The Cruel and Unusual Punishment Of Prof. Jason Kilborn by U. Illinois-Chicago John Marshall Law School
UIC has imposed a reeducation and supervision program to publicly humiliate and demean a professor that would make the Maoist Red Guards blush. It is psychologically torturing a professor just because it thinks it can.
Not all of academia is mean-spirited, vindictive, and vicious. But enough of it is that the term “cancel culture” — a concept most associated with campuses — has penetrated the broader culture. The University of Illinois-Chicago John Marshall School of Law is a prime example of all of the above pathologies, an institution that is psychologically torturing a professor just because it thinks it can.
We have covered so many of these attacks on professors, and there is a pattern – much like in the Maoist Cultural Revolution, students frequently are the aggressors who consider it their right to end a career as “accountability” for perceived offense. The difference in campus culture is not so much student activists, that’s a given almost everywhere, it’s whether the administration becomes a party to the cancel culture.
Which brings me to the case of Prof. Jason Kilborn of the third-tier U. Illinois-Chicago Marshall Law School (not to be confused with the University of Chicago Law School, a top 10 school). At UIC, the administration seems to be enjoying being tormentor-in-chief.
Prof. Kilborn’s offense was using the “n” and “b” words on an exam. Not the words themselves, but literally the letters “n” and “b” in a question about employment discrimination.
(added) As reported by the Chicago Crusader, here is the full exam fact pattern and question:
The question included the following: Employer’s lawyer traveled to meet the manager, who stated that she 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. Later, Plaintiff’s lawyer served an interrogatory demanding the identity and location of any person with any information related to the termination of Plaintiff’s employment at Employer or potential discrimination against Plaintiff by Employer or any agent of Employer. Can Employer identify the former manager but properly withhold her location, as this is the product of a significant amount of work and expense by Employer’s attorney?
Aren’t we supposed to use letters instead of words, isn’t that the “correct” way to do it? Nope, not to some students.
The student coalition, which BLSA is apart of, wrote a statement and sent it to Dean Dickerson and Chancellor Amiridis on Wednesday, December 24,2020. Please reach out with any review, thoughts, concerns, and suggestions. We hope you are having a safe and fun holiday break! pic.twitter.com/FEAX7M31oc
— UIC JMLS Black Law Student Association (@uic_jmls_blsa) December 30, 2020
A student Change.org Petition asserted:
The slur shocked students created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam. Considering the subject matter, and the call of the question, the use of the “n____” and “b____” was certainly unwarranted as it did not serve any educational purpose. The question was culturally insensitive and tone-deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year.
The integration of this dark and vile verbiage on a Civil Procedure II exam was inexcusable and appropriate measures of accountability must be executed by the UIC administration.
Columbia University Prof. John McWorter, author of Woke Racism: How a New Religion Has Betrayed Black America, termed this student reaction Black Fragility:
No, this is not an SNL parody or a heightened storyline on a show like The Good Wife or Law and Order. This has actually happened, to and with and by real human beings here and now.
The administrators who did this to Kilborn think they are being “allies” of black people. They have actually revealed themselves as neoracists.
* * *
A tragic thing about our times is that episodes like this are coming to seem almost normal. We shake our heads at the “excess” involved. Possibly we walk by with a quick glance, as on a highway passing a nasty car wreck. We mutter in a conversation about it that the issues are “complex.”
But let’s pull the camera back, take a deep breath, and look at something like this pillorying of Kilborn with clear eyes. If a black student is traumatized to such a degree by seeing “n*****” on a piece of paper, then that student needs psychological counseling. We all understand the history and power of the N-word, but we all also understand the simple issue of degree. That student who got heart palpitations needs help, and what the suits at the University of Illinois in Chicago should have done as gently direct this student to the proper services, which the school surely provides, for people who have fallen away from the ability to cope with normal life.
A column in The Chronicle of Higher Ed by Andrew Koppelman, a professor at Northwestern University’s Pritzker School of Law, argued that Prof. Kilborn did nothing wrong:
Kilborn has used the same question for years, but this time it provoked an uproar. One student declared that on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association went to the law-school dean and to the central administration, demanding that Kilborn be stripped of his committee assignments. It denounced him on Instagram, LinkedIn, and Twitter, and filed a complaint with UIC’s Office for Access and Equity.
This is the sort of overreaction that calls for firmness on the part of the administration. John Marshall Law School, which was founded in 1899 and recently merged with UIC, is the only public law school in Chicago. If lawyers are going to be competent to do their jobs, they must be able to cope with the fact that humans sometimes do and say very bad things. Discrimination is among those bad things.
Students must thus be able to see the facts of discrimination lawsuits, and be able to perform legal analysis in the face of those facts. In the real world, racist slurs are not bowdlerized as they were on Kilborn’s exam. He did nothing inappropriate. A sensible and responsible administration would have told the students that.
You know who agreed with the students? Jesse Jackson, who joined them in street protests.
Prof. Kilborn provided this apology statement to the Above the Law website:
I am fully prepared to accept responsibility for using a context and first-letter abbreviated reference that caused anyone to feel distressed—I absolutely did not and do not want this, I’ve expressed regret for it, and I’ve learned something valuable here. But the right way for BLSA and others to react here is anything other than what they’ve done, and I hope you don’t further this unnecessary, unwarranted, and unconstructive attack on me. If someone inadvertently bumps into you on the street and says “hey, sorry about that” quickly, I hope none of us believes the appropriate response is to pounce on that person, beat them mercilessly, and disseminate all manner of invective about them to their employer and all over the internet. BLSA has actively pursued a campaign against me by contacting (1) central UIC administration, (2) my dean, (3) Instagram, (4) LinkedIn, (5) Channel 2 news, and perhaps to other news outlets, too, and (6) formally filing a complaint with the Office of Access and Equity. This is the office at UIC that deals with instances of alleged discrimination and harassment. When my dean mentioned to me that there was some issue with my question, I suggested the notion of my expressing regret for distressing anyone, and the dean put me in touch with the OAE for their view. A representative from that office was provided the question and the context, and we had a Zoom call that very evening, in which the rep assured me I had done nothing at all wrong, but she supported my idea to express regret if I my re-use of that question made anyone feel uncomfortable. I did that, and here we still are …
I love my students—EACH AND EVERY ONE of them, and I’ve gone out of my way to be supportive of the careers of women of color and others. I’ve done my best to use the same first-letter reference to that word that I see all over the internet, including in the commentary of people explaining that it is entirely inappropriate to use the word—and they reference it as “the n-word”—again, which is exactly what I did. For me to be cast as some sort of insensitive bigot because I used the very same first-letter reference to a horrible word that Civil Procedure is designed to root out and address is … a disservice to the role that law plays in our troubled society and the role that we lawyers have to play in rooting it out and eradicating it.
This is my “shocked” face – apologizing didn’t work!
The students have only escalated their demands that Prof. Kilborn be fired, and as is common, have expanded the range of accusations:
Now that he’s back on the teaching schedule for this spring, some students say he shouldn’t be allowed back at all. The Black Law Students Association, in particular, is demanding that the professor, Jason Kilborn, be fired….
Ashley Shannon, president of the campus BLSA chapter, who is not a student of Kilborn’s, said during her own speech last week, “We do not feel safe. Students have come together to write demands for the law school, starting with the termination of his tenured professor, stating that tenure is not immunity for discriminatory practices.” ….
In addition to who’s at fault, many of the facts of the case are in dispute. The university has accused Kilborn of calling minorities “cockroaches,” based on unnamed student reports, and of “diminishing” an unnamed student’s accent, for instance. Kilborn, meanwhile, says he’s never done any of that.
That’s how it works in so many of these cases. When the original accusation is shown to be garbage, they drum up new complaints.
If you were affected by Professor Kilborn past or present please share your experience so the student coalition can share these stories on Monday! #StrongerTogether https://t.co/ET9vmbAoB8 https://t.co/YXia5HKHNp
— UIC JMLS Black Law Student Association (@uic_jmls_blsa) January 7, 2021
I thought we had reported on this situation previously, but I can’t find the links. I did find that twice I had started a draft post but never finished it, first in January 2021, then again in September 2021. I deeply regret not following through, it’s just that the volume of these situations makes it hard to cover every case.
Also, Prof. Kilborm was represented by the Foundation For Individual Rights In Education (FIRE), which announced in September 2021 that it was case closed:
“Undergrad teaches students to think, but law schools, medical schools — they have to teach students how to do,” said Kilborn, who has taught law for 21 years.
Graduate programs in law and medicine, for example, can’t be taught with memorization or a series of lectures. He said they require difficult, hands-on training in the messy parts of their disciplines. Would you trust a surgeon who sat through a series of lectures, but never cut open a patient? In law school, Kilborn said, that level of experience comes from engaging with real-world examples involving complicated, difficult legal cases.
“In virtually every one of my law classes, I try to put that scalpel in my students’ hands and ask them: What do you do?”
“These hypotheticals,” he explained, “really force students, future lawyers, to be confronted with the messy reality they’ll be faced with in the outside world.”
But after this hypothetical, with no warning or attempt at communication to discuss the issue, the Black Law Students Association denounced Kilborn to the dean, the administration, and the media for the single expurgated exam question. The association called his use of the redacted slurs “inexcusable.”
In January, just before the first class on the first day of spring semester, UIC’s administration abruptly suspended him. He said they refused to explain the basis for the indefinite suspension, despite being asked.
“This hits you like a ton of bricks,” said Kilborn. “It was totally unexpected. You’re totally isolated.”
* * *
On Jan. 19, FIRE called on UIC Chancellor Michael D. Amiridis to reject “any intent to punish Kilborn over his protected expression.” FIRE gave UIC a good-faith opportunity to back off Kilborn and to reaffirm his academic freedom rights.
UIC responded to confirm that it was, in fact, conducting an investigation into Kilborn’s exam and rejecting our concerns about his academic freedom rights. The move earned UIC a spot on FIRE’s annual list of the 10 Worst Colleges for Free Speech, as well as pointed criticism from outlets and commentators across the country.
* * *
FIRE connected Kilborn with a local attorney, Wayne Giampietro. With help from the FLDF team at FIRE, the pair reached a resolution with UIC. Kilborn agreed to alert the dean before responding to student complaints about racial issues, and the audio of his classes would be recorded — both stipulations Kilborn welcomed in order to protect himself against spurious complaints, and one he’d already decided to take independently.
Kilborn strongly objected to mandatory sensitivity training or signing a non-disclosure agreement that would have barred him from publicly commenting about the ordeal. He said it’s thanks to the credible threat of action by an FLDF attorney that the administration’s final resolution did not contain these elements.
“The resolution in my case was like most good compromises — it pleased no one, so it must have been the right one,” he said. “The average person doesn’t enjoy fighting. If I enjoyed fighting I would’ve remained a lawyer. I was tired of it, emotionally tired of it. I’m grateful for FIRE’s backing, both moral and financial, without which I don’t know how I would have made it through the hell of these last six months.”
Case close, right? No, it’s never case closed.
Despite the apparent agreement, UIC is now demanding that Prof. Kilborn go through re-education on “inclusion” including by taking a course taught at …. you’ll never guess where … seriously, you’ll never guess.
University of Chicago Law School Law Professor Brian Leiter reports (h/t TaxProf), Univ of Illinois-Chicago has gone crazy: the latest on the Kilborn case:
Last Friday, the university informed Professor Kilborn’s lawyer that Professor Kilborn would be suspended from teaching this Spring at UIC’s John Marshall Law School (although still paid, and still required to perform administrative duties) so that he can participate in rather time-intensive “re-education” programs: Download 21; 12.16 from Alsterda
Professor Kilborn will be subjected to an 8-week indoctrination course–20 hours of coursework, required “self-reflection” (self-criticism?) papers for each of 5 modules, plus weekly 90-minute sessions with a trainer followed by three more weeks of vaguely described supplemental meetings with this trainer. Since the trainer will provide “feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program,” disagreement or skepticism about the content of the program is presumably not welcome.
This is simply chilling.
Here is some of the text of the letter delivered December 16 to Kilborn’s lawyer Wayne Giampietro from John B. Alsterda, UIC Legal Counsel (emphasis added)
…. I would like to take this opportunity to set forth in writing the individualized training and coaching for Professor Kilborn to facilitate his return to the classroom, as well as additional important developments for the Law School community. I am providing this information to you outside of the Rule 408 communications we have had to date.
• Professor Kilborn will be enrolled in Cornell University Center for Teaching Innovation, “Teaching and Learning in the Diverse Classroom Online Course.” Information about the course can be found here: https://teaching.cornell.edu/programs/faculty-instructors/workshops-and-other-opportunities/teaching-learning-diverse-classroom. The course consists of 5 modules spanning 5 weeks. Each module requires an approximate time commitment of 2-4 hours.
• The modules will also be supplemented by readings, podcasts, and/or videos.
• After completion of each module, Professor Kilborn will be asked to prepare a written self-reflection paper in response to specific prompts.
• In conjunction with his Cornell coursework, the Law School is retaining an instructional advisor to work with Professor Kilborn one-on-one. The advisor is a practicing attorney with significant experience in employment law and diversity and inclusion consulting and has a sub-specialty in higher education matters. In furtherance of her work in this area , the advisor has taken a similar Cornell course in diversity and inclusion and has earned a certificate in Diversity and Inclusion from Cornell similar to the one Professor Kilborn will earn. The instructional advisor will connect with Professor Kilborn weekly, preferably via zoom, although they may decide in-person meetings are more effective (taking COVID-safety protocols into account). These meetings will consist of 60 to 90-minute sessions to discuss the Cornell modules and supplementary assignments, to provide feedback on reflection papers, and to discuss the assignments, answer his questions and offer insights. In addition, the advisor will assess whether Professor Kilborn is gaining insight, learning, and competencies in the subject matter presented, with a particular focus on applying the course content to his work responsibilities as a faculty member.
• Following the 5-week Cornell course, Professor Kilborn will be provided with additional supplementary material and will meet with the instructional advisor weekly to discuss the material. During the course of the program, the instructional advisor will also provide feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program. The common goal is to return Professor Kilborn to the classroom. The Law School is committed to ensuring that the entire Law School community benefits from a diverse, equitable and inclusive environment.
The letter then says this is not “punitive” but that Prof. Kilborn would not be allowed to teach his classes while he underwent the training:
In creating this program, we again want to stress that it is not punitive. However, we believe Professor Kilborn will benefit from this type of one-on-one training and coaching, particularly in working with a practicing attorney along the way. We note that faculty, administrators, and executives routinely engage in these programs as a means of continuing their education and broadening their skillset.
The program can start in January 2022 and will run approximately 8 weeks in total. Therefore, Professor Kilborn’s classes this Spring will be taught by other faculty, and he will continue his scholarship work, and substantive academic service work important to the Law School….
And last not but not least, the letter let Prof. Kilborn know that if he sued, the university (funded by taxpayers) would fight him to the death (my characterization):
As I am sure you can appreciate, litigation is time consuming, expensive, and cedes authority for resolution to a third party; whereas following the above approach allows the parties to maintain control of the outcome in what is hopefully a cooperative process. We are not asking that Professor Kilborn waive, relinquish, or release any claims that he may believe he has; but should Professor Kilborn decide to pursue those claims in court, the University will vigorously defend against them.
This is nothing short of an attempt to humiliate Prof. Kilborn through a reeducation and supervisory program that would make Maoist Red Guards blush.
This is repressive and abusive. UIC John Marshall Law School is a disgrace. Prof. Brian Leiter was too kind in saying UIC Law School “has gone crazy” and its conduct is “chilling.”
I reached out to Prof. Kilborn’s counsel to see if there had been any change in the last few days, but as of this writing, have not heard back. We will continue to follow the case.
Pepperdine Law School Dean Paul Caron, author of TaxProf Blog, has done yeoman’s work documenting Prof. Kilborn’s saga. Here are TaxProf’s links:
- Controversy At UIC Law School Over Use Of ‘N And B (Profane Expressions For African Americans And Women)’ On Fall Civ Pro Exam (Jan. 16, 2021)
- Is This Law Professor Really A Homicidal Threat? (Jan. 20, 2021)
- Jason Kilborn, UI-Chicago Law School Settle Controversy Over December 2020 Civ Pro Final Exam Question (Sept. 13, 2021)
- When Suspending A Law Professor Isn’t Enough (Nov. 11, 2021)
- Koppelman: This Is A Witch-Hunt Against A Tenured Law Professor (Nov. 18, 2021)
- Koppelman On The Yale And UIC Law School Controversies (Nov. 29, 2021)
- Academic Freedom Alliance And Brian Leiter Weigh In On How The University Of Illinois-Chicago Has Handled Student Complaints Against A Tenured Law Professor (Dec. 7, 2021)
- ABA Journal, UIC Law Prof Must Receive Online Diversity Training, Coaching Before Classroom Return, Letter Says
- Legal Skills Prof Blog, The Gulag University of Illinois-Chicago
- Keith Whittington (Princeton), Things Get Worse at the University of Illinois at Chicago
- University Of Illinois-Chicago Law School Reassigns Jason Kilborn’s Spring Classes While He Undergoes Mandatory Diversity Training (December 20, 2021)
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