Jason Kilborn is a professor at John Marshall Law School at the University of Illinois-Chicago who wrote a Civil Procedure exam based on an employment discrimination hypothetical. The question referenced the use of racial and sexual epithets but, rather than use the words, Kilborn used commonly censored versions of just the first letter and blanks.  That led to his suspension at the school and now, after he was reinstated, University of Illinois-Chicago Chancellor Michael Amiridis has issued a letter to the Foundation for Individual Rights in Education (FIRE) that did little to quell concerns over academic freedom. Indeed, it seemed to minimize those concerns. While I disagree that the letter was a categorical denial any academic freedom protection, the controversy is chilling for those who see both free of speech and academic freedom being eroded on our campuses.  (For full disclosure, I have an honorary degree from John Marshall Law School).

Professor Kilborn’s Civil Procedure II exam described how an employee quit “after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n___’ and ‘b___’ [sic].”  The full exam question was reprinted by Professor Eugene Volokh in a column criticizing the action against Kilborn.

The use of the censored references led to a complaint in a letter from the Black Law Students Association and later a petition which called for Kilborn to be stripped of his committee assignments and other reforms. The Petition stated:

The slur shocked students created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam. Considering the subject matter, and the call of the question, the use of the “n____” and “b____” was certainly unwarranted as it did not serve any educational purpose. The question was culturally insensitive and tone-deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year.

The integration of this dark and vile verbiage on a Civil Procedure II exam was inexcusable and appropriate measures of accountability must be executed by the UIC administration.

College Fix described the letter from Amiridis as a denial of any academic freedom protections for Kilborn. I do not quite see it that way. The letter denies that there are academic freedom protections against any investigation or adjudication of such claims.  He is arguing that such investigations can vindicate academic freedom values but that the university has an obligation to investigate.

My objection is in the measures taken against Professor Kilborn, which I do believe undermine academic freedom. He was suspended and put on administrative leave because of a complaint that in my view was a denial of his pedagogical privileges. The matter could have been investigated further by the university after an initial determination not to change his status. Instead, he was suspended — a decision that clearly will create a chilling effect on other academics at the school.

I am also concerned by the position of Amiridis in a lengthy footnote that says that the university disputes the claim that the use of the terms was “pedagogical relevant” or “necessarily germane to the study of civil procedure.” That is a statement that drives to the very core of academic freedom. Just because Kilborn teaches Civil Procedure does not mean that hypotheticals raising racial discrimination are not germane. The best Civil Procedure teachers show how these rules can raise difficult political, social, and constitutional issues when applied in different contexts. Moreover, professors have been pushed by universities and various academic groups to incorporate greater consideration of social justice and racial equality issues in their classes.

Professor Kilborn wrote an exam question that included the censored versions of words that are commonly found in media articles and academic publications. For that, he was publicly suspended and ostracized. The school could have investigated without changing his status. It is important to listen to these students who felt offended by the question. Indeed, this was an opportunity to discuss why professors often raise such discomforting or even offensive issues in our exams. I do not believe suspension however was warranted and that the treatment of Kilborn undermined the values of academic freedom in making such choices.

The university has noted that there were other issues raised by students. One such issue appears to be related to a conversation with a student after the exam. Kilborn held a lengthy Zoom call with a member of the BLSA and Northwestern University Law Prof. Andrew Koppelman included Kilborn’s account in an essay in The Chronicle of Higher Education:

“While the battle over the exam language continues, it turns out I was actively misled into believing my suspension was related to that language.

“On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me. Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA’s attack letter, and I flippantly responded, ‘I suspect she’s afraid if I saw the horrible things said about me in that letter I would become homicidal.’ Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.

“He apparently turned around and reported that I was a homicidal threat. Our university’s Behavioral Threat Assessment Team convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus. […] Having full discretion to implement or reject that recommendation, and knowing me fairly well, having worked with me quite a bit for the past four years, my dean decided that I was, indeed, a homicidal threat.”

Dean Darby Dickerson (who also served as president of the Association of American Law Schools) reported Kilborn on the basis of that statement in a four-hour Zoom call. Again, the question is why the school cannot address such claims informally when the statement was clearly meant in jest. There is no indication that Professor Kilborn is indeed homicidal. Indeed, holding a four-hour call with a single concerned student would seem strong evidence of a desire to engage concerned students and explain his pedagogical purposes.

It is important to note that this entire controversy began with an exam question on an employment discrimination case that censored terms to avoid discomfort or insult. As academics (and particularly law professors), we have to address difficult and discomforting issues in our society. Our students have to be prepared to work in a world that is filled with such offensive terms and discrimination. Instead, the university and the law school showed little concern for the impact on these actions on not just Professor Kilborn but other professors.  Few would want to risk such public humiliation and suspension.  The result is that they are likely to simply sanitize exams questions to avoid anything that might trip a wire or cause a complaint. The loss is not just felt in eroding academic freedom values but in abridging academic training for our students.