Court dismisses part of UIC law prof's civil rights lawsuit
The University of Illinois Chicago School of Law. Photo from Wikimedia Commons.
Updated: A federal judge on Wednesday dismissed a claim brought by Jason Kilborn, the University of Illinois Chicago School of Law professor who used abbreviated racial and gender slurs in a 2020 essay exam question, that he had been unfairly retaliated against for engaging in protected speech. However, the court also allowed some of his defamation claims to go forward.
Judge Sara Ellis of the Northern District of Illinois ruled Feb. 15 that Kilborn’s conduct did not involve a matter of public concern that would have triggered First Amendment protection for retaliation. Ellis also ruled that Kilborn can proceed on claims that his First Amendment rights were violated by being forced to take sensitivity training. However, she held that he could proceed against school administrators in their individual capacities but not their official capacities because the complaint does not adequately allege an ongoing violation of federal law.
The complaint names university administrators, including former law school dean Julie Spanbauer, as defendants. Ellis’ order also found that Kilborn’s due process claim can also go forward on the basis that the university’s nondiscrimination policy statement is “unconstitutionally void.”
The lawsuit stemmed from “a single final examination question,” which “one or two” students complained about, according to Kilborn’s 2022 amended complaint. Students circulated a petition that was critical of Kilborn after the exam question, according to the defense’s motion to dismiss.
Also, Kilborn’s lawsuit references a January 2021 Zoom call that he had with a member of the school’s Black Law Students Association. During the communication, Kilborn said the dean had not shown him the petition, perhaps because she feared that he might “become homicidal” if he saw it. That was said in jest, according to the complaint, which also claims that it led to the university placing Kilborn on indefinite leave while an assessment was made to assess “this purported ‘threat’ of imminent physical violence.”
Kilborn was released to unrestricted duty a few days later, but his classes were canceled, according to the motion to dismiss. In a 2021 interview with the ABA Journal, Kilborn said he received full pay, benefits and email access during the administrative leave.
Besides the petition, various students and a faculty member filed complaints about Kilborn with the university’s Office for Access and Equity, according to the motion to dismiss. Some grievances dated back a few years.
There was an allegation that Kilborn referred to racial minorities in a 2020 lecture as “cockroaches” and denounced their participation in civil rights claims, according to a 2021 Office for Access and Equity letter. The letter stated that the office substantiated that Kilborn made multiple, inappropriate, racially charged comments in the class.
“This includes his making references to ‘cockroaches’ and ‘lynching;’ his using African-American Vernacular English (‘AAVE’) accent when referencing a Black artist’s lyrics; and when confronted by a Black student during the class because the student viewed these comments as overgeneralizing references to minorities, he referenced his own ‘implicit bias’ as some type of justification,” the letter stated.
In the Feb. 15 order, Ellis ruled that Kilborn cannot 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,” the order stated.
The complainants also had claimed that Kilborn emailed a student who signed the Black Law Students Association’s December 2020 petition, and he wrote that she should not “bite the hand that feeds her.” Though the Office for Access and Equity’s letter said Kilborn actually had written that his “hand of help had been bitten off.”
Considering Kilborn’s 2020 lecture, the 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.
Kilborn argued that the university shared the Office for Access and Equity letter detailing the findings, which was marked “personal and confidential,” with a third-party news source. In her order, Ellis wrote that Kilborn “plausibly alleged” that the defendants published the letter.
In its motion to dismiss, the defense wrote that the letter was “only made available to the UIC community” after it was released as part of a journalistic Freedom of Information Act request.
Additionally, the motion to dismiss argued that the statements that Kilborn claimed were defamatory—that he was guilty of race-based harassment, intimidated and threatened students, and used racial slurs—were “substantially true.”
That decision “should be left to a trier of fact,” Ellis wrote.
The university did not respond to a Journal interview request.
“We will be proceeding with the crux of the case in light of the opinion,” Paul K. Vickrey, Kilborn’s lawyer, told the Journal in an email.
See also:
ABAJournal.com: “In federal complaint, UIC law professor claims ‘sensitivity training’ violates his civil rights”
ABAJournal.com: “UIC law prof must receive online diversity training, coaching before classroom return, letter says”
Updated Feb. 17 at 12:20 p.m. to clarify language from the University of Illinois Chicago’s Office for Access and Equity’s letter and to add more information from Judge Sara Ellis’ opinion.
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