Law Professor Sues After Being Disciplined for Racially Insensitive Use of Language

For at least ten years, Professor Jason Kilborn (left) of the University of Illinois Chicago Law School included on his exam for Civil Procedure a question involving a woman who quit her job after her co-workers addressed her using profane expressions for African Americans and women. In the exam, only the first letters of each profane word was used, but the context made it clear what words were used in the fact pattern. In 2020, for the first time, students were so upset by the references that they complained to the dean.

Professor Kilborn seems to have done his best to make amends. He sent a letter of apology to the class, exchanged e-mails with students, and participated in a four-hour zoom call with representatives from the Black Law Student Association (BLSA), which the Court describes as “cordial” and “constructive.” However, early in that conversation Professor Kilborn joked that the dean had not shared information with him because he might “become homicidal.” When the BLSA students reported this to the administration, Professor Kilborn was placed on administrative leave and banned from campus. He was allowed to return a few days later, after submitting to a medical examination and drug testing.

The administration’s investigation into the matter turned up other instances in which Professor Kilborn’s choices might have been racially insensitive. He was deemed ineligible for a 2% raise, and he was required to take an eight-week diversity training program before he would be allowed to return to teaching. Professor Kilborn believed the punishments unjustified and that the administration had gone into the investigation determined to discipline him. He sued, based on 42 U.S.C § 1983 and alleging violations of due process and free speech rights protected under the 1st, 5th, and 14th Amendments, as well as state law claims.

A District Court dismissed Professor Kilborn’s federal claims with prejudice and then declined to exercise jurisdiction over his remaining claims. In Kilborn v. Amiridis, the Seventh Circuit reversed the dismissal of Professor Kilborn’s First Amendment claim and vacated the dismissal of his state law claims.

In the context of public employees, the First Amendment analysis is set out in Connick v. Myers and Pickering v. Bd. of Education. The court must first ask whether the employee was speaking on a matter of public concern. If so then the interests of the employee and the government must balanced. However, under Garcetti v. Ceballos, employees do not speak on matters of public concern when they make statements pursuant to their official duties. While all of this seems a bit off in this context — is an instructor making a statement when they create a hypothetical fact pattern? — the Court focused on whether Garcetti applied on this facts. Fortunately, there is a simple answer to that question, because Garcetti does not apply to scholarship and teaching. This case is a good illustration of why that must be the rule. Nor are the university administrators entitled to qualified immunity on the issue, because the carve-out from Garcetti for teaching and scholarship is clearly-established law.

Turning to the pubic-concern question, the Court held that the District Court erred in its analysis in two respects. Because the First Amendment guarantees “unfettered” interchange of ideas, the District Court gave inadequate weight to the academic context in which Professor Kilborn’s expression took place. The Seventh Circuit found that all of the speech that got Professor Kilborn in trouble was academic speech addressing “matters of public concern, notwithstanding the limited size of Kilborn’s audience.” That seems to me clearly to be so in the context of the exam question. I don’t know how we can teach students how to handle sensitive matters if we can be threatened with disciplinary action when we present them with fact patterns that replicate the sort of uncomfortable situations that are the very stuff of civil rights law suits. Professor Kilborn had used that question without incident for ten years. If I were him, I would not use it in the future, but I can easily see why he did not foresee the students’ objection.  Second, the District Court focused on individual words and, in connection with another student complaint, his imitation of a distinct accent when quoting a Jay-Z song, rather than on the “overall thrust and dominant theme” of his speech.

Finally, the Court weighed Professor Kilborn’s interest in his speech against the university’s interest. The university undoubtedly has an interest in a safe learning environment, one in which students do not feel intimidated or subject to harassment. But factual disputes need to be resolved through the litigation process; the Court could not rule at this stage in the proceedings whether the university’s interest outweighed Professor Kilborn’s interest in free expression.

Professor Kilborn also alleged that the eight-week diversity training in which he was compelled to participate was compelled speech. His factual allegations were insufficient to support that claim, but in any case the university officials would be protected by qualified immunity from any such claim.

Professor Kilborn also argued that his suspension with pay and the university’s refusal to pay him a two percent salary increase constituted deprivations of procedural due process. The Seventh Circuit rejected both claims. It rejected the first because non-pecuniary harms do not give rise to procedural due process claims. It rejected the claim relating to the pay increase because that award was based on merit, and the university had discretion to award or withhold it. Professor Kilborn had no entitlement to the benefit. I’m not sure why that is the right outcome. If Professor Kilborn could show that he was denied his pay increase for an impermissible reason, then he could show that the university exercised its discretion in an arbitrary manner. Surely the fact that a university has discretion cannot mean that it can exercise that discretion to exact retribution for a professor’s exercise of protected speech rights.

The Seventh Circuit also rejected Professor Kilborn’s challenge to the university’s nondiscrimination policy as unconstitutionally vague. In short, the Court did not find the policy vague. However, if the university stretched its definition of harassment unreasonably, that could be the basis of a retaliation claim, such as the one that Professor Kilborn has alleged with his First Amendment claim. Professor Kilborn’s state law claims survive.