Friday, January 15, 2021
IMPORTANT UPDATE BELOW: PROFESSOR KILBORN WAS NOT SUSPENDED BECAUSE OF THE EXAM QUESTION
Last month, we noted UIC John Marshall Dean Darby Dickerson's suggestion "that law schools should be 'transformed' into 'anti-racist institutions' [as distinct from being non-racist ones that comply with equal opportunity laws]," observing that it "would portend a massive violation of the academic freedom of all faculty (for example)." Alas, this proved more prophetic than we realized.
Professor Jason Kilborn gave a civil procedure exam last month involving an employment discrimination hypothetical, in which one worker used racist and sexist epithets. As the petition denouncing Professor Kilborn reports:
The question at-issue contained a racial pejorative summarized as follows: “‘n____’and ‘b____’ (profane expressions for African Americans and women).” The fact pattern involved an employment discrimination case where the call of the question was whether or not the information found was work product.
Just to be clear: the exam neither used nor mentioned the actual offending words, just the first letters of those words followed by the underline, as quoted above. Professor Kilborn has actually used variations on this hypothetical, with the n- and b-words (as above), for a decade without any incident!
Rather than use this occasion to educate the students about what is and is not a valid complaint about an exam, Dean Dickerson apologized (!) to the students and, according to Professor Kilborn, moved immediately to sanction him. According to Professor Kilborn, he was--without due process or notice--"placed on indefinite administrative leave, all my classes cancelled hours before one was set to meet for the first time, my committee memberships cancelled (including University Promotion & Tenure, to which I was unanimously elected by my faculty peers), and I’m barred from campus. No explanation of what behavior warrants this flagrant violation of university procedure and basic fairness."
Professor Kilborn's exam hypothetical was clearly proper, and well within his academic freedom as a teacher to use. But to make matters worse, Professor Kilborn has been sanctioned without any due process, despite being a tenured member of the faculty. The AAUP and FIRE are likely to get involved in this case, and rightly so.
UPDATE (1/15/21): Professor Kilborn has written to me a bit before 4:30 pm CST as follows:
I’ve just learned my suspension has been a huge failure of communication from the university to me. 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. Mind you, we here at UIC are on a pandemic-related lockout, so NONE of our courses is conducted on campus, and I had no plan to come anywhere near campus for at least the next two weeks, until state authorities give us to go-ahead to return to campus. Nonetheless, 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 … and that’s where my earlier story picks up. She summoned me to a Zoom meeting at 8:30 am on Monday morning, and while both orally and in writing she attributed this action to complaints of “possible violations of University policies, including the nondiscrimination statement,” she REFUSED to reveal to me why I been placed on admin leave and barred from campus, with all of my classes for the entire semester cancelled immediately. The Office of Access and Equity, who oddly is in charge of threat assessment issues, also failed to inform me for FOUR FULL DAYS, all while I bombarded them with emails concerning my objections to being placed on leave with no hearing in connection with discrimination complaints relating to my exam. They told me only midway into our short Zoom call at about 3:10 pm today.
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. 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.
I’m sorry I was unaware and was led to believe the suspension was a result of the exam/discrimination complaints, and no one disabused me of this until just a few minutes ago.
While there is still no grounds for investigating Professor Kilborn, or apologizing for his exam, it is clear that Dean Dickerson did not act improperly with regard to the suspension. I apologize to Dean Dickerson for my reliance on Professor Kilborn's reports about the sanctions.