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COVID law review paper promotes ‘ableism and eugenics,’ activists say, demanding retraction

‘Untenured professor of color’ accuses law students of intersectionality faux pas

Disability rights activists are pressuring a law school journal to retract a paper that they claim justifies “ableism and eugenics” in response to the COVID-19 pandemic.

Their effort has been rebuked, however, by a law professor who opposes the article’s argument but believes persuasion is a more effective way to counter it than public shaming.

The Yale Law Journal Forum accepted the paper, “Why Disability Law Permits Evidence-Based Triage in a Pandemic,” for its “forthcoming” 2020 issue. It was written by Govind Persad, assistant professor at the University of Denver’s Sturm College of Law and faculty scholar in bioethics at the Greenwall Foundation.

New York University’s Disability Allied Law Students Association started a petition against the “preprint research paper,” which has not been peer-reviewed, arguing to the journal editors that “not every contrary opinion furthers the discussion, legally or ethically.”

The petition says Persad’s paper “misrepresents the disability rights movement and weaponizes disability law to support a harmful argument rooted in ableism and eugenics.”

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Rebecca Guterman, co-chair for the NYU group, told The College Fix in an email that “179 individuals and organizations from across the country” signed the petition as of May 18.

Her group sent the petition to the journal on April 24 and did not receive a response, according to Guterman. They sent a followup email on May 17. The journal did not respond to emails and calls from The Fix asking for its comment on the petition and for the status of Persad’s paper.

In a Twitter thread responding to the pressure campaign, Persad (left) argued that “whether an article is published shouldn’t depend on its being okayed by those who disagree.”

As an “untenured professor of color,” he has not seen calls to take down any other papers on this topic, “which supports my suspicion that calls to revoke publication not only chill speech but inevitably replicate hierarchies,” Persad wrote. He did not respond to emails from The Fix asking if there has been any update on the petition or from the law journal.

He found support from an unexpected source: University of Michigan Law Prof. Samuel Bagenstos, who wrote in a Twitter thread that “I could not disagree more” with Persad’s argument but also disagrees with the retraction petition.

‘Mob review is the worst of all possible worlds’

Outside the world of law reviews, Persad is perhaps better known for a Washington Post op-ed he co-authored promoting “immunity licenses” as the “least restrictive alternative” to continuing lockdowns against the novel coronavirus.

It argues that expanding freedoms for those who can show proof of recovery from COVID-19 “could promote individual liberty and benefit society without invidious discrimination.”

The other op-ed author is Ezekiel Emanuel, chair of the University of Pennsylvania’s Department of Medical Ethics and Health Policy, brother to former Chicago Mayor Rahm Emanuel, and health policy advisor to likely Democratic presidential nominee Joe Biden. He’s controversial for an Atlantic essay in 2014 arguing why he hoped to die at 75, which was also accused of devaluing the lives of vulnerable people.

Persad’s law review paper focuses disability law and “evidence-based triage:

Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. All of these factors, when assessed based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities.

When triage policies “use medical evidence to save more lives and years of life,” they are “ethically preferable for people with and without disabilities.”

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Guterman told The Fix the paper caught the NYU group’s attention when a member saw it shared on Twitter.

“After reading the paper, we were astonished that YLJ chose to publish it,” she said: “The issue of ableism in legal academia reaches far beyond this single instance, so we chose an open letter to bring broader attention to the problem.”

The novel coronavirus has brought to light “the systemic inequalities that people with disabilities and people of color have long endured — and that society has long ignored,” Guterman explained.

The petition states that the journal shouldn’t have considered this paper at all and “has abandoned its duty as a steward of rigorous legal academia and precedent-setting ideology.” Persad’s argument is “rooted in eugenicist ideologies” and it “further ingrain[s] the long-discredited idea that certain lives are not worth preserving.”

If the journal does not “revoke publication” of the paper, “there must be a thorough substantiation of every citation to eradicate the rampant mischaracterizations of fact and law,” the petition demands.

“At a time when many people with disabilities are confronting elevated threats to well-being, an article using the law to justify this treatment is particularly harmful,” Guterman told The Fix. 

The Fix found a mixed response on Twitter to the controversy.

Alex Randazzo, a law student at NYU, encouraged people to sign the petition and said Persad’s paper “touts dangerous ideologies.”

Colin Wright, an evolutionary biologist, tweeted an image of Persad’s paper: “If you don’t think online mobs should dictate the content of academic journals, consider writing to the editors. Peer review isn’t perfect, but mob review is the worst of all possible worlds.”

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Without support from critic, ‘other editors might’ve capitulated’ to the pressure 

Bagenstos, the University of Michigan law professor, encourages Twitter users to read his own paper scheduled for publication in the Forum, which “specifically rebuts” Persad’s argument in the preprint paper.

Persad’s paper “fits with the mainstream bioethics work,” which Bagenstos opposes, he wrote in the thread. He believes that “people like me are right and people like [him] are wrong, and that our arguments are more persuasive than theirs.”

His side won’t be able to win, though, if they aren’t willing to openly discuss the topic with “powerful people like the bioethics establishment,” the University of Michigan law professor continued.

In Persad’s thread that addressed the petition against his paper, he also responded to Bagenstos. The University of Denver law professor thanked Bagenstos for defending his paper’s publication but said Bagenstos  “misses some complexities” by calling his paper part of the bioethics establishment.

Though they disagree on some legal doctrine and ethics, Persad still “agree[s] with much” of Bagenstos’s paper scheduled to be published alongside his: “We agree that triage should not use quality of life judgments; that law doesn’t mandate first-come, first-served or lottery allocation; and that democratic legitimacy matters.”

He even believes that without support from Bagenstons, “other editors might’ve capitulated” to the pressure campaign. The law review editors in this case “have been excellent,” Persad said.

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IMAGES: Everett Historical/Shutterstock, Greenwall Foundation

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About the Author
College Fix contributor Lexi Lonas is an intern for National Review Institute. A summer 2019 College Fix fellow, she worked at the Daily Caller. She also interned for the Washington Examiner in the summer of 2020. She is also a columnist for the Lone Conservative and her work has been published in the Daily Signal. She is slated to begin a yearlong fellowship at The Hill in 2021.

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