> >You're the lawyer. But are you serious? Can a Journal published >with 501C3 status say it won't publish articles by people of color, >women? For some reason, I think not. I'm not saying that this >directly relates to the Kliman case but I merely put this to you >to suggest that what you wrote may not be completely accurate. >
An interesting question. Maybe you are right. It's not a violation of the First Amendment rights of people of color to be denied publication even by a tax exempt journal. Nor is there anything in the usual antidiscrimination laws that forbids such a rule. A government-published journal could not adopt such a rule and avoid Equal Protection problems, of course. The problem with a private journal is that there's usually no state action, required to activate ant constitutional protections. One might try an theory of the sort that animated the successful challenge to racially restictive housing covenants under Shelley v. Kraemer (1947), that such restrictions required court enforcement and thus state action. That is the point of mentioning 501(c)(3) status, I suppose. However, the courts have been unwilling to extend Shelley, because pushed its logical limit, it makes almost everyhing state action, and the courts don't want to extent constitutional protections to lots of private actions that might somehow implicate the government. There is a federal law, 42 USC 1981, forbidding discrimination in making contracts: you can't refuse to contract with someone because of race. You could argue that making a paper is an offer, which, if accepted by the journal could create a contract; actually, that strikes me as promising, as I think aloud. So probably a racist journal could be sued for refusing to accept papers by people of color on that basis. Maybe one could also attempt, with journals that are associated with educational institutions, to bring in the laws preventing discrimination in education, or laws preventing discrimination by entities that receive federal funds. As to the latter, the courts distinguish between receiving funds and receiving tax breaks. As to the former, maybe that would work if the journal was published directly by a university, more effectively if it was a public university. But many journals associated with universities have a firewall. The law journal of my law school, Ohio State, was (I believe) set up as a private corporation run by the managing board (of which I was a member as a 3L). I hasten to add that we had no such awful policy. Wasn't there a flap about Bob Jones University, which formerly banned interracial dating, a few years back? I think the most anyone could come up with was to argue that it shouldn't receive tax-exempt status, not that its having such status meant that one could sue to to prohibit racial discrimination. > >In the Kliman case, Kliman, the plantiff, survived a motion to dismiss. >If the law is what you assert, why didn't the Fed. judge just toss >the whole thing out when URPE made a motion to dismiss? I dunno. I didn't see the complaint and I wasn't privy to the judge's reasoning. The standard for a motion to dimiss is pretty low: it is not to be granted unless the plaintiff could not prove any set of facts whatsoever that would entitle him to relief. I will also add, that, although I work for a (very good) federal judge (at least through this August), some judges, even federal ones, make odd decisions. > > >More important, I do think it's time for all who think URPE is a >org. we like to see survive we need to encourage it to adopt porcedures >so that this never happens again. That is, if someone brings a suit, >the judge would dismiss it and allow URPE to seek damages. This clearly >did not happen here. I don't know anything about this law suit. I do think that legal action is not generally appropriate in this sort of case, partly for the reasons that you mention, and partly because it chills editorial freedom, which I think is very important. I am not commenting on the merits of this case, about which, as I say, I know nothing. jks > > > > >>I'm not familiar with the case, but I think that the grounds for > >>legal action seem very unclear. > >> > > > >Absolutely. A private journal has a a clear First Amendment right to not > >publish anything that it doesn't wants. Kliman, you, or me, have no legal > >right whatsoever to be published in RRPE or the National Review or The > >Nation or whereever. If a journal adopts a rule, No articles by Schwartz > >because we don't like his face, I just have to go elsewhere. Actually >this > >is true of publicly owned journals too, although you'd have to do a >little > >bit of work to get around the 1A. The cases are out there, I'm sure. jks > > > >_________________________________________________________________ > >Chat with friends online, try MSN Messenger: http://messenger.msn.com > > > > _________________________________________________________________ MSN Photos is the easiest way to share and print your photos: http://photos.msn.com/support/worldwide.aspx
