A University of Illinois at Chicago law professor won the right to pursue some of his legal claims against school officials who he says defamed him and wrongly forced him into sensitivity training, violating his speech rights amid an investigation stemming from fallout of his students’ racial insensitivity allegations.
In January 2022, Jason Kilborn sued various UIC administrators in Chicago federal court — but not the university itself — alleging he was fighting back against a perceived attempt by university leadership, at the behest of certain allegedly offended students, to allegedly humiliate the professor into accepting punishments, including suspensions, denial of a pay raise and required diversity training, over his use of example redacted racial slurs in an exam question dealing with the law and racial discrimination.
Named defendants include UIC Chancellor Michael Amiridis; UIC’s Associate Chancellor for the Office for Access and Equity Caryn A. Bills; Interim Dean of the UIC School of Law Julie M. Spanbauer; Donald Kamm, director of UIC’s Office for Access and Equity; and Ashley Davidson, former Title IX & Equity Compliance Specialist in the Office for Access and Equity at UIC.
U.S. District Judge Sara Ellis issued an opinion Feb. 15 ruling on defendants’ motion to dismiss. She allowed him to continue a claim the named defendants compelled his speech in violation of First Amendment rights, as well as a due process claim rooted in his argument the school’s nondiscrimination policy is unconstitutionally void. He also is allowed to press state law claims of defamation and false light on select statements, but cannot continue an intentional infliction of emotional distress allegation for failure to plead “extreme and outrageous conduct.”
The lawsuit centers on UIC’s alleged response to complaints university administrators allegedly told Kilborn they received from Black students, allegedly beginning with a question Kilborn included on the December 2020 final exam for civil procedure class. Ellis said Kilborn had the hypothetical employment discrimination scenario on his final exams for a decade.
According to the complaint, the exam asked students to analyze a piece of evidence, an account from a former manager who had “quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n ----’ and ‘b ----’ (profane expressions for African Americans and women) and vowed to get rid of her.”
At a subsequent meeting with the law school dean, Kiborn said he offered to send “a note of regret to his class if those oblique references had caused anyone any distress.” In January 2021, the school allegedly placed Kilborn on administrative leave, forbidden from teaching or meeting informally with students, faculty colleagues or alumni.
Kilborn said he later learned of a petition the Black Law Student Association circulated. When asked why he believed the dean hadn’t told him about the petition, Kilborn said, using a “metaphorical expression,” that “perhaps she had not shared the petition with him because she feared that if (Kilborn) saw the hateful things said about him in that petition, he might ‘become homicidal.’ ”
According to the complaint, the students allegedly then used that “metaphorical expression” against him, telling administrators they feared Kilborn might turn violent. This, in turn, allegedly led administrators to cite the school’s anti-violence plan in cracking down on Kilborn. Although ensuing investigations cleared Kilborn of discrimination, administrators still determined he violated school policy against “harassment.”
In seeking dismissal, the defendants argued an exam question isn’t protected speech because it represents a component of a professor’s official duties, not the remarks of a “private citizen addressing matters of public concern,” Ellis wrote. She said courts have differed on when protections apply to professors, but said her opinion is exam questions likely constitute “core official duties” and, furthermore, “neither Kilborn’s word choice for his exam question nor his conversations with students after the exam involved matters of public concern.”
Ellis said dialogue during class might implicate such matters, but “Kilborn’s exam question as pleaded, did not.” Neither did his comment about becoming “homicidal,” allegedly offered in jest, as it was made during a private conversation.
Kilborn also alleged a violation of First Amendment rights because administrators compelled him to take sensitivity training, which he could only complete by expressing commitment to the program’s goals, regardless of his agreement with its content and purpose. Ellis said the 11th Amendment protects administrators in their official capacities as state employees from a federal compelled speech lawsuit and also noted Kilborn failed to allege an ongoing violation of federal law.
However, she did say his complaint at this stage has sufficient allegations regarding the defendants’ individual involvement in depravation of rights.
“The allegations against Spanbauer and Amiridis demonstrate, at the very least, knowledge of and consent to the training program,” Ellis wrote, adding his pleadings at least make it “plausible” other defendants had roles in mandating the training.
Although Kilborn acknowledged he couldn’t pursue a due process claim concerning his suspension, he pressed the issue over being excluded from a 2% merit raise given to all professors. But Ellis agreed with defendants “that Kilborn lacks a cognizable property interest in a merit raise” by failing to establish entitlement.
Ellis did side with Kilborn on his challenge to the nondiscrimination policy, citing his allegation the term “harassment” isn’t defined, leaving employees without guidance on the policy or unacceptable conduct. She said he adequately alleged being subject to that policy constitutes an ongoing violation of federal law. He is allowed to sue defendants in their individual and official capacities on that claim.
Turning to state law claims, Ellis said sovereign immunity doesn’t apply to those allegations. Although she said Kilborn might fail on his defamation claim related to a letter from the Office for Access and Equity, Ellis agreed Kilborn “sufficiently pleaded defendants’ involvement in making the allegedly defamatory statements.”
He also adequately alleged their role in release of a letter about the office’s findings, despite it being marked “personal and confidential” and will be allowed to press claims about many statements in that letter, which Ellis said are factual disputes unsuited for a motion to dismiss. Among those are whether Kilborn’s actions constituted harassment because they interfered with Black students participating in UIC academics, whether he had “overtly intimidating and threatening reactions” to criticism, if he made “inappropriate” comments in class and whether his reactions were intimidating and cause fear of physical safety or retaliation.
“Kilborn may not, however, proceed with his claim based on comments that he ‘used’ racial slurs, denounced racial minorities’ participation in civil rights claims or referred to minorities as ‘cockroaches,’ ” Ellis wrote. “Defendants defend themselves against each of these allegedly defamatory statements based on substantial truth.”
Ellis also said Kilborn’s false light allegations include sufficient pleading of malice on the part of defendants, although he might not prevail at trial, but that his claim the defendants intentionally inflicted emotional distress fail by not showing the requisite conduct.
“Kilborn admits to writing the exam question that sparked controversy, telling a student he might ‘become homicidal’ (even if in jest), and writing an email to a former student in response to the student signing the BLSA Petition,” Ellis wrote. “Kilborn may disagree with the way defendants carried out the investigation or interpreted Kilborn’s statements, but the amended complaint does not sufficiently allege that defendants’ investigation served ‘no legitimate objective’ such that their behavior amounted to extreme and outrageous conduct.”
Finally, Ellis rejected the defendants’ motion for sanctions against Kilborn and his attorneys. While senstitive to “potentially spurious allegations,” Ellis said sanctions are inappropriate at this early stage of litigation, noting she would entertain a renewed motion should subsequent amended complaints persist with the same content.
Kilborn has been represented by attorneys Paul K. Vickrey, Patrick F. Solon and Dylan M. Brown, of the firm of Vitale Vickrey Niro Solon & Gasey, of Chicago.
The UIC defendants have been represented by attorneys John F. Kennedy, Elizabeth E. Babbitt, Paul J. Coogan and Elizabeth A. Winkowski, of Taft Stettinius & Hollister, of Chicago.