[1.] Here’s the text of an exam question (worth 1 point out of 50) administered in Prof. Jason Kilborn’s civil procedure class at University of Illinois Chicago John Marshall Law School:
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. [discussion of other evidence omitted] 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?
As readers of this blog doubtless gathered, the “n____” and “b____” were what was written on the exam; as usual, I don’t expurgate such words in quotes—the professor had expurgated them himself on the exam. Yet Prof. Kilborn reports, in a post to a law professor discussion list:
[I]n 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.
My dean has offered no explanation of what behavior of mine warrants this flagrant violation of university procedure and basic fairness, though she promised our Office for Access and Equity (mentioned in the story) would be reaching out to explain.
I e-mailed the Dean—who is also the President of the American Association of Law Schools, and who in that capacity has said that all professors at all law schools “must work to transform our schools into antiracist organizations“—for her and the school’s side of the story, and got this response from the university: “Thank you for reaching out to the law school. Respectfully, the university cannot comment on personnel matters. The university is committed to an environment where there is respect for the dignity and rights of others and where a variety of ideas can be reasonably proposed and critically examined. All members of the UIC community are expected to follow the university and state codes of conduct and all applicable university policies.” I appreciate the law school’s reasons for not commenting, and I recognize that it’s possible that Prof. Kilborn’s account is mistaken or incomplete in important ways. But at this point, I have no reason to doubt his statement about what happened to him. (Naturally, I will update this post as I learn more information.)
[2.] Now I think that one can plausibly argue that exam questions should stay away from certain topics—not just words but whole topics, such as racial harassment or rape or abortion or child abuse—that are likely to distract certain students, especially when those topics aren’t central to the class, even though law school classes shouldn’t avoid such topics. The purpose of an exam is to evaluate student knowledge, usually based on hypotheticals; it’s not, as with the class itself, to promote debate or to teach the facts (however upsetting the facts might be) or to accustom students to the norms of legal profession (which generally include accurate quoting of unpleasant facts). And perhaps, the argument would go, this could even be set forth as a matter of school policy and not just a matter of professor discretion, on the theory that standard norms of academic freedom are for teaching and scholarship, but don’t fully apply on exams.
Of course, one could also argue the other side—that exam questions should evaluate student ability to deal with difficult facts that can be relevant to the topic of the class, even if not a necessarily inherent part of the topic. (Many leading civil procedure cases do involve discrimination, such as the hugely important Ashcroft v. Iqbal.) Moreover, in recent years we’ve seen a movement to integrate discussions of race, racism, white supremacy, slavery, and the like into more classes, even ones where they wouldn’t have been raised before. That would sit uneasily with a prohibition on even mentioning such material on the test. These are interesting questions, which I can imagine a faculty debating.
But such concerns, it seems to me, can’t justify administrative punishment of the sort the Dean is reported as having imposed, simply because the professor included a problem about race and sex discrimination on a civil procedure exam. And that is especially so in the absence of any clear rule from the school prohibiting such topics on exams; to my knowledge, there is no such rule at UIC or certainly at law schools in general.
What have universities come to when this can happen? And this is happening to a tenured professor—it shouldn’t happen to anyone, but the Dean’s apparent willingness to go after even people who are protected by tenure contracts (if Prof. Kilborn’s report is correct) shows that no-one is safe.
[3.] As you might gather, in between the exam and the suspension came a student petition, this one endorsed by the school’s Black Law Students Association:
Call to Action: Insensitive and Racist Content on UIC John Marshall Law School Exam!
“N_____” and “B_____”: The Inexcusable Usage of ______ on a UIC John Marshall Law School Civil Procedure II Exam.
On December 2, 2020, UIC John Marshall Law students sat for a Civil Procedure II( JD-421-0) final examination instructed and administered by Professor Jason Kilborn. 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.
The slur shocked students created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam. Considering the subject matter, and the call of the question, the use of the “n____” and “b____” was certainly unwarranted as it did not serve any educational purpose. The question was culturally insensitive and tone-deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year.
The integration of this dark and vile verbiage on a Civil Procedure II exam was inexcusable and appropriate measures of accountability must be executed by the UIC administration.
We cannot ignore the history and violence the N-word represents and the psychological impact, and mental trauma students were subjected to. The implication of such vile and gratuitous verbiage on a Civil Procedure II exam demonstrated a lack of respect, decency, and civility.
What must be done:
We demand action and actual change.
- Professor Kilborn should immediately step down as the chair of the academic affairs committee and from all other committee appointments he holds. Someone who exhibits such poor judgment should not be able to hold an additional position of power. Specifically, one with influence over academic affairs.
- The school must ensure that all mandatory courses are taught by multiple professors—empowering students with the opportunity to take classes from professors without a history of bias.
- As requested in BLSA’s demand letter on June 5, 2020 and stated herein, we continue to advocate strongly for mandatory cultural sensitivity training for faculty and staff.
- The school must implement an unambiguous policy with guidelines prohibiting offensive and culturally insensitive language in the classroom by professors. We expect to see this policy implemented by the Spring 2021 Semester, starting January 11, 2021.
- The Administration must plan an open dialogue event with Professor Kilborn during the Spring 2021 Semester. Preferably moderated by a professor at UIC John Marshall Law School.
There is a problem at UIC John Marshall Law School. It is evident in all the letters and statements we have written before. We do not have time for band-aid solutions. We need surgery and this operation is not up for debate. Act now.
And the Dean’s response to that petition, as quoted in an Above The Law story (emphasis added):
The Law School recognizes the impact of this issue. Before winter break, Dean Dickerson apologized to the students who expressed hurt and distress over the examination question. The Law School 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. Those with tenure and academic freedom should always remember their position of power in our system of legal education.
The Law School is working with UIC’s Office for Access and Equity to conduct a thorough review of this matter, and Dean Dickerson and other Law School and University leaders have scheduled a meeting with student leaders. We remain committed to ensuring that all of our students have a safe and supportive environment and that all members of the Law School community live up to our shared values.
This should make one wonder:
- Is the dean’s statement that I bolded above, which by its terms isn’t limited to exams, indeed an echo of the students’ demand that “The school must implement an unambiguous policy with guidelines prohibiting offensive and culturally insensitive language in the classroom by professors”?
- Will there likewise be summary suspensions for other professors at this law school whenever the Dean concludes that their hypotheticals are “offensive and culturally insensitive” (in the petition’s words) or “could cause hurt and distress [even with expurgation] to students” (or perhaps just to some groups of students)?
- And, of course, how can academic freedom and institutional self-government work if a professor can be summarily suspended by a Dean on these grounds, without any clear guidance on what sort of exam questions or class discussions or whatever else are permitted?
As readers of the blog know, Prof. Randy Kennedy and I have a forthcoming article (Quoting Epithets in the Classroom and Beyond) that argues that it is quite proper for professors to accurately quote epithets, without expurgation, though we don’t discuss the specific context of exam questions. But this incident seems to show—again, if the alleged facts are correct—that the movement to restrict speech in law schools have slipped far beyond that particular controversy.
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