Jason Kilborn is a law professor at the University of Illinois-Chicago Law School. In late December 2021, I wrote a detailed report about The Cruel and Unusual Punishment Of Prof. Jason Kilborn by U. Illinois-Chicago John Marshall Law School:
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.
Each incident of higher ed abuse is unique, and the treatment of Kilborn involved uniquely vindictive, malicious, and cruel conduct by students and adminstrators. Please read my prior post for the gory details. The short version is that Prof. Kilborn used the “n” and “b” words on an exam as part of a hypothetical about employment discrimination. Not the words themselves, but literally the letters “n” and “b”, something he had done for years.
Then the UIC Black Law Students Association launched a campaign to get him fired; the administration tried to impose a reeducation requirement, but ultimately struck a deal that Prof. Kilborn would not have to go through such training.
As student protests continued to mount, and the accusations expanded, the law school reimposed the reeducation requirement and then some — Prof. Kilborn would be tested, and monitored, and have someone assigned to make sure he not only was complying, but was professing his personal beliefs in the indoctrination and apologizing for his errors. It was Red Guard stuff, as I wrote:
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.”
Now Prof. Kilborn has sued, as announced by the Foundation for Individual Rights in Education (FIRE). And there’s a twist I was not previously award of, the reducation program UIC demanded Prof. Kilborn attend used the terms, wait for it, “N” and “B” to signify pejoratives — the very terms for which Prof. Kilborn was being disciplined.
From the FIRE announcement (emphasis added):
Law professor Jason Kilborn forges ahead in the battle to vindicate academic freedom rights at University of Illinois Chicago, which punished him for a test question that included two redacted slurs.
Today, Kilborn filed a First Amendment lawsuit against UIC. He is represented by Wayne Giampietro, an attorney in the Foundation for Individual Rights in Education’s Faculty Legal Defense Fund network.
“The only thing that will hold UIC accountable for its unconstitutional actions is a lawsuit,” said Kilborn. “FIRE’s Faculty Legal Defense Fund gave me the strong medicine of real legal action, and UIC has given me no choice but to use it.”
UIC suspended and launched an investigation into Kilborn after he posed a hypothetical question — which he has asked in previous years — using redacted references to two slurs, in a December 2020 law school exam. The question about employment discrimination referenced a plaintiff being called “a ‘n____’ and ‘b____’ (profane expressions for African Americans and women)” as evidence of discrimination. But even redacting the terms didn’t save Kilborn from discipline by university administrators.
Kilborn reached a resolution with UIC in July, in which he agreed to alert the dean before responding to student complaints about racial issues and to audio-record his classes. Kilborn welcomed both of these stipulations in order to protect himself against spurious complaints, and had already decided to take those actions independently. As part of that resolution, Kilborn and UIC ultimately reached an understanding that Kilborn would not have to attend sensitivity training.
However, in November, under pressure from UIC’s Black Law Students Association and Jesse Jackson, UIC reneged on its agreement with Kilborn and is now requiring him to participate in months-long “training on classroom conversations that address racism” and compelling him to write reflection papers before he can return to the classroom. In a stunning display of unintended irony, the individualized training materials include the same redacted slur that Kilborn used in his test question.
“UIC crucifies Kilborn for using a redacted slur, then turns around and forces him into anti-racism training that uses that same slur,” said Ronnie London, head of FIRE’s Faculty Legal Defense Fund. “Kilborn is effectively showing up to re-education and being handed his own text.”
By requiring Kilborn to submit to ideological re-education, not only has UIC violated his right to academic freedom, but it has also gone back on its original agreement with Kilborn.
“Kilborn did nothing wrong to begin with, but UIC has done everything wrong,” said Giampietro, Kilborn’s attorney. “UIC has proved itself to be both illiberal and disingenuous, and it’s past time to follow through on our threat of legal action.”
The Complaint provides a detailed timeline of the events. This paragraph reflects the unwinnable bureaucratic battle that gets fought, where disproving the allegations are not enough, the feelings of the accusers takes precedence:
29. After concluding that allegations of racial discrimination had not been substantiated, OAE concluded that Plaintiff had nonetheless violated the harassment aspect of UIC policy because his final exam question and his “responses to criticism of the final exam question” had “interfered with Black students’ participation in the University’s academic program and therefore constituted harassing conduct that violates the Policy.”
The complaint then goes into secret (and he says false) allegations made against him as part of an investigative report, and what he says was the law school Interim Dean’s reneging on an agreement that he could avoid a reducation requirement:
45. On December 17, 2021, Plaintiff was finally informed that he was to be summarily suspended from teaching for the entire Spring, 2022 semester again with no hearing or prior notice. His Bankruptcy class was cancelled, and his Secured Transactions class was reassigned to another professor with no experience teaching the course.46. At that time, Defendants declared that Plaintiff would be subjected to an 8- week diversity course 20 hours of course work, required “self-reflection” 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. The trainer would provide “feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program.” Only upon satisfactory completion of this program would Plaintiff be allowed to return to class in Fall, 2022.
Prof. Kilborn asserts violation of his First Amendment rights:
49. Defendants have purported to punish Plaintiff for speech that expresses “anger, dissatisfaction, and disappointment related to issues of race” or that “demonstrate[s] racial insensitivity and even hostility to those voicing concerns about a racially-charged topic.” This is a plainly unlawful, content based restriction on speech.50. The sensitivity training which Defendants have imposed upon Plaintiff also violates the First Amendment, as it compels Plaintiff to express his “commitment to the goals of the program” in order to be released back to teaching, even if he disagrees with the content and purpose of this diversity training.* * *54. Nothing stated by Plaintiff can even remotely be construed as a “true threat.”
He also asserts violation of Illinois law protecting academic free speech, and violation of the 5th and 14th Amendments:
68. The finding by OAE that Plaintiff is guilty of “harassment” is based upon an assertion which is hidden from Plaintiff and is arbitrary and capricious and, as OAE admits, “is broader than applicable law.” Such an admission runs afoul of both the federal and state protections of free speech, due process and equal protection.69. Punishing Plaintiff for violation of a policy with no stated substance and no advance notice or guidance is an arbitrary and capricious abuse of authority. Such abuse undertaken under color of state law violates Plaintiff’s constitutional rights to fair notice and due process.
I reached out to the Interim Dean and the Chancellor for comment about the lawsuit, but have not received a response as of this writing.
Having covered dozens of these cases over the years confirms a point I make time and again in speeches: College and University administrations are just large corporations whose business happens to be education. They are every bit as malicious and aggressive as an industry as any other industry, maybe worse because higher ed often is driven by ideology, not profits. They are true believers in their own righteousness even when they clearly are wrong.
And they are prodigious litigants, fighting to the bitter end to punish dissidents. Just look how aggressively higher ed fights suits by wrongly accused male students convicted in campus kangaroo courts even where the evidence is clearly on the side of the accused. Then they hide behind the shield that “we’re educators,” as if that excuses their misconduct.
We will continue to follow this and other cases.
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