Exam question wasn’t only offensive behavior of UIC law professor, according to internal investigation
The University of Illinois Chicago School of Law. Photo from Wikimedia Commons.
Over the past year, various academics have expressed support for a University of Illinois Chicago School of Law professor who faced student criticism after he used abbreviated racial and gender slurs as part of a hypothetical fact pattern for a civil procedure final exam.
One of the words used by professor Jason Kilborn starts with an “n,” while the other rhymes with witch. A December 2020 letter circulated by the law school’s Black Law Students Association asked that Kilborn step down as chair of the academic affairs committee, and that the school implement a policy to prohibit the use of “offensive and culturally insensitive” language in the classroom. Students also filed complaints about Kilborn with the university’s Office for Access and Equity.
Andrew Koppelman, a professor at Northwestern University’s Pritzker School of Law, described the complaints as a “foolish persecution,” in a November 2021 Chronicle of Higher Education piece, while Brian Leiter of the University of Chicago wrote that the exam question was “entirely appropriate” on his blog, Brian Leiter’s Law School Reports.
Kilborn says he feels attacked. His story includes a four-hour Zoom call in January 2021, with just him and a BLSA member. During the call, Kilborn says he jokingly said the dean hadn’t showed him the BLSA letter because she might have been afraid he’d become homicidal.
“I can’t treat these students as friends and future colleagues anymore. I have to teach them as though they are potentially trying to destroy me,” Kilborn told the Journal in a September interview. He’s the first person to get legal help from a recently formed faculty defense fund started by the Foundation for Individual Rights in Education. In an August news release, the organization claimed the university “abruptly suspended” Kilborn and refused to explain its basis.
However, a University of Illinois Chicago spokesperson in an email told the ABA Journal Kilborn was not suspended; he was placed on administrative leave during the first few weeks of the spring 2021 semester. Kilborn says he received full pay, benefits and email access during the administrative leave.
“Because the start of the paid administrative leave coincided with the start of the spring semester, arrangements had to be put in place to ensure that there were no disruptions to the student learning experience, and those arrangements lasted the duration of the spring semester,” the university spokesperson told the Journal.
Some law students have a different story than Kilborn’s version of events. Erica Fatima, a 3L and a member of the BLSA chapter, says there’s a history of race-related complaints involving Kilborn, and his December 2020 exam question was the final straw. Kilborn and FIRE claim the matter is about academic freedom, but Fatima says the grievances are really about harassing people based on race, which violates university policy.
A May 28 letter from UIC’s Office for Access and Equity details the various complaints. According to the letter, the agency found that Kilborn’s conduct was “sufficiently substantial and repeated” enough to interfere with Black students’ law school participation and constituted harassment. The letter does not list a sanction.
Allegations the office found to be substantiated include Kilborn in 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 Kilborn characterized media stories focused on the negative behaviors of white men as “lynching.” All of the remarks were made in the space of one hour, according to the letter, and Kilborn reportedly acknowledged much of the conduct. It also says he apologized for the lynching reference.
The OAE letter also claims Kilborn emailed a student who signed BLSA’s December 2020 letter criticizing him, and he wrote that she should not “bite the hand that feeds her.” He denies that allegation.
Further, the OAE letter addresses Kilborn’s lengthy Zoom call with another student, who signed the BLSA letter, too. Kilborn allegedly accused the student of calling him a liar and articulated a desire to go after people who “come at me.” The call was on Jan. 7, the day after the U.S. Capital riot. According to the OAE 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 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 OAE letter.
“Professor Kilborn’s reactions to minority students’ expressions of extreme disappointment in the exam question demonstrated racial insensitivity and even hostility to those voicing concerns about a racially charged topic,” the office wrote. A footnote in the writing claims the analysis does not “hinge” on whether there were pedagogical reasons for the abbreviated slurs in the exam question.
Kilborn has tenure, and BLSA has asked that he be terminated from his position. The request is supported by various student groups at UIC Law, including the Decalogue Society, which was formed by Jewish students; the Health Law Society; the school’s National Lawyers Guild chapter; and the Law Student Veterans’ Association.
Kilborn says he intends to file a federal court action against the university. According to him, he was denied a 2% merit raise because he refused to participate in cultural competency training and coachings.
“First of all, it’s a ridiculous waste of time. Study after study shows these don’t do anything except aggravate the person forced into it,” he says. “And I don’t need sensitivity training. I am totally sensitive.”
Kilborn also claims the university defamed him and subjected him to emotional distress. He describes the investigation as a “travesty of egregious violations,” calling the policy opaque and claiming he had no opportunity to confront allegations, witnesses or evidence.
According to the OAE letter, the agency interviewed Kilborn and members of the law school community. The writing states that various students complained about Kilborn.
An internal investigation conducted in bad faith may constitute an adverse employment action, says Fitzgerald Bramwell, a Chicago lawyer who represents faculty in employment matters. Bramwell, who is Black, says he has worked on several lawsuits in which the N-word was part of the evidence.
“If students are interested in any way, shape or form in employment law, they better be able to handle that word and others that are also violent,” he says.
When asked about that, Fatima says to her knowledge, being tolerant of racial slurs is not required to pass a bar exam. She also says other classes that included racial slurs as part of the academic process have been meaningful. As an example she mentioned a property class taught by UIC Law professor Cecil Hunt. They read cases with a lot of offensive language, nothing was redacted and much of it was discussed in class, which did bring out some uncomfortable feelings, she adds.
“It’s going to be uncomfortable for those whose ancestors committed these atrocities and for those of us whose ancestors were the victims. It’s an uncomfortable place, but if we get in there and have meaningful dialogue, even if you never change your mind, at least we had meaningful dialogue,” says Fatima, who also serves on the executive board of the law school’s student body association and is one of its American Bar Association representatives.
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