forthcoming law review article, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy (forthcoming). We have also discussed the rising generation of censors on our student governments and journals.
The response of the Emory Law Journal editors amplifies those concerns. The editors wrote to Alexander that he had to entirely cut the third section of his work and substantially alter other parts as a condition for publication.
Editor-in-chief Danielle Kerker wrote to Alexander the following:
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.
Censorship or Editorial Privilege?
The controversy raises an obvious question over the line between editorial privilege and outright censorship.
I agree with the editors that there are portions of this work that Professor Alexander should have reconsidered and rewritten. There are lines that I found particularly objectionable. For example, Alexander writes “[a]nd even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all.”
I also strongly disagree with statements like “[a]lthough racism could be a problem for blacks today, the reality is, thankfully, is that it isn’t.” There is also this line: “Government cannot magically put dissolved black families back together, or instill love of education and an aversion to criminality in black children.”
Editors have a duty to maintain the quality of their journal. However, this is largely confined to the support for theories as opposed to the “harm” of the theories.
I have concerns over some of the specific objections of the editors. Professor Alexander’s use of “blacks” as a group is not unique in academic work. Moreover, the work questions the ability to treat the black community as a monolithic whole. My concern in this regard is to the consistently of such objections and whether they are based on the underlying viewpoint rather than the use of the term.
My concerns with this action are not due to any agreement with the underlying views of Professor Alexander. I have defended extremist views on academic freedom grounds like those of University of Rhode Island professor Erik Loomis, who has defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. (Loomis also writes for the site “Lawyers, Guns, and Money.”) I have defended faculty who have made similarly disturbing comments “detonating white people,” denouncing police, calling for Republicans to suffer, strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements.
We have previously discussed how there appears to be a double standard in how racially charged statements are treated in the media and academia. For example, Elie Mystal, who writes for Above The Law and is The Nation’s justice correspondent has lashed out at “white society” and how he strives to maintain a “whiteness-free” life. On MSNBC, Mystal declared, without any contradiction from the host, that “You don’t communicate to [Trump supporters], you beat them. You do not negotiate with these people, you destroy them.” Mystal was celebrated for his declaration: “I have no intention of waiting around for them to try to kill me before I demand protection from their ‘free speech.’” Mystal speaks regularly at universities and will be speaking at the AALS convention this month to law professors.
While refusing to publish Professor Alexander in part due to his use of the “objectifying term ‘blacks,'” Emory Law Journal just published the article by Professor Phillip Lee entitled “Rejecting Honorary Whiteness: Asian Americans and the Attack on Race-Conscious Admissions.” Lee argues that Asians should embrace affirmative action favoring black applicants and reject “the invitation to honorary whiteness.” He argues that “color-blind” solutions are merely an effort “to preserve whiteness as an access card to education, which will only be granted to groups that white decision-makers deem worthy – in the most recent instance, certain high-scoring Asian Americans.”
Lee makes sweeping generalities based on “whites” and their privilege. He insists that color-blind rules are merely “enabling white people to retain their race-based privilege while blaming problematic minorities for their own lack of progress.” I found the article interesting and, while I disagree with aspects of his work, I would also oppose any effort to force Professor Lee to delete sections or viewpoints in this article. The point is only that what constitutes “objectifying” can change with one’s agreement or disagreement of the underlying viewpoint of an author.
Likewise, Emory editors objected to Alexander saying that racism is not a problem today. As noted, I disagree with this view. However, I am not sure how the editors expect him to add citation to his own viewpoint. Would they demand a citation from an academic who wrote “Racism is a problem today”?
Finally, the editors object that Alexander’s view on “racism is not strongly connected to your commentary on Professor Perry’s work.” However, the first two sections lay the foundation for the discussion in the third section. He is addressing Perry’s work on DRI theory and offering an alternative view on such racial impacts and the “systemic” causes for racism. I have read dozens of such symposiums on the work of authors. They are meant to be academic contributions, not just recitations or derivative work based on celebrated author’s work. Alexander discusses Perry’s work and then offers his own alternative to its underlying theory and its implications.
Professor Alexander refused to make any changes to his work. He wrote to the editors:
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.
The editors then withdrew the offer and two other professors withdrew their articles in protest to what they viewed as content-based censorship.
As noted above, I agree with some of the criticism of the piece but I disagree with the position of the editors. There has been a long line of law review publications that make controversial and objectifying statements about whites and conservatives. I still value the diversity that such articles represent on our campuses. The best solution would have been to allow a response to Professor Alexander’s views. Ideally, Professor Perry could respond. The objections to the Alexander piece is not really his underlying support but his underlying views.
Ideally, this conflict should have been resolved with more work on both sides. I do believe that this essay would have been greatly improved with some rewriting or further explanation of these points. However, editors have an equal responsibility in maintaining a diversity of viewpoints and in recognizing that some “editing” demands can reflect bias or viewpoint discrimination.