E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In
January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish
persecution of Jason Kilborn, a professor who was accused of racism for asking
students to address an ordinary hypothetical, of a kind they are likely to
encounter in normal legal practice. That episode has now ballooned into calls
for his firing, with an ill-informed Rev. Jesse Jackson leading protests against
him. And the university, while it refuses to fire Kilborn, is continuing to
punish him for things it knows he didn’t do.
The trouble started when, in a
“Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for
discrimination, must disclose evidence to the plaintiff. In the test’s
scenario, 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. (This was
just one of the test’s 50 questions.)
Lawyers face such situations all the
time. The question was entirely appropriate. One student, however, declared
that, on seeing the sentence, she became “incredibly upset” and experienced
“heart palpitations.” The Black Law Students Association demanded that Kilborn
be stripped of his committee assignments, denounced him on social media, and
filed a complaint with the university’s OAE (Office for Access and Equity).
Kilborn felt badly about this
unexpected response, and agreed to talk to one of the complainants. At one
point, the student asked Kilborn why the dean had not sent him the BLSA’s
letter of complaint. He answered, “I suspect she’s afraid if I saw the horrible
things said about me in that letter I would become homicidal.” They continued
talking for several hours. Then, to Kilborn’s astonishment, the student
reported to the school that Kilborn had made a homicidal threat. The dean
summarily placed Kilborn on administrative leave, barred him from campus, and
canceled his classes.
On February 17 the OAE sent Kilborn
a notice of “investigation into allegations of race-based discrimination and
harassment.” Evidently someone had been collecting such allegations, because
there were many new ones. They included the exam question, the comment to the
student (which the notice mischaracterized as “a comment that you would ‘become
homicidal’ if you read the petition”), and — this claim appeared for the first
time — “referring to racial minorities as ‘cockroaches.’” Because the notice
said nothing about when he was alleged to have said that, it was impossible to
respond.
The “cockroaches” claim has since
become the central grievance against Kilborn. It is provably false. The OAE’s
previously confidential “Investigation Report,” newly released in response to
an Illinois Freedom of Information Act request by The Chronicle’s Emma Pettit, shows that the OAE understood that the
“cockroaches” allegation never had any substance — and that the report released
to Kilborn and the complainant (which became public months ago) was misleading
on that crucial point.
The OAE botched its investigation of
Kilborn. It repeatedly cited as “harassment” conduct that no reasonable person
could regard as harassment. It enumerated charges without offering evidence.
And it essentially found that he had violated the school’s discrimination
policy by protesting his own earlier mistreatment.
On May 28 the office sent Kilborn a
letter finding that “your conduct, considered cumulatively and particularly
with respect to the manner of your responses to criticism of the final-exam
question, was sufficiently substantial and repeated that it interfered with
Black students’ participation in the university’s academic program and
therefore constituted harassing conduct.” Most of the evidence on which it
based that finding is, of course, not public. (Kilborn says: “Not only did they
not allow me to confront any evidence of the spurious claims against me; they
did not even confront me with several of the claims that eventually became
their ‘findings.’”)
But the letter is self-refuting. It
contains enough internal contradictions and obvious misjudgments to suggest
that its authors were determined to find him guilty, no matter what.
Further details in a longer piece at
the Chronicle of Higher Education, here. It is paywalled but you can see it if you
register.