The back story is so goofy as to be the stuff of legend, but that doesn’t mean things can’t get worse. A civ pro prawf at University of Illinois Chicago John Marshall Law School, Jason Kilborn posed this question on his exam.
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?
See what he did there? He didn’t use the words, integral to the question, but just the first letter and parenthetical. And that was all it took. The Black Law Students Association started a petition demanding that action be taken against Kilborn.
Once complaints surfaced, Kilborn apologized but the controversy and allegations only grew. Students eventually brought in Jesse Jackson to bolster their demands that Kilborn be fired. Kilborn was suspended and investigated. He eventually reached a settlement with the university that would allow him to return to his teaching duties, but the university has subsequently reneged on that agreement. It continues to single him out for opprobrium, discipline, and reeducation. The chancellor of UIC has now dug in his heels on the matter.
Organizations like FIRE and Keith Whittington’s Academic Freedom Alliance wrote on behalf of Kilborn, but as revealed by Brian Leiter, things have gone from bad to “crazy.”
Last Friday, the university informed Professor Kilborn’s lawyer that Professor Kilborn would be suspended from teaching this Spring at UIC’s John Marshall Law School (although still paid, and still required to perform administrative duties) so that he can participate in rather time-intensive “re-education” programs: Download 21; 12.16 from Alsterda
Professor Kilborn will be subjected to an 8-week indoctrination course–20 hours of coursework, required “self-reflection” (self-criticism?) papers for each of 5 modules, plus weekly 90-minute sessions with a trainer followed by three more weeks of vaguely described supplemental meetings with this trainer. Since the trainer will provide “feedback regarding Professor Kilborn’s engagement and commitment to the goals of the program,” disagreement or skepticism about the content of the program is presumably not welcome.
This is simply chilling.
If this seems a bit hyperbolic, the letter from UIC is pretty clear about the requirement that Kilborn be subject to the re-education camp of Cornell.
- Professor Kilborn will be enrolled in Cornell University Center for Teaching Innovation,
“Teaching and Learning in the Diverse Classroom Online Course.”… The
course consists of 5 modules spanning 5 weeks. Each module requires an approximate
time commitment of 2-4 hours. - The modules will also be supplemented by readings, podcasts, and/or videos.
- After completion of each module, Professor Kilborn will be asked to prepare a written
self-reflection paper in response to specific prompts. - In conjunction with his Cornell coursework, the Law School is retaining an instructional
advisor to work with Professor Kilborn one-on-one. The advisor is a practicing attorney
with significant experience in employment law and diversity and inclusion consulting and has a sub-specialty in higher education matters. In furtherance of her work in this area, the advisor has taken a similar Cornell course in diversity and inclusion and has earned a certificate in Diversity and Inclusion from Cornell similar to the one Professor Kilborn will earn.
In the past, there have been serious discussions about the propriety and efficacy of law professors using the “N-word” when it’s verbatim in opinions. As for the “B-word,” life’s a bitch. But here, Kilborn used neither word, but the euphemisms so preferred by the sensitive ears that survive hearing it from some lips but not others.
Were the words “necessary” to the civ pro exam? There’s an argument to be made that Kilborn could have avoided any detail by vague implication of “profane” language. But then, it would have opened the door to argument relating to how profane. By including the euphemistic forms of the words, that collateral question was eliminated.
More importantly, this is law school, where minds of mush coming in are supposed to be molded into lawyers. We hear such words. Unpleasant language is banal in the practice of law, and we do not lose our minds over the trauma, or at least pretend to so a dean will rub our traumatized tummies and protect us from the mean man’s euphemisms.
On the other hand, academic freedom protects the decision by Kilborn to use whatever language he, in his pedagogical judgment, determines to be necessary and appropriate to teach and test his subject. This wasn’t about some collateral racist chatter on social media, but actual academic speech. But UIC plans to fix this wrongthink.
In addition, the advisor will assess whether Professor Kilborn is gaining insight, learning,
and competencies in the subject matter presented, with a particular focus on applying the
course content to his work responsibilities as a faculty member.
One might suppose his responsibilities are to teach law, but only after some “self-reflection” and “gaining insight” if he wants to return to the classroom.
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So, basically, any and all discussions regarding racial epithets in law school courses is now effectively banned. In the bright side, if lawyers with common sense can hold on long enough, they can easily beat back these absurd policies, as the irrationally sensitive folks graduating from law schools now will be unable to form cogent arguments in court to defend them, having been reduced to a blithering puddle at the mere mention of race by a white person, while also never having had to even contemplate the issues before in the presence of an adult.
Common sense? I have failed you.
Nobody is truly triggered by this kind of thing. It’s just performative. It’s fun nowadays to make a big stink about something trivial, get lots of attention and pretend like you are speaking truth to power/taking a brave stand. It’s fun to pretend that its the equivalent of standing up to the fire hoses and police dogs at the civil rights marches. And the grownups in the room are both too clueless and too cowardly to rein this in.
SHG,
Jesus.
All the best.
RGK
I wondered what Judge Bennett would have to say about this.
SHG,
Interesting point. I consider your question an “ask” of him.
All the best.
RGK
…and if that don’t fix him, we have other solutions.
Who teaches the teachers and how if even reference to some words is violence? Or is that the point? The words are so anathema that even mention of them being said by others is too much to bear. Can the cycle be broken?
It’s like staring into an abyss or at a car wreck; I’d rather not have to, but I’m going to anyway. I’m sorry for merely agreeing, but this is all too absurd and regressive. In the words of a poet,
I am a sinner
Who’s probably gonna sin again
Lord forgive me
Lord forgive me
Things I don’t understand
Sometimes I need to be alone
Bitch don’t kill my vibe
Bitch don’t kill my vibe
Links be damned, so a quote it is. That’s Kendrick Lamar’s “Bitch, Don’t Kill My Vibe”.
I’m sure he will come to love Big Brother. It is probably just a matter of time until ABA’s “diversity” standard for law school accreditation will require every faculty member to have these “certificates.”
It just occurred to me that if they make it an accreditation requirement, that could actually happen.
This is a possible “concrete measure” to further the environment of equity and inclusiveness. Law schools being what they are, maybe they will impose it on their own without having to be specifically told to do it.
Based on other recent news, I expect the directive to pursue inclusion of people from specified groups on faculty and staff based on their “representation” in the general population of the U.S. may not fly in every jurisdiction. But if they can’t have all the right people, at least they can indoctrinate all the people they do have. (The proposed accreditation standard continues to ignore the exclusion of Furries, without explanation as to why ABA hates the species-dysphoric).
Coming soon, defenses for violent assaults based on mishearing words like figure or twitch.
That’s already come and gone.
And Zappa says:
Playing on my Zappa soft spot is only going to go so far, Steve.
The defenders of the actions taken by UIC against Professor Kilborn routinely fall back on, “Doesn’t he know how offensive this is to black people/women/etc? You shouldn’t put fact patterns on exams that could make people upset. If he is that insensitive, intentionally or unintentionally, he shouldn’t be teaching.” Some even allege it could be a civil rights violation, because it would upset some students more than others, creating a hostile environment. Which beggars the obvious question: where’s the line? Someone could always be upset by an exam fact pattern. The defenders of UIC/BLSA/etc say that line-drawing and rules-haggling over hypotheticals doesn’t matter, and is a distraction from the harm caused.
It’d be fair to take this attitude among a group of friends playing charades, but these are lawyers, law professors, and law students; the whole point is to come up with a workable rule that can be safely followed.
Defenders of UIC argue that it was unnecessary to go anywhere near the line, and the fact that Kilborn did so anyway shows that he has no concern for the sensitivity of his students. Students, admins and quite a few on the faculty are of the view that there is no excuse for testing student sensitivities as the test question could have been written in such a way that no one’s feelings could possibly be hurt.
Is that a good defense?
Since the students, admins, and many faculty are so sure that they could have written the exam question in a way that wouldn’t have offended anyone’s sensibilities or sensitivities, maybe they should put forth an example of what sort of exam question they would have written. It should be easy enough, as they claim to know both where the line is and how to stay far away from it. Apparently only Prof. Kilborn is so clueless as to even remotely approach the line; thus the re-education by experts from Cornell in Teaching in Diverse Classrooms.
Assuming they could and did, would that make what happened to Kilborn, and his punishment, acceptable?
Are there not two separate questions: can it be done v. must it be done or else?
I am going to need to take the course on Teaching and Learning in the Diverse Classroom from Cornell and earn my certificate before attempting to answer these questions. Proceeding without doing so is unsafe.
Presumably he would have been in just as much trouble here if he had actually used the media-blessed terms, “n-word” and “b-word.” The mere recognition that such words exist is apparently profoundly damaging to sensitive audiences.
The media today isn’t what the media once was.
For any who thought it was hyperbole to claim that even saying “the n-word” would, by their own logic, be deemed offensive, here we have it. We apparently need to use a euphemism so non-specific that people don’t know what we’re talking about.
Also, those certificates sound like something the Great and Powerful Oz would hand out, but creepier.
Boss, you had better ban “the n-word” here and move down to the next level. Would ‘race-based epithet’ be a starter? Still too specific?
“We apparently need to use a euphemism so non-specific that people don’t know what we’re talking about.”
Then you’ll just enrage a larger group of wider based minorities who feel they should be offended but don’t know why. EVERYONE will want to burn you!
The certificates that Oz handed out actually mean something.
When reading this I thought UIC stood for University of Illinois in China, not Chicago
The professor could of have said that the supervisor used a racial epithet. He didn’t have to use the exact phrase. Even taking out the subsequent letter of each word the reader is still forced to hear the word in their head as they are reading the question. I think people could justifiably be upset by that–I don’t want to hear that word– and particularly as they are taking a law school exam (its not like they can elect not to read the question). I don’t think the professor should have been fired, but I can understand the law school administration asking professors to be more thoughtful about how they write their questions on tests. And I know that the real world can be unpleasant, and that as real lawyers we confront fact patterns and bad language all the time, but I don’t think in the context of an exam question that it was appropriate.
If the person could hear the word in their head with use of “the n-word and the b-word” and become upset by it, why wouldn’t they hear the word in their head with use of “a racial epithet”? Because it’s less specific, so that then black students might run through their head all the derogatory references they know that exist for black people, wondering which one it might have been? Is this less upsetting?
Is any of it upsetting, or merely something they can latch onto to be outraged about?
Did it make you cry?
Either speech is legal and protected, or it’s not. There is no in between. Saying “stay away from the line” imposes a massive chilling effect on all speakers, one that is untenable in a classroom environment, much less that of a law school. Imposing such a chilling effect risks, among things (as in, actual friggin rights), watering down the education of people who will literally hold the lives of others in their hands.
More than this, it’s possibly the case that the particular racial epithet used is quite important to the pedagogical interests of the class. This may shock you, but I’m not a lawyer, so I don’t know what the “right” answer is to this particular question. But I do know that subpoenas are quite important, and you don’t f with them. I suspect that referencing “the most evil epithet of all time” in this question is either entirely relevant to the answer, or not relevant one bit. And this part of the question is getting at that exact point; using an anonymized epithet wouldn’t allow the professor to test the relevance of that detail. From what little I’ve gathered about law during my time in this here hotel, figuring out which details matter in a case is one of the most important things a lawyer does. To that end, testing a law student’s recognition of salient details is absolutely within the pedagogical purview of a law professor, to the point that the inclusion of almost any detail on a test question is critical and necessary to the teaching of law.
Holding back to avoid performative indignation by oversensitive children does no one any good. The ones who can see through the garbage are fit for legal practice. The ones who can’t see past their absurd outrage aren’t, and should be sent packing.
How is the response from Professor Kilborn not “Pound sand, and if you fire me I’ll see you in court.”
Most people prefer to avoid becoming the center of conflict in the academy.
Apparently he is looking at filing a suit over it.
University of Illinois sounds like a state school to me. From what I think I have learned about the law here and there I would believe that this is a textbook First Amendment violation in that a government entity is restricting speech outside the bounds of any of the permissible exemptions. I may be mistaken, and would not be surprised if I am, but if I’m correct it would seem he has a pretty solid case.
It is and he does. But nobody wants to spend the next few years of their life engaged in litigation, and contrary to popular belief, it costs money to retain counsel. These cases are not necessarily contingency fees.
If he sues, even if he wins, he’s never going to work in higher ed again. The administration is arrayed against him, and I’m sure a large chunk of, if not a solid majority of, the faculty is arrayed against him at UIC. And what other law school admin/hiring committee is going to take him on when he becomes “the guy who sued after he was told to stop being offensive towards black and female students on their exams”? I can easily see a Dean’s office or Admissions nixing such a hire by complaining that bringing Prof. Kilborn on would hurt their efforts to recruit and retain black law students. Sure, he can get a solid chunk of money from the suit, but I imagine he likes having a law school job.
If you sue UIC, you are suing a state entity, which means your suit has to be filed in the Illinois court of claims. The court of claims is a shitty kangaroo Court and lousy place to be. It’s to his advantage to get this resolved without ending up there
ABSOLUTELY INSANE!!!!!
Given the sensitivity of the offended students, once in practice how will they be able to draft a factually sufficient complaint or engage in discovery? How do you allege with sufficient specificity that a defendant engaged in discriminatory conduct without identifying the objectionable conduct?
“Professor Kilborn will be subjected to an 8-week indoctrination course” etc-etc
No job is worth this.