Emory Law Journal refused to publish Alexander’s essay that the editors solicited to be part of 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).
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. That included Northwestern University law professor Andrew Koppelman, who published his account at the Chronicle of Higher Education, in article entitled “Scandalous Suppression at a Law Review.” While he supports theories of systemic racism, Koppelman condemned the actions of the editors.
Emory Law School released a public statement, insisting that:
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 recent article included the complete memo that Executive Articles Editor Shawn Ren sent Alexander. The editors state “we want to reiterate that our comments are merely suggestions and you should feel free to incorporate or dismiss these suggestions as you see fit.” Yet, they go on to say:
To start Part III, you mention that your “interest in Michael’s 1977 article on DRI lies . . . on its relevance to contemporary racial politics.” You then proceed to discuss (the lack of) systemic racism and critique retributions. However, without tying these discussions to equal protection and, particularly, the relevant work of Professor Perry, a reader might strain to find the connection between these topics. We suggest (1) explaining how exactly your criticism of systemic racism and retributions pertains to what Professor Perry wrote on equal protection, or, alternatively (2) deleting that section.
We also would like to note that as a prudential matter, the refutation of the presence of systemic racism might be a highly controversial viewpoint. We believe that re wording or removal of this refutation would help focus the discourse on the substance of your primary analysis.
Professor Alexander responded with this email:
From: Lawrence Alexander
Sent: Friday, December 3, 2021 5:31 PM
To: Ren, Shawn
Cc: Kerker, Danielle
Subject: [External] Re: ELJ Special Issue—Substantive Memorandum
I read your memorandum regarding my contribution to the Perry symposium. With respect to your first suggestion, you may add the following paragraph just before Part I:
In what follows, Part I will deal with disparate racial impact–the Supreme Court’s view of it, and Michael’s view of it. In Part II, I will assess the merits of Michael’s view. Finally, in Part III, I turn to disparate racial impact and today’s racial politics.
With respect to your other suggestions, I prefer leaving the text unchanged. And I’m aware that my view in Part II is controversial. That doesn’t render it incorrect.
Best,
Larry Alexander
So, the editors left the decision to Professor Alexander and he declined to remove Section III despite acknowledging that it would be “controversial.” The editors then responded with the previously discussed email withdrawing the publication offer. Editor-in-chief Danielle Kerker wrote to Alexander:
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.
Professor Alexander again refused:
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.
I previously discussed not just Alexander’s article and concerns over a double standard that is reinforced by other articles published by the journal. The exchanges support the view of Koppelman and others that the editors were withdrawing an offer due to their disagreement with Alexander’s viewpoint.
“Prudence” should not be the measure of whether to allow a publication. Many of the greatest legal publications were imprudent from a perspective of academic backlash or support. Indeed, feminist writers and critical legal studies writers were once widely condemned but legal journals published their work. Now, however, there appears an emerging orthodoxy from the left that is creating even greater barriers to academic exchanges.
The law school’s statement of support for the journal and its student editors is certainly understandable. However, there are real concerns raised by this controversy over the commitment to viewpoint diversity at one of the country’s premier legal publications.