Professor Can Continue with First Amendment Claim Over Denial of Raise for Including Expurgated Slurs on Exam
From yesterday’s decision by Seventh Circuit Judge Thomas Kirsch, joined by Judges Ilana Rovner and David Hamilton, in Kilborn v. Amiridis:
This appeal arises out of a motion to dismiss, so we accept the well-pleaded facts in the complaint as true and draw all reasonable inferences in the plaintiff’s favor….
Jason Kilborn is a tenured professor at the University of Illinois Chicago School of Law, where he regularly teaches a course on civil procedure. For the past decade, he has included the same question on the final exam. The question concerns a fictional former employee who says 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.” The exam question appears exactly like this, with the racial and gender slurs expurgated.
Unlike in prior years, students who took the exam in December 2020 were upset by Kilborn’s use of the expurgated slurs and shared their displeasure with the law school dean. In response, Kilborn reached out to students to discuss the exam question. He sent a note of regret to his class for any distress caused by the expurgated references, exchanged emails with a student about the incident, and participated in a cordial, constructive, four-hour Zoom meeting with a member of the Black Law Students Association (BLSA).
During the Zoom meeting, the BLSA member asked Kilborn why the dean had not shown him a student petition criticizing the exam question. Kilborn replied that perhaps the dean had not shared the petition with him because she feared he might “become homicidal” if he read it. Kilborn made the comment in jest, and the conversation continued for another three hours without any indication that the student felt threatened or distressed by the statement. However, the student later told the dean and other University administrators that Kilborn had said that he “was feeling homicidal” or “would become homicidal.”
Asserting that they feared a possible threat of imminent violence, University officials placed Kilborn on indefinite administrative leave, cancelled his classes for the term, and barred him from campus. Kilborn was ultimately released to unrestricted duty a few days later, but only after he submitted to drug testing and a medical examination. His classes remained cancelled. Kilborn believes that the University officials’ concern about his homicidal jest simply provided a pretext to punish him for his exam question and to mollify complaining students.
The University’s response to Kilborn’s controversial exam question did not end there. It opened an investigation into allegations that Kilborn had created a racially hostile environment for non-white students. As part of the investigation, the University reviewed comments Kilborn had made in a class he taught two semesters earlier. There, Kilborn had discussed the relationship between frivolous litigation, plaintiff incentives, and media coverage:
The fact that other plaintiffs see that one other plaintiff lost isn’t a disincentive. If it were, frivolous litigation would have ended long ago, because lots of plaintiffs have been pushed to the wall and lost. You don’t hear about those stories in the media. You hear about idiot people winning $1 million ver
Article from Reason.com
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