The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Andrew Koppelman (Northwestern) writes at the Chronicle of Higher Education about follow-on developments in a controversy that I blogged about last week (the one that began with an exam question that discussed a racial harassment hypothetical, and contained expurgated slurs). An excerpt, though you should read the whole thing:
[Prof. Kilborn writes:] "On Thursday, January 7, I voluntarily agreed to talk to one of the Black Law Students Association members who had advanced this petition against me. Around hour 1 or 1.5 of a 4-hour Zoom call that I endured from 5:00 pm to 9:00 pm with this young man, he asked me to speculate as to why the dean had not sent me BLSA's attack letter, and I flippantly responded, 'I suspect she's afraid if I saw the horrible things said about me in that letter I would become homicidal.' Conversation continued without a hitch for 2.5 or 3 more hours, and we concluded amicably with a promise to talk more later.
"He apparently turned around and reported that I was a homicidal threat. Our university's Behavioral Threat Assessment Team convened, with no evidence of who I am at all, and recommended to my dean that I be placed on administrative leave and barred from campus. […] Having full discretion to implement or reject that recommendation, and knowing me fairly well, having worked with me quite a bit for the past four years, my dean decided that I was, indeed, a homicidal threat." …
The university cannot possibly suspend and bar from campus everyone who uses the occasional violent figure of speech. Such metaphors are common in casual conversation. In context, no reasonable person could take his language literally (assuming that his report of what he said is accurate). Even if one did take it literally, his statement was a speculation about the dean's state of mind, not a statement about his own.
Policies of mandatory investigation are warranted when students report threats. But there needs to be an available mechanism of summary dismissal when such reports turn out to be frivolous. John Marshall Law School has two such mechanisms: First, the Behavioral Threat Assessment Teams are charged with determining whether threats are genuine, and, second, the dean has discretion to accept or reject their recommendations.
It is hard to believe that Dean Dickerson would have reacted the same way if Kilborn's exam had not already provoked controversy. The complaints about the exam were apparently not sufficient to trigger the sanctions that might mollify the complaining students. The purported threat, however, offered that opportunity.
Given that this whole incident was occasioned by a "Civil Procedure" exam, it is hard not to remark upon the denial of due process. Kilborn has been given no opportunity to defend himself. When students make unreasonable demands, a school has an obligation to protect its faculty. The law school's behavior is reminiscent of indiscriminate blacklisting during the McCarthy era.
The administration's behavior creates a climate of terror. Faculty have been asked at many colleges to give more attention to issues of racial inequality. But how are they to do that without acknowledging distressing facts? …