Chicago law professor accused of racism asks Seventh Circuit for another chance to sue school

CHICAGO (CN) — University of Illinois Chicago law students objected to what they saw as the racist conduct of their tenured professor Jason Kilborn in December 2020. Four years later, the controversy continues, with Kilborn taking a legal fight against the university all the way to the Seventh Circuit.

On Thursday an appellate panel heard arguments in that fight, weighing the limits of free speech and the responsibility of teachers to create a respectful environment for their students.

“Is there any limiting principle, or can professors say whatever they want about whatever they want during a class and it’s protected by the First Amendment?” U.S. Circuit Judge Thomas Kirsch II, a Donald Trump appointee, asked during the hearing.

The case stems from an exam prompt Kilborn authored for a civil procedure class, which confronted potential future lawyers with a hypothetical employment discrimination dispute. The question included a Black woman being called gendered and racial slurs, including the N word, by her peers. The slurs were censored, but in the backdrop of the 2020 national protests over racial injustice, it prompted backlash from Black law students.

In a January 2021 Zoom meeting with a member of the school’s Black Law Students Association over that backlash, Kilborn claimed the law school dean had not shown him a student letter circulated by the Black Law Students Association and criticizing the exam question because she thought the letter might make him feel “homicidal” if he saw it. The comment resulted in him being placed on indefinite leave.

The university’s Office for Access and Equity launched an investigation the following month. It found in May that Kilborn had violated university nondiscrimination policy in his classroom over the course of 2020 and early 2021. Besides his “homicidal” comment at the January 2021 meeting, the office highlighted a January 2020 class where he purportedly referred to nonwhite people as “cockroaches” in the context of a discussion on frivolous litigation, and referenced negative media stories about corporate bottom lines as “lynching.”

The investigation also found that Kilborn sent an email in January 2021 to a student who signed the Black Law Students Association’s letter, expressing that he felt betrayed. The office found it created concerns that he would retaliate against Black students for his professional troubles.

The school denied Kilborn a 2% raise over the issue and then-interim law school dean Julie Spanbauer mandated he take sensitivity training in November 2021. A month later the school informed him he would be not be teaching during the spring 2022 semester while he finished his training.

Kilborn finished the training course, but in January 2022 sued Spanbauer and four other university staff members in federal court claiming violations of his First, Fifth and 14th Amendment rights.

“In its zeal to protect students from speech that made them feel uncomfortable, the University of Illinois Chicago has violated a school of law faculty member’s rights to freedom of speech, academic freedom, and due process. It has also defamed him and subjected him to extreme emotional distress during a period of already heightened emotional trauma in the midst of the isolation and anxiety of the COVID-19 pandemic,” Kilborn wrote in an amended complaint that February.

More than a year and a half later, U.S. District Judge Sara Ellis tossed his complaint. The Barack Obama appointee found, among other conclusions, that the university staff enjoyed qualified immunity and that Kilborn, as a public school employee, hadn’t shown why his behavior warranted First Amendment protections.

“The First Amendment protects a public employee’s speech when the employee speaks as a private citizen addressing matters of public concern,” Ellis wrote in her November 2023 dismissal order. “If the speaker is not wearing his hat ‘as a citizen,’ or if he is not speaking ‘on a matter of public concern,’ then the First Amendment does not protect him.”

On appeal, Kilborn continued to argue that his conduct was protected free speech, and that the school’s nondiscrimination policy is unconstitutionally vague. He hoped to have Ellis’ ruling reversed and the case returned to the lower court for trial.

Kilborn’s attorney Patrick Solon, of the Chicago law firm Vitale Vickrey, told the Seventh Circuit panel Thursday that Kilborn’s speech did reach matters of public concern — despite what Ellis ruled. He started with the professor’s December 2020 exam question and the racial slurs it included.

“Whether teaching speech at the university level should use that word, extricated or otherwise, even in a hypothetical, was itself a matter of public concern. It was at the time,” Solon argued. “And professor Kilborn, using his expertise as the law professor, he chose to present that hypothetical to future lawyers.”

U.S. Circuit Judge David Hamilton, another Barack Obama appointee, asked Solon what value referencing the slurs added to Kilborn’s class. Solon responded that it was important for potential lawyers to reckon with the kind of ugly realities they might face in an actual law career, and that the hypothetical was intentionally designed to make them uneasy.

“He chose that purposely to confront these future with a real life scenario that would inherently be uncomfortable to them,” Solon said.

Hamilton and Kirsch, joined by George H.W. Bush appointee U.S. Circuit Judge Ilana Rovner, were more sympathetic to this line of argument than they were to the counters raised by the university staff. At one point Rovner asked the staff’s attorney John Kennedy, of the Chicago law firm Taft Stettinius, how law professors could teach without broaching all the sensitive subjects that come up in court.

“How can a law professor effectively teach if using the first letter of offensive words in cases, in real cases, in things that have occurred, in things that may be ongoing? How can that be considered harassment?” Rovner asked.

Kennedy responded UIC never objected to Kilborn’s exam question by itself, but rather his angry reaction to the controversy it spawned.

“This is not an academic freedom case. The anti-harassment finding did not arise as a result of the use of the word in the exam, it arose from Professor Kilborn’s response to the students who were criticizing him,” Kennedy said. “He, according to the findings of the Office for Access and Equity, had created a racially hostile learning environment by the way he was interacting with students and talking about this issue.”

Hamilton echoed Rovner’s concern by saying law school couldn’t be a “safe space,” given the issues courts deal with.

Kennedy flipped the premise in response: It’s not a matter of making law school a safe space, the attorney said, but instead ensuring law professors can broach sensitive subjects in a constructive way.

“If you’re going to talk about race, you better learn how to talk about race,” Kennedy said. “And the administration had every right as the employer to expect Kilborn to know how to talk about race if he’s going to wade into that issue in a civil procedure class.”

The appellate panel took the case under advisement but didn’t say when it would issue a ruling.

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