Last semester, Kilborn gave an examination in “Civil Procedure II.” One of the test’s 50 questions offered a hypothetical in which a company, sued for discrimination, had obtained evidence that damaged its own defense. The question was whether the company must disclose that evidence to the plaintiff if requested — an ordinary question of law, entirely appropriate for an exam. In the scenario described on the exam, a former employee told the company’s lawyer “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.” The exam did not spell out those words, which appeared exactly as you just read them. (The answer, by the way, is yes: The company must disclose the information if it is asked for probative evidence.)
Kilborn has used the same question for years, but this time it provoked an uproar. One student declared that on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association went to the law-school dean and to the central administration, demanding that Kilborn be stripped of his committee assignments. It denounced him on Instagram, LinkedIn, and Twitter, and filed a complaint with UIC’s Office for Access and Equity.
This is the sort of overreaction that calls for firmness on the part of the administration. John Marshall Law School, which was founded in 1899 and recently merged with UIC, is the only public law school in Chicago. If lawyers are going to be competent to do their jobs, they must be able to cope with the fact that humans sometimes do and say very bad things. Discrimination is among those bad things.
Students must thus be able to see the facts of discrimination lawsuits, and be able to perform legal analysis in the face of those facts. In the real world, racist slurs are not bowdlerized as they were on Kilborn’s exam. He did nothing inappropriate. A sensible and responsible administration would have told the students that.
Here’s what it did instead, according to Kilborn:
“In a 2-minute Zoom meeting at 8:30 am Tuesday, my dean placed me on indefinite administrative leave, all my classes were cancelled
hours before one was set to meet for the first time (with 70 students curtly told to find another course, I’m told), my committee memberships were cancelled (including University Promotion & Tenure, to which I was unanimously elected by my faculty peers), and I’m barred from campus and from all faculty communications.”
Kilborn was given no explanation for these sanctions, although the law school told Above the Law that it “acknowledges that the racial and gender references on the examination were deeply offensive. Faculty should avoid language that could cause hurt and distress to students.”
But Kilborn did avoid language that could cause hurt and distress to students. He censored the words. He did, concededly, allude to the words in a way that made it easy to know what they were. But if that is “deeply offensive,” punishable behavior, how is it ever permissible for a professor to take note of the fact that racial slurs exist? How is one to teach a course in antidiscrimination law?
When students make unreasonable demands, a law school has an obligation to protect its faculty.
Evidently she thought that the forthcoming clarification would put the law school in a better light. It doesn’t. The next day, Kilborn reported this:
“While the battle over the exam language continues, it turns out I was actively misled into believing my suspension was related to that language.
“On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me. Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA’s attack letter, and I flippantly responded, ‘I suspect she’s afraid if I saw the horrible things said about me in that letter I would become homicidal.’ Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.
“He apparently turned around and reported that I was a homicidal threat. Our university’s Behavioral Threat Assessment Team
convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus. […] Having full discretion to implement or reject that recommendation, and knowing me fairly well, having worked with me quite a bit for the past four years, my dean decided that I was, indeed, a homicidal threat.”
After that, Kilborn says, the dean placed him on administrative leave but refused to reveal the reason why. The Office for Access and Equity (which, Kilborn says, “is oddly in charge of threat assessment”) also waited five days to explain what had happened and why. “The discrimination complaints about my exam, my dean’s support of those complaints, and the OAE’s investigation of potential action against me on that separate basis is proceeding,” Kilborn says. “The outrage that has been expressed about that whole debacle can and should continue, but as it turns out, I have not YET been suspended summarily on the basis of that exam question.”
The university cannot possibly suspend and bar from campus everyone who uses the occasional violent figure of speech. Such metaphors are common in casual conversation. In context, no reasonable person could take his language literally (assuming that his report of what he said is accurate). Even if one did take it literally, his statement was a speculation about the dean’s state of mind, not a statement about his own.
Policies of mandatory investigation are warranted when students report threats. But there needs to be an available mechanism of summary dismissal when such reports turn out to be frivolous. John Marshall Law School has two such mechanisms: First, the Behavioral Threat Assessment Teams are charged with determining whether threats are genuine, and, second, the dean has discretion to accept or reject their recommendations. It is hard to believe that Dean Dickerson would have reacted the same way if Kilborn’s exam had not already provoked controversy. The complaints about the exam were apparently not sufficient to trigger the sanctions that might mollify the complaining students. The purported threat, however, offered that opportunity.
Given that this whole incident was occasioned by a “Civil Procedure” exam, it is hard not to remark upon the denial of due process. Kilborn has been given no opportunity to defend himself. When students make unreasonable demands, a school has an obligation to protect its faculty. The law school’s behavior is reminiscent of indiscriminate blacklisting during the McCarthy era.
The administration’s behavior creates a climate of terror. Faculty have been asked at many colleges to give more attention to issues of racial inequality. But how are they to do that without acknowledging distressing facts? Randall L. Kennedy and Eugene Volokh have argued that a ban on quoting epithets in the classroom is in tension with norms of accuracy and precision in the use of sources. They fear that the new norms will impede frank classroom discussion. This sorry episode supports that claim.