A UIC professor has won the chance to revive his lawsuit against the school for allegedly acting in 2020 at the behest of students to retaliate against him over allegedly racially insensitive exam questions and statements made in class and outside of class, amounting to violations of his First Amendment speech rights.
On March 12, a three-judge panel of the U.S. Seventh Circuit Court of Appeals partially sided with Jason Kilborn, a University of Illinois at Chicago law professor, agreeing a federal judge had wrongly tossed his claims the university had trampled his rights to speak freely on academic matters, punishing him for saying things that university administrators and some of his students found inappropriate.
The panel, however, declined to resurrect other elements of Kilborn's case, including his claim that the university similarly violated his constitutional rights by forcing him to undergo required "diversity training" as part of the university's perceived punishment.
U.S. Seventh Circuit Court of Appeals Judge Thomas L. Kirsch II
| US Dept. of Justice, Public domain, via Wikimedia Commons
Kilborn had filed suit against various UIC administrators in 2022 in Chicago federal court.
The lawsuit centered on actions taken by the UIC administrators in response to complaints the officials said they had received from black students, allegedly beginning with a question Kilborn had long included on final exams given in a class on civil procedure Kilborn taught at UIC.
According to court documents, the exam question asked students to analyze a piece of evidence, an account from a hypothetical former manager who asserted she had "quit her job ... after she attended a meeting in which other managers expressed their anger at (her), calling her a 'n-----' and 'b----' (profane expressions for African Americans and women) and vowed to get rid of her."
According to court documents, the question appeared in that form, with the slurs redacted, but for the first letter of each word. According to court documents, Kilborn's exam had included the question in that form for at least the previous 10 years. Over that time, Kilborn said the test had been taken by 'numerous Black and non-white students,' without complaints.
However, in December 2020, the exam question allegedly prompted certain black students to complaint to administrators that the question made them feel uncomfortable.
Kilborn was then allegedly called to meet with the law school dean, and he allegedly, of his own volition, agreed to send “a note of regret to his class if those oblique references had caused anyone any distress.”
However, UIC administrators and students allegedly increased the intensity of their examination of Kilborn. The professor was allegedly placed on administrative leave, and forbidden from teaching or even meeting informally with students, faculty colleagues, or UIC alumni.
According to the complaint, students had created a petition concerning Kilborn’s exam question, and the Black Law Student Association had asked fellow past and current students to come forward if they had ever been “affected” by Kilborn.
According to the complaint, Kilborn learned of the petition during a conversation with a representative of the Black Law Student Association. When he was asked why he believed the dean had not told him about the student petition, Kilborn said, using a “metaphorical expression,” that “perhaps she had not shared the petition with him because she feared that if Plaintiff (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.
Later investigations later allegedly determined Kilborn had never discriminated against anyone.
However, the university administrators still determined he had violated school policy against “harassment.”
According to the complaint, a report prepared by the Office for Access and Equity was allegedly replete with falsehoods, misrepresentations and mischaracterizations concerning Kilborn’s academic and classroom statements and activities.
According to the complaint, Kilborn and UIC administrators reached a deal under which Kilborn could avoid “sensitivity training on (his) supposed ‘white privilege’ and engagement with diverse students,” if a review of his previous four semesters of class recordings revealed he had “failed to maintain a non-harassing classroom environment.”
However, UIC administrators allegedly reneged on that deal, denying him a 2% pay raise, forcing him to participate in diversity training after all, and suspending him from teaching in the Spring 2022 semester.
They conditioned his return to teaching on his completion of an 8-week “diversity course;” 20 hours of course work, including required ‘self-reflection’ papers; plus weekly 90-minute sessions with a “trainer,” who would be empowered to determine if Kilborn agreed with “the goals of the program.”
In his lawsuit, Kilborn asserts the UIC administrators violated his constitutional rights to protected academic speech, due process and equal protection, under the First, Fifth and Fourteenth amendments, and Illinois laws protecting academic freedom.
In Chicago federal district court, U.S. District Judge Sara Ellis dismissed Kilborn's claims against the administrators, saying they had acted within their authority as employers to restrict his speech, as an employee of the university within his classroom and in other professional contexts.
Therefore, Ellis said the officials enjoyed so-called qualified immunity from being sued.
On appeal, however, the judges at the Seventh Circuit said Ellis' ruling went too far.
The appellate judges agreed the administrators enjoyed qualified immunity on several of Kilborn's claims, including his assertion that the forced diversity training violated his speech rights, by essentially forcing him to express agreement with the university's positions of "diversity" related topics, as a condition of returning to the classroom.
The judges noted that the U.S. Supreme Court has declared that public employees cannot be forced to pay union dues as a condition of employment, as that amounts to unconstitutional compelled speech.
But the Seventh Circuit judges said they wouldn't extend those same protections to compulsory diversity training. They said they couldn't say if it could be considered "part of an employee's official duties ... to express commitment to the goals of a training program?"
They said the lack of further guidance from the Supreme Court leaves open the possibility that "university officials could reasonably believe that requiring an employee to express commitment to the goals of a training program germane to his position is constitutionally permissible."
However, the Seventh Circuit judges said the same uncertainty does not apply to Kilborn's claims concerning his academic speech, both within the classroom and outside.
They said the university officials can't establish qualified immunity should extend to those claims, as Kilborn's exam question and other allegedly insensitive comments in the classroom, and his later comments to university administrators and black students outside the classroom, clearly fall into the category of constitutionally protected academic speech.
"... Where, like here, a plaintiff's speech falls comfortably within the core of what constitutes university teaching and scholarship, university officials cannot win on qualified immunity merely by proposing an extension ... that courts have not yet recognized or rejected," they wrote.
The judges noted courts have consistently recognized that "the First Amendment protects the right of faculty members to engage in academic debates, pursuits, and inquiries and to discuss ideas, narratives, concepts, imagery, and opinions—scientific, political or aesthetic—with an audience whom the speaker seeks to inform, edify, or entertain.”
And they said those protections don't depend on the size or scope of the audience.
"Kilborn’s exam question, out-of-class statements, and inclass remarks are all academic speech that address matters of public concern, notwithstanding the limited size of Kilborn’s audience," the judges wrote. "The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom.
"The content, form and context of the exam question give no indication that it involved a matter of private concern rather than serving broader pedagogical purposes. Kilborn’s in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops. Kilborn’s out-of-class remarks also contributed to a public discussion, initiated by members of the (Black Law Students Association) community, on the propriety of using expurgated slurs in a law school exam."
While UIC and its administrators argued they should be allowed to take action against Kilborn to protect their classrooms from "harassment," the judges said whether or not Kilborn was actually "harassing" anyone is a reputation-damaging charge Kilborn should be allowed to challenge in court and the university should be forced to defend, if it wishes to escape Kilborn's lawsuit.
".. It is reasonable to infer from the well-pleaded facts in Kilborn's complaint that University officials punished him for the controversial exam question and used the investigation to establish a pretext for their actions," the judges wrote.
The decision was authored by Seventh Circuit Judge Thomas L. Kirsch. Judges David F. Hamilton and Ilana D. Rovner concurred in the ruling.
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.