Appeals court vindicates law professor disciplined for censored slurs on test

An appellate court has reversed a lower court’s dismissal of a First Amendment retaliation claim against University of Illinois, Chicago by a law school professor there.

The decision, made by the Seventh Circuit U.S. Court of Appeals earlier this month, serves as the latest chapter in a conflict, initiated in December 2020 when Professor Jason Kilborn included a question containing a pair of censored slurs for African Americans and women in an exam for a civil procedure course.

The appeals court found the lower court erred in dismissing Kilborn’s retaliation claim without properly weighing his First Amendment protections, and in particular within an academic setting. The decision allows Kilborn to continue pursuing his claim that the university violated his free speech rights.

“This is a huge precedent and I could not be prouder that my name is going to stand on this for now and forever,” Kilborn told The College Fix in a telephone interview Friday.

“We need First Amendment protections more than anywhere, it seems to me, in the public university law school classroom, and these crazy people [at UIC] wanted to deny me that,” Kilborn said.

The College Fix reached out to UIC Law for comment but has yet to hear back.

Although the three-judge appellate panel upheld the dismissal of all Kilborn’s federal claims with the exception of the one pertaining to First Amendment retaliation, Kilborn told The Fix he views his free speech retaliation claim as the most important one, and views the appellate court decision as a victory.

“Not only have I won [First Amendment protections] for myself, I have established that in a very wide region covered by the Seventh Circuit US Court of Appeals, including hundreds…of public universities and colleges, all of us professors have the right to First Amendment protection of our speech as it relates to teaching and scholarship,” he said. “That’s a massive win.”

The offending exam question, which Kilborn had used on prior exams, pertained to a hypothetical situation in which an employee quit her job “after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n___’ and ‘b___ .’”

After students complained about the question to the law school dean, Kilborn partook in a discussion hosted via Zoom by the Black Law Students Association. During the discussion, Kilborn jokingly suggested the dean feared he might “become homicidal” if he saw a petition criticizing his use of the offending question.

Afterwards, Kilborn was placed on indefinite administrative leave with pay and investigated for creating a racially hostile environment at UIC.

During the investigation, past in-class comments made by Kilborn resurfaced and were subjected to additional scrutiny. These included his colloquial use of the terms “lynching” and “cockroaches” when discussing the relationship between frivolous litigation, plaintiff incentives, and the media, as well as his use of an affected African American accent while quoting a Jay-Z song describing a pretexual traffic stop.

Although Kilborn was eventually allowed to return to teaching, he was denied a 2 percent raise and required to undergo drug testing, a medical examination, and eight weeks of diversity training.

Among his required reading materials for his diversity training was Bobbie Harro’s “The Cycle of Socialization,” which Kilborn noted ironically contains the derogatory term for African Americans used in his exam question, and censors it in the same manner: “White people who support their colleagues of color may be called ‘n—– lover.’”

However, despite being allowed to return to the classroom, Kilborn said, “This lawsuit was my way of trying to tie up loose ends and say, ‘No, I’m not just going to walk away from this.’ You can’t run roughshod all over my First Amendment rights and expect me to just go, ‘Oh, well, I’m at least back in the classroom.’”

Hence, Kilborn sued UIC, claiming he was subjected to First Amendment retaliation, compelled to profess support for the university’s diversity program, and denied due process.

Kilborn also alleged the university non-discrimination policy he was said to have violated was impermissibly vague and that university officials have refused to clarify what he should do to avoid future violations.

When asked about the future of his case, Kilborn said, “I’m very, very, perfectly happy to continue to litigate this case as long as UIC’s administrators want to continue to fight it with me.”

However, he noted, “the Seventh Circuit’s opinion has made it abundantly clear that [UIC administrators] violated my rights here and are in the wrong.”

Furthermore, he added, according to billing records relevant to the case that he obtained through a FOIA request from the University of Illinois system, UIC Law has already run up a legal bill of over $1.2 million for the case.

“If the administrators have any sanity at all,” he said, “I think they’re going to try to make this go away.”

“If they want to try to make me an offer that will sort of make me comfortable…and will pay my lawyers for their very, very, generous expenditure of time and resources on my case, then, you know, I could see the possibility of making this thing go away.”

IMAGE CAPTION AND CREDIT: Pictured is UIC law Professor Jason Kilborn; FIRE YouTube screenshot

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