The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[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.
[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. (Perhaps this is why Prof. Kilborn apologized when he heard complaints about the matter, according to an Above The Law story.)
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 to my knowledge there was no such discussion by the faculty. Instead, 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"—released the following statement (quoted in an Above The Law story):
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.
[3.] This statement apparently came in response to 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.
[4.] This makes me wonder, and I imagine it makes other faculty members wonder:
[A.] The dean's statement that "Faculty should avoid language that could cause hurt and distress to students" by its terms isn't limited to exams. Is it an echo of the students' general demand (also not limited to exams) that "The school must implement an unambiguous policy with guidelines prohibiting offensive and culturally insensitive language in the classroom by professors"?
[B.] Will there likewise be "thorough review" by the Office of Academic Equity whenever it is alleged that a professor's 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)?
[C.] If "the racial and gender references on the examination were deeply offensive," it seems likely that they would be offensive off the examination, too. What exactly will the rule be when teachers want to talk about racial or sexual harassment, or other mistreatment of people based on race, sex, religion, sexual orientation, and the like? Have we reached a point that one can't even quote epithets in expurgated form? Or is it that all discussion of "deeply offensive" conduct by defendants is itself "deeply offensive," regardless of the words (or letters and underlines) that one uses?
[D.] How can academic freedom and institutional self-government work if these decisions are made and publicly announced by deans, apparently without any real discussion with the faculty as a whole?
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 that the movement to restrict speech in law schools have slipped far beyond that particular controversy.
[5.] A procedural point about this post: I had originally posted a somewhat different version of this post, but 15 minutes after it went up, I got a message from Prof. Kilborn with more information that led me to delete the post and then repost this version. (I tried to do that immediately, but there were technical problems with the Reason content management system; it took about 30 minutes to get it removed.)
The original version of the post reported that Prof. Kilborn had said he had been placed on indefinite administrative leave, all his classes were cancelled, and he was barred from campus and faculty communications, with no explanation for why this happened, with the Dean saying that the "Office for Access and Equity" would explain more. I e-mailed the Dean and an Associate Dean to ask for their version of the story, but got a message from central university saying "the university cannot comment on personnel matters."
That much appears to be correct—but it turns out (and Prof. Kilborn e-mailed me to say that he just learned it this afternoon, despite his repeated earlier attempts to get an explanation) that the suspension appears to be based on a separate claim, which is that Prof. Kilborn had said something threatening in a follow-up discussion. Prof. Kilborn's view is that his statement was misinterpreted, and that the suspension and cancellation of classes is unjustified (especially given that the university is being taught remotely in any event). But that is now a separate matter from the Dean's condemnation of the exam question, the Dean's statements about "language that could cause hurt and distress to students," and the Office for Access and Equity investigation based on the exam question. I therefore took down the post and recast it to avoid the discussion of the suspension; but I've added these paragraphs just to make clear the change that was made.