UIC law prof appeals after dismissal of civil rights lawsuit
Updated: A professor at the University of Illinois Chicago School of Law has filed an appeal to the 7th U.S. Circuit Court of Appeals at Chicago after his case stemming from his use of abbreviated racial and gender slurs in an essay question in a December 2020 final exam was dismissed.
Professor Jason J. Kilborn’s 2022 complaint alleged violations of the First Amendment, the 14th Amendments and state laws. The complaint and the appeal name university administrators, including Julie Spanbauer, the former law school dean, as defendants.
“Because Kilborn has again failed to sufficiently plead that his speech involved matters of public concern, the court dismisses his First Amendment retaliation claim,” wrote U.S. District Judge Sara L. Ellis of the Northern District of Illinois in the Nov. 1 opinion. “Additionally, the court dismisses Kilborn’s 14th Amendment due process claims because they fail to state a cognizable claim. Without any viable federal claims remaining, the court declines to exercise supplemental jurisdiction over his state law claims and dismisses those claims without prejudice.”
The ruling last month follows a Feb. 15 dismissal of one claim. Ellis then stated that Kilborn’s conduct did not involve a matter of public concern that would have triggered First Amendment protection for retaliation.
‘Offensive and culturally insensitive’
In 2020, days after the exam in question, the Black Law Students Association circulated a letter asking Kilborn to step down as chair of the academic affairs committee and the university to create a policy prohibiting “offensive and culturally insensitive” language in the classroom. In addition, students filed complaints about the tenured professor with the university’s Office for Access and Equity.
Kilborn was placed on administrative leave for the first few weeks of spring 2021, receiving full pay, benefits and email access.
The exam question was not the only complaints involving Kilborn. In May 2021, the UIC Office for Access and Equity detailed various complaints in letter saying Kilborn’s conduct was “sufficiently substantial and repeated” enough to interfere with Black students’ law school participation and constituted harassment.
Specific complaints included remarks during a January 2020 lecture dismissing a Black student’s view that his comments were overgeneralizing references to people of color, referring to racial minorities as “cockroaches,” and denouncing their participation in civil rights claims. Additionally, the letter claims that Kilborn characterized media stories focused on the negative behaviors of white men as “lynching.”
The Office for Access and Equity letter also addresses Kilborn’s lengthy Zoom call with a student who signed the Black Law Students Association letter but was not in his class, according to the complaint. In the call, he allegedly accused the student of calling him a liar and stated a desire to go after people who “come at me.” The call was Jan. 7, 2021, the day after the U.S. Capitol riot. According to the Office for Access and Equity letter, public safety concerns across the nation were heightened at the time.
Considering Kilborn’s January 2020 lecture, his December 2020 exam question and the remarks that he made during the January 2021 Zoom call, his alleged behavior affected many Black students and “substantially interfered” with their law school participation, according to the Office for Access and Equity letter. The letter included no sanctions.
In the February order, Ellis then ruled that Kilborn could not proceed on his defamation claim based on comments that he used racial slurs, denounced racial minorities’ participation in civil rights claims, or referred to minorities as cockroaches.
“The findings letter does not state that Kilborn referred to racial minorities as ‘cockroaches;’ instead, it asserts that Kilborn ‘ma[de] references to ‘cockroaches’ during his Jan. 23, 2020, class’ as evidenced by the transcript excerpt Kilborn included in his amended complaint,” according to the order.
Support from other professors
Kilborn was the first person to receive legal help from the Foundation for Individual Rights in Education’s faculty defense fund, which made the initial filing. Other law professors have shown support in editorials.
Andrew Koppelman, a professor at Northwestern University’s Pritzker School of Law, wrote that the complaints were “foolish persecution” in a November 2021 article for the Chronicle of Higher Education.
Brian Leiter, a professor at the University of Chicago Law School, wrote that the question on the “exam hypothetical was clearly proper” on his blog, Brian Leiter’s Law School Reports, in January 2021.
The University of Illinois Chicago provided a statement to the ABA Journal.
“The university does not comment on pending litigation,” a University of Illinois Chicago spokesperson said.
Paul Vickrey, Kilborn’s attorney, also gave a statement to the Journal.
“We look forward to airing these issues in the 7th Circuit, as this is an important case about the scope of the First Amendment in the public university setting,” wrote Vickrey, a partner at Vitale, Vickrey, Niro, Solon & Gasey in Chicago.
Updated Dec. 6 at 8:15 a.m. to include the statement from the University of Illinois Chicago spokesperson.