In federal complaint, UIC law professor claims 'sensitivity training' violates his civil rights
Jason Kilborn, the University of Illinois Chicago School of Law professor accused of engaging in behaviors that made some students of color feel uncomfortable, recently filed a federal lawsuit naming various university administrators as defendants, claiming that his free speech and equal protection rights have been violated.
The action, filed Jan. 27 in the U.S. District Court for the Northern District of Illinois, also alleges the civil procedure professor’s Fifth Amendment rights were violated. It does not name the law school as a defendant, and it claims Kilborn received two “summary suspensions” from teaching. A December letter from university counsel to Kilborn’s lawyer states that the professor continues to receive full pay and benefits and is assigned to two committees regarding ABA accreditation.
Much of Kilborn’s lawsuit centers on a hypothetical fact pattern from his December 2020 final exam, which used abbreviated racial and gender slurs. It also challenges “sensitivity training” he claims the university directed him to attend.
Also detailed is a four-hour, January 2021 electronic meeting about the exam question that Kilborn had with a student, a member of the Black Law Students Association who is not in his class, according to the complaint. Kilborn jokingly told the student that the law school dean did not share a BLSA petition criticizing him because she may have feared Kilborn would “become homicidal,” the complaint states.
Also, in 2021, the university’s Office for Access and Equity began an investigation about various allegations involving Kilborn, including his exam question. In its findings letter, it is alleged that Kilborn accused the BLSA member of calling him a liar and articulated a desire to go after people who “come at me.”
After Kilborn’s meeting with the BLSA member, several students met with the law school dean and other administrators and “misreported” that Kilborn had “exclaimed” he “was feeling homicidal,” or he “would become homicidal,” according to the lawsuit
Later, administrators invoked the university’s violence prevention plan for a behavioral threat assessment, which included Kilborn submitting to drug testing and being examined by a nurse, social worker and doctor, according to the complaint. It claims he was released to unrestricted duty a few days later, but his classes for the semester remained canceled.
In regards to the investigation by the university’s Office for Access and Equity, its May 28 finding letter is attached to the complaint. It states that the OAE’s review substantiated that some of Kilborn’s alleged behavior could interfere with Black students’ participation in the university’s education program, including his four-hour conversation with the BLSA member.
The finding letter references emails Kilborn sent to another student regarding his final exam question.
“This amplified the racial tensions from your prior conduct. Even hinting at physical violence in jest toward a student in reaction to written or spoken criticism is completely unacceptable; referencing the potential to become ‘homicidal’ in response to communications criticizing your conduct on racial topics created race-related fear of physical safety or retaliation,” the letter states.
The OAE letter also details a January 2020 civil procedure lecture, where Kilborn allegedly dismissed a Black student’s view that his comments were overgeneralizing references to people of color. Additionally, it was alleged Kilborn referred to racial minorities as “cockroaches” and denounced their participation in civil rights claims.
In the complaint, Kilborn denies referring to racial minorities as cockroaches, and his exhibits include one paragraph from a transcript of the January 2020 lecture. It details his remarks about “idiot people” winning million-dollar verdicts from Subway, for not having 11.5-inch-long sandwiches, and the media generally not covering these as frivolous cases.
“And that’s the problem. If they win, no one hears about this. They only hear about it if they lose, and God forbid that, then all the cockroaches come out of the walls, they’re thinking, right,” he said, according to the transcript.
Also, the complaint argues that Kilborn’s email communications referred to in the finding letter were between him and a white student, and there was a deliberate misrepresentation of the writings’ contents. Some of the emails are included in Kilborn’s exhibits.
“Can’t tell you how painful it was to see your name on BLSA’s attack letter against me,” he wrote to the student on Jan. 4, 2021. Additionally, the email stated he’d used the exam question for 10 years, with no complaints, and he did not intend to cause anyone distress.
In response, the student wrote that as a white person, they did not want to “ignore, negate or deny” the concerns of students of color. Kilborn subsequently wrote that he admired the student’s support for colleagues; however, making him into a “villain” was not “a fair or effective pathway to healing and understanding.”
Regarding Kilborn’s sensitivity training, it’s something he has “strenuously objected to,” according to the complaint. It claims that in July 2021, interim law school dean Julie Spanbauer agreed Kilborn would only receive mandated sensitivity training if after faculty review of his class recordings, it was determined he did not maintain a “nonharassing classroom environment.”
The exhibits include a November 2021 letter from Spanbauer to Kilborn, stating that she had “strongly encouraged” him to participate in small-group study sessions designed by the law school’s faculty committee for diversity, equity inclusion and law school campus climate. The writing acknowledged Kilborn was unable to participate in the discussions, because the committee had not met regularly.
“Meanwhile, the situation at the Law School remains fraught, and it is important to minimize the possibility of further incidents and disruption to the educational experience of our students,” Spanbauer wrote.
The subsequent training is through the Cornell University Center for Teaching Innovation, and Kilborn is expected to return to teaching in the fall of 2022, according to the university council’s December letter. The lawsuit does not specify whether Kilborn has started the training.
Kilborn’s lawsuit seems to involve two tensions—the university’s obligation to ensure students feel safe and respected, and recognizing that law school should train students for difficult situations, says Fitzgerald Bramwell, a Chicago lawyer who represents faculty in employment disputes.
“If the facts are as reported in the complaint, I don’t know that he treated students with anything other than dignity,” says Bramwell. Regarding sensitivity training, he adds that universities usually keep that confidential, and this situation is unique because Kilborn, who has been working with the Foundation for Individual Rights in Education’s faculty defense fund, is publicizing it.
Having a good learning environment is the “core mission” of a school, says Paul Lannon, a Boston lawyer who represents universities in faculty disputes. He adds that the majority of faculty embrace diversity training, and it should not be viewed as a punishment.
A partner with Holland & Knight, Lannon acknowledges that faculty facing mandatory training tend to be the most critical of it. He also thinks views have changed about what it means to treat students with respect.
“This professor alleges he’s used the same exam question for 10 years without any objections, and now it’s suddenly objectionable. Norms change, standards change, and people can be caught off guard,” Lannon says.
Wayne Giampietro, Kilborn’s lawyer, told the ABA Journal in an email that his client’s First Amendment rights have been “egregiously violated by the administration of the UIC School of Law.” A spokesperson for the university said it does not comment on pending litigation.
Updated Feb. 1 at 1:50 p.m. to report that the university’s findings letter, not the complaint, states that Kilborn allegedly accused the BLSA member of calling him a liar.