First Amendment
Law prof suspended over exam question, class discussion can sue for First Amendment retaliation, 7th Circuit says
A federal appeals court has revived a First Amendment retaliation claim by a professor at the University of Illinois Chicago School of Law who used an “expurgated racial slur” on an exam question, leading to an investigation, required diversity training, a suspension and denial of a pay raise.
The 7th U.S. Circuit Court of Appeals at Chicago ruled Wednesday in a lawsuit by professor Jason Kilborn, whose 2022 suit was dismissed in December 2023.
His federal suit had alleged retaliation for constitutionally protected speech, due process violations of the 14th Amendment and state law violations.
A university professor’s academic speech is entitled to qualified First Amendment protection under U.S. Supreme Court precedent, the 7th Circuit ruled Wednesday in an opinion by Judge Thomas Lee Kirsch II, an appointee of President Donald Trump during his first term.
“We conclude that Kilborn has plausibly alleged that his speech is constitutionally protected and reverse the dismissal of his claim,” the appeals court said.
Because the appeals court revived the retaliation claim, it also vacated a federal judge’s refusal to exercise supplemental jurisdiction over the state law claims and ordered further consideration.
The university had found that Kilborn violated the harassment section of its nondiscrimination police after an investigation that followed the controversial exam question.
The December 2020 final exam in civil procedure included a hypothetical in which a plaintiff alleged that her managers had called her a “n- – – – -” and a “b- – – -.” Kilborn’s exam included only the first letter of the word followed by underlined blanks. Some students were upset by the question.
The university then investigated allegations that Kilborn created a racially hostile environment for minorities in a class that he taught two semesters earlier by commenting on “cockroaches” and a “public lynching.”
The cockroach comment was part of a discussion on why defendants sometimes settle frivolous cases. The media only covers frivolous cases when the defendant loses, not when the defendant wins, he said. Kilborn said defendants fear that the public will learn about losses in frivolous cases, and “then all the cockroaches come out of the walls, they’re thinking, right?”
In the same discussion, Kilborn said, “I’m not subjecting my corporate bottom line to that public lynching; I’m sorry, that’s not the right word to use.”
In a different discussion on race-based traffic stops, the appeals court said, “Kilborn used an African American Vernacular English (AAVE) accent while repeating the lyrics of a Jay-Z song, which describes the pretextual stop of a young Black man (‘You was doin’ 55 in a 54.’).”
In response, the university refused to give Kilborn an across-the-board 2% merit raise and said he could not return the classroom until he completed an eight-week diversity training program.
Kilborn’s exam question, as well as other remarks investigated by the university, “address matters of public concern, notwithstanding the limited size of Kilborn’s audience,” the 7th Circuit said.
“The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom,” Kirsch wrote. “The content, form and context of the exam question give no indication that it involved a matter of private concern, rather than serving broader pedagogical purposes. Kilborn’s in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops.”
Hat tip to Law360, which covered the decision.
See also:
UIC law prof must receive online diversity training, coaching before classroom return, letter says
Court dismisses part of UIC law prof’s civil rights lawsuit
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