Bad Education

In a case that began with an exam question, the University of Illinois at Chicago canceled a law professor’s classes last spring and found that he’d violated the campus nondiscrimination policy. The professor, who apologized for the exam question but denied other allegations against him, would have been back in the classroom this fall, were it not for a long-planned sabbatical.

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. The group has staged a series of protests, including a rally on campus last week that featured the Reverend Jesse L. Jackson.

“Students deserve an environment that’s not hostile,” Jackson said during the rally. “We must act. We will act.”

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.”

Kilborn, who is white, said that Jackson’s visit to campus was “inspiring” and deserving of attention. But he says the “false accusations against me are awful and should not be disseminated uncritically.”

Kilborn’s case has become about much more than the initial exam question, with some students saying he represents much of what’s wrong with higher education, and Kilborn saying the same thing—for very different reasons.

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.

What did happen, for sure, is that in December 2020, Kilborn wrote the following question into an exam for his civil procedures class, just like this:

After she was fired from her job, Plaintiff sued Employer under federal civil rights law, claiming employment discrimination on the basis of her race and gender. Employer also revealed that one of Plaintiff’s former managers might have damaging information about the case, but no one at Employer knew where that former manager was, since she had abruptly quit her job at Employer several months ago and had not been heard from since. With nothing to go on but the manager’s name, Employer’s lawyer pieced together several scraps of information and concluded that this former manager must be located in a remote area of northern Wisconsin. Employer’s lawyer spent $25,000 to hire a private investigator, who successfully located the former manager in northern Wisconsin. 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 [another discovery demand, omitted, and] 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?

In a series of interviews, Kilborn said he’d never used this particular example prior to the exam in class discussions, but that he’d included the same question on his civil procedures exam in other semesters, with no incident. He also said that upon learning that this question had upset some students last fall, he subsequently apologized to the class via email. Yet Kilborn said that employment discrimination is among the most common topics of federal civil litigation, so the question was “certainly appropriately contextual. I was also trying to acknowledge the challenges that women of color still face in the workplace and the important role of civil procedure in discovering and addressing these wrongs.” Again, Kilborn wrote the question as it's written above, without spelling out the offensive language.

To this day, Kilborn does not know the identity of most of the students who complained about him to the university, including about the test question. Most of the allegations against him have been voiced, at least publicly, by the BLSA, citing unnamed students.

According to a statement by the BLSA, for instance, one student read the exam question and said he felt like he “no longer belonged at the law school.” Per the BLSA, another student said she’d experienced heart palpitations.

A few days before Christmas 2020, Kilborn’s dean asked to meet with him to discuss the matter, but no disciplinary action was taken at that time. A few days after Christmas, the BLSA posted the statement about Kilborn, explaining the history of the N-word and demanding that the law school adopt “an unambiguous policy with guidelines prohibiting offensive and culturally insensitive language in the classroom by professors,” beginning immediately.

The statement also said Kilborn should step down as chair of the school’s academic affairs committee and any other committee appointments, because “someone who exhibits such poor judgment should not be able to hold an additional position of power.”

The BLSA further asked for a moderated dialogue with Kilborn, and that mandatory courses within the law school be taught by multiple professors, to avoid forced interaction with professors with a “history of bias.”

Kilborn said he was shocked by the statement and sensed that there had been some kind of big “misunderstanding.” Following one conversation with a colleague about how to proceed, he said he agreed to speak with a student leader of the BLSA, whom he did not know, ahead of the new semester to clear the air. One of Kilborn’s concerns was that he wanted people, members of the BLSA included, to know that he had tried to avoid offending students by using abbreviations for the epithets in his exam, not the full words.

The meeting with the BLSA leader happened over Zoom on Jan. 7, one day after the attack on the U.S. Capitol. Kilborn didn’t record the four-hour conversation, but he said he thought it had gone relatively well and ended amicably, with an agreement that the conversation would continue.

Several days later, Kilborn was again summoned to a meeting with his dean, during which he was placed on paid leave, effective immediately, and banned from campus. He was also told that his teaching assignments for the spring semester were canceled.

Only days later was Kilborn informed why he’d been suspended, he said: about 90 minutes into the Zoom meeting with the BLSA leader, the student asked him if the dean had shown him the BLSA statement. Kilborn, who says he’s an “animated, emotional person,” said the dean had not shown him, and that “maybe she’s afraid if I saw the horrible things said about me in that letter I might become homicidal.”

This was arguably a foolish thing to say in the context of the conversation, to a student who didn’t know Kilborn well, the day after the attack in Washington, or in any one of those circumstances. But Kilborn argues that it is outlandish to have interpreted his comment as a real threat, not least of all because the conversation continued for hours.

In any case, BLSA reported Kilborn’s “homicidal” comment to the university, which took it as a possible threat. Kilborn was required to meet with mental health workers for a two-part assessment, once at a medical facility and once over Zoom, before his campus ban was lifted a few weeks later.

While he was allowed to return to campus after that, his spring courses had already been canceled or reassigned—and he remained under investigation for the duration of the semester.

A Bigger Inquiry

During the investigation, the university informed Kilborn that six students, most unnamed, and one professor now alleged that he’d called minorities “cockroaches,” “diminished” a Black woman on the basis of her accent, used African American Vernacular English, imposed a racially discriminatory grading policy, referenced social media “lynchings,” and more within the last year.

Some of the allegations were unspecific, making it hard for Kilborn to defend himself, he said. He denies ever calling anyone cockroaches, or using that word in class. He says he once said “Bonjour” to a Black student whom he believed to be from the French Caribbean, but that he never made fun of her accent. He also says he once used a Jay-Z rap lyric to “connect” with students about a case (“You was doing 55 in a 54,” goes Jay-Z’s “99 Problems” line about a police encounter), but that students laughed at the time.

As for the allegedly discriminatory grading policy, Kilborn says that he typically uses a grade-based incentive to get students to participate in class. While he questioned doing that during COVID-19, he said he did offer that incentive to students who attended classes in person, as opposed to remotely (he says he also asked his remote students to suggest ways to similarly boost their grades, but no one shared ideas). He scrapped the policy, however, after the dean raised this with him during the initial meeting about the test question, on the grounds that some student or students said this policy unfairly impacted nonwhite students due to the disparate impact of COVID-19 on communities of color. In the end, he bumped up everyone’s grade.

As for the lynching comment, Kilborn says he did use that word in class, in reference to a case involving allegations that a bank had denied a Black woman a mortgage loan in a conspiracy to undervalue her home. Kilborn said he asked the class to consider the bank’s perspective in weighing whether or not to to settle with the woman, regardless of the merits of her case—including the possibility of a news media “lynching” against the bank.

He said he immediately realized he’d used a harmful term and apologized to students on the spot.

After several months, UIC said it had substantiated some of the complaints against Kilborn and that his conduct, considered cumulatively, “affected many Black students and substantially interfered with their participation in the university’s academic program.” UIC hasn’t provided Kilborn a copy of any investigative report, even a redacted one, just its findings. Those findings also reference a letter that Kilborn wrote to a former, graduating student of his who had signed a BLSA statement about him.

According to UIC, this letter, combined with the comments to the student over Zoom, expressed Kilborn's “anger, dissatisfaction and disappointment” about the situation and “created fear and intimidation.”

Kilborn said he sent the letter in question to a former student and mentee, who is white, because he was surprised and hurt to see her name on the BLSA petition. He said the idea that this letter was retaliatory never crossed his mind because it was a private communication and the student was leaving the university.

“I’m not criticizing you, and it hurts that anyone would even dream that I would seek retribution against anyone about all of this—all of these people are and will always be welcome in my classes,” Kilborn wrote in that email. “But a few of the familiar names on that letter—with not one person ever, ever reaching out to me—is painful beyond description … I feel like my extended hand of help has been bitten off.”

In sum, UIC determined that Kilborn was perceived as offensive toward nonwhite people, that he’d been “objectively offensive” and that he’d taken an “emotional toll” on nonwhite students and their supporters, who felt “threatened.” He was also told to comply with a policy prohibiting retaliation going forward.

The investigation ended in May, soon after which Kilborn went on sabbatical.

In response to renewed student attention to the case, Julie Spanbauer, interim dean of the law school, and Javier Reyes, provost, recently wrote to student groups, including the BLSA, that “several measures were necessary moving forward that are reflective of the fact that a policy violation (but not a legal violation) was found. They include mandated continuous review of class recordings, ongoing oversight and enhanced reporting requirements of [Kilborn’s] engagements and communications with students.”

Such measures are “intended to maintain a non-discriminatory, non-harassing classroom environment,” Spanbauer and Reyes wrote. “Compliance with these measures is being closely monitored by UIC Law, so that any potential deviations will be immediately addressed.”

In all aspects of the case, they also said, “applicable processes and policies were followed. Consistent with the University of Illinois System Guiding Principles, UIC is firmly committed to fostering a healthy learning environment for our students and has worked to protect the health and safety of all members of the university community while also recognizing the free speech and academic freedom rights of faculty and students. As a means to foster a healthy learning environment, we will coordinate a meeting with UIC Law students, staff and faculty, and the UIC Office for Diversity, Equity & Engagement to establish a concrete plan to respond to collective concerns about climate, address bias training needs, build consensus on communication and create transparency and accountability.”

In response to requests for comment about the case, UIC sent a similar statement via email.

The Black Law Students Association did not immediately respond to a request for comment.

Kilborn says he’s conflicted about his return to the campus, in that he’s glad the university let him know he’d “rubbed students the wrong way,” but that the process has been less than illuminating, as well as damaging and frustrating.

“To whoever was in my class, who actually did read this exam of mine and actually had a negative reaction, I do feel bad about that. And I don’t want that to happen again,” he said. “But here’s the juxtaposition part. None of these people who have attacked me in that petition was in my class … I think they’re really battling about something other than me, but they chose to have me be the victim of their enormous attack.”

Kilborn also said he regretted that no student addressed the matter with him personally before taking it to the university, or to social media. His general observation: that when it comes to being “woke, an essential part of that culture is not having any conversation with someone who you think offended you. It’s just, ‘I’m going to demonize you and I will attack you mercilessly and relentlessly until I get what I want, period.’ So that’s what I’m afraid of.”

Kilborn isn’t the first white professor to be called out for discussing the N-word, even euphemistically, in class in recent years, even when it appears in texts written by Black authors. In response to increased concerns about how this word affects students and their ability to absorb the corresponding material, some professors say they won’t use it at all in class unless it’s essential to the course content.

Kilborn, for one, says he’ll stop using that test question. But he says his case is part of a larger pattern of calls for professors who have offended students to be disciplined or fired, without the offended parties first attempting to address the matter directly with the professor, or at least out of the public eye.

Bright Sheng, Leonard Bernstein Distinguished University Professor of Composition at the University of Michigan, for instance, faced criticism from students and others  this fall after he showed a class the 1965 film version of Shakespeare’s Othello, which stars white actor Laurence Olivier in blackface. The university has said it won’t launch a formal investigation into the incident, but Sheng isn’t teaching anymore this semester. According to Michigan, that was a mutual decision, but the university now faces criticism from Sheng’s supporters.

The flip side to this dynamic is that many students find open letters and social media to be effective in forcing institutional attention to issues that have been historically ignored. Many student activists say it shouldn’t be up to them to educate professors about what’s offensive and what isn’t, either, and that now is the time for action on equity, diversity and inclusion.

A petition by the BLSA about Kilborn says, for instance, “We do not have time for band-aid solutions. We need surgery and this operation is not up for debate. Act now.”

The Foundation for Individual Rights in Education, which defended Kilborn via its new Faculty Legal Defense Fund, maintains that ever investigating Kilborn over an exam question was a violation of his academic freedom. Earlier this year, FIRE put UIC on its annual list of the 10 Worst Colleges for Free Speech.

“Facts are the lifeblood of legal analysis, so much so that trying to run a law school without specific fact patterns in hypothetical exercises is like trying to run a medical school without diagnostic tests,” FIRE wrote on that list about UIC. “Kilborn obliquely identified the slurs without using them; a student said she had ‘heart palpitations,’ more called for his punishment, and the school opened an investigation. UIC has functionally chilled the ability of its professors to teach the tough subjects.”