Wednesday, November 17, 2021

The witch hunt at John Marshall Law

Andrew Koppelman

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.

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